I. Purpose.
The City of Salem recognizes that Oregon Public Records Law (ORS 192.410-192.505) gives members of the public the right to inspect and copy certain public records maintained by the City.1 The City also recognizes that certain records maintained by the City are exempt from public disclosure, or that disclosure may require balancing the right of the public to access the records against individual privacy rights, governmental interests, confidentially issues and attorney/client privilege. Additionally, when the City receives a request to inspect or copy public records, costs are incurred by the City in responding to the request. The purpose of this Public Records Policy is (a) to establish an orderly and consistent procedure for responding to public records requests; (b) to establish the basis for a fee schedule designed to reimburse the City for the actual costs incurred in responding to public records requests; and (c) to inform citizens of the procedures and guidelines that apply to public records requests.
1 The City is required to respond to public requests by Oregon Public Records Law. The Federal "Freedom of Information Act" (FOIA) does not apply to requests for the City’s public records. This law only applies to requests for public records maintained by the federal government.
II. Policy.
It is the policy of the City to respond in an orderly, consistent and reasonable manner in accordance with the Oregon Public Records Law to requests to inspect or receive copies of public records maintained by the City. The City must respond to the request within a reasonable amount of time. What is "reasonable" depends on the size and complexity of the request, available staff time and resources, and whether legal counsel needs to be consulted prior to disclosing the requested records.
III. Public Records.
Oregon Public Records law defines a public record as:
"any writing containing information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics." ORS 192.410 (4).
A record may be handwritten, typed, photocopied, printed, microfilmed, and exist in an electronic form such as e-mail or a word processing document, or other types of electronic recordings.
Many public records requests are requests for information that would actually require the creation of a new public record. Public bodies are not obligated under Oregon’s Public Records Law to create new public records where none exists in order to respond to requests for information. Although a public body may, if it chooses, create a new record to provide information, the public body does not have to create a new record and only has a duty to allow the inspection and copying of an existing public record.
The City is obligated to provide public records in the format in which they exist. If requested public records are in electronic form, the City will make arrangements to inspect the record with the appropriate device, such as a computer or tape recorder. The City is not obligated to provide a public record in another form, such as a written transcript. The City may provide the public record in an alternative format such as a transcript if it wishes and the person making the request fully reimburses the City for the costs of providing the record in such alternative form. This City will provide records in alternative format at no cost, if necessary to provide reasonable accommodation to persons with disabilities.
IV. Public Records Exempt from Disclosure.
There are numerous types of public records that are exempt from disclosure. Many of these exemptions may be found in ORS 192.501 and ORS 192.502. Others may be located in other Oregon statues. A few specific exemptions worth special notice are as follows:
A. Personal Safety Exemption - ORS 192.445(1). If an individual requests in writing that a public body not disclose the phone number or address of the individual, the public body is prohibited from disclosing the information if the safety of the individual or family member would be in danger.
B. Public Records Relating to Pending Litigation - ORS 192.501(1). If a public body is involved in litigation, or if litigation is reasonably likely in the future, the public records relating to the litigation are exempt from disclosure.
C. Archeological Sites or Objects - ORS 192.501(11). Information concerning the location of archeological sites or objects are exempt from disclosure, unless requested by the governing body of an affected Indian tribe.
D. Personal Discipline Actions - ORS 192.501(12). Public records of a discipline action or materials or documents supporting that action are exempt from disclosure.
E. Threatened or Endangered Species - ORS 192.501(13). Certain information regarding the habitat, location or population of any threatened or endangered species is exempt from disclosure.
F. Personal Privacy Exemption - ORS 192.502(2). Information of a personal nature, such as that kept in a medical or personal file, is exempt from disclosure if disclosure would be an unreasonable invasion of privacy, unless disclosure is in the public interest by clear and convincing evidence. Personal information includes home address, phone number, weight and age.
G. Public Employees Addresses, Dates of Birth and Telephone Numbers - ORS 192.502(3). The addresses, dates of birth and phone numbers of public employees and volunteers which are maintained by the public body in personnel files are exempt from disclosure.
H. Confidential Information Submitted by Citizens - ORS 192.502(4). Information submitted to a public body in confidence and not required to be submitted, where the information should reasonably be considered confidential, and the public body has in good faith obliged itself to keep the information confidential, is exempt from disclosure.
I. Records Deemed Confidential or Privileged under federal and state laws or regulations - ORS 192.502(8) & (9). Communications that are subject to attorney/client privilege, such as communications between the City Attorney’s Office and a City Department or staff person are exempt from disclosure.
J. Social Security Numbers. No social security numbers should be disclosed without prior consultation with the City Attorney. If a public record contains a social security number, the number should be blacked out prior to disclosure.
V. Copyrighted Material.
If the City maintains public records containing copyrighted material, the City will permit the person making the request to inspect the copyrighted material, and may allow limited copying of such material if allowed under Federal copyright law. The City may require written consent from the copyright holder or an opinion from the person’s legal counsel before allowing copying of such materials.
VI. Fees.
The fee for responding to a public records request will be that established in the fee schedule adopted by the City which is in effect at the time the request is submitted. The fee will be reasonably calculated to reimburse the City for its actual costs in making the records available and may include:
A. Charges for the time spent by City staff or any City contractor to locate the requested public records, to review the records in order to determine whether any requested records are exempt from disclosure, to segregate exempt records, to supervise the requestor’s inspection of original documents, to copy records, to certify records as true copies and to send records by special or overnight methods such as express mail or overnight delivery; and
B. A per page charge for photocopies of requested records.
C. A per item charge for providing CDs, audiotapes, or other electronic copies of requested records.
The City will prepare an estimate of the charges that will be incurred to respond to a public records request. Prepayment of the estimated charges is required before making the records available for inspection or copying or making copies of any requested records. If the actual costs incurred by the City to respond to a records request are less than the amount of any required prepayment, the overpayment will be promptly refunded. If the actual costs incurred by the City to respond to the request are more than the amount of the prepayment, the City will charge the requestor for all such additional costs, and may require an additional amount in prepayment.
Unless otherwise prohibited by law, the City may, at the City’s discretion, furnish copies of requested records without charge or at a reduced fee if the City determines that the waiver or reduction of fees is in the public interest.
VII. Procedure.
The following procedures must be followed in submitting and responding to requests to inspect or receive copies of public records maintained by the City:
A. Custodian of the Records. The City Recorder is the designated Custodian of the Records for all public records maintained by the City, regardless of which City Department where the record is located. In the City Recorder’s absence the Deputy City Recorder shall serve as the Custodian.
B. Request in Writing. A request to inspect or obtain copies of a public record must be made in writing. Persons are encouraged to use the standard Public Records Request Form ( see Form A: Public Records Request) provided by the City, although other forms of written requests will be accepted if all the information required on the standard form is provided.
C. Departmental Policies. Subject to prior approval by the City Manager and the City Attorney, a Department Head may establish a separate Departmental policy to allow verbal or written requests to be made directly to the Department for public records maintained by the Department that are routinely requested by members of the public in connection with the Department’s regular duties.
D. Delivery of Written Request. The written request shall be delivered directly to the City Recorder by the person making the request. Delivery can be in person, by mail, by facsimile or via electronic mail, and shall be directed to: The City Recorder, 555 Liberty Street SE, Room 205, Salem, OR 97301; 503-588-6091 (phone); 503-361-2202 (fax).
E. Processing a Public Records Request.
1. Upon receipt, the City Recorder will date stamp the written request, and immediately forward one copy of the request to the appropriate Department’s Designated Records Manager, along with a Staff Instruction Form, a Denial of Request and a Final Cost Report ( see Form B: Staff Instruction Letter; Form C: Denial of Request; and Form D: Final Cost Report).
2. Upon receipt, the Designated Records Manager shall: (a) estimate the costs necessary to provide the requested records; (b) estimate the amount of time necessary to provide the requested records; and (c) identify any records that the Designated Records Manager believes are exempt from public disclosure. The Designated Records Manager should respond to the City Recorder and the City Attorney with this information within five business days of receipt of the materials from the City Recorder.
3. After receipt of the response from the Designated Records Manager, the City Recorder will contact the person making the request within not more than three business days to advise the person (a) of the estimated costs involved in fulfilling the request; (b) whether additional time is needed to locate the records and/or prepare the estimate; and (c) if the request to inspect or copy the public records is being denied, the basis for the denial. No further work on the request will be undertaken until the estimated costs have been deposited with the City Recorder.
4. Upon receipt of the deposit, the City Recorder will contact the Designated Records Manager and direct the Designated Records Manager to make the public records ready for inspection or to make copies of the public records. The original public records or the copies should be forwarded to the City Recorder along with a report of the final costs incurred in responding to the request. When the Final Cost Report is received, time spent by the City Recorder will be added to determine the total cost.
5. The City Recorder will contact the person making the request and arrange for inspection of the original public records, or to pick up the copies, or to confirm the copies are to be mailed, and advise of the final cost which must be paid before inspection occurs or the copies are provided.
6. If an inspection of original public records is to occur, the City Recorder shall be present at all times to supervise the inspection and to ensure that no documents are removed, destroyed, or otherwise tampered with.
7. If certified copies were requested, the City Recorder will attach the Certification ( see Form E: Certification) to the copies before releasing or mailing them.
8. If the request is being denied, the City Recorder should prepare a written explanation of the denial based upon information provided by the Department Head and the City Attorney, and shall forward the denial to the Requestor.
9. The City Recorder shall establish a system to monitor each step of the process in responding to a request to inspect public records to insure that the person making the request has a response within a reasonable time frame, and shall maintain a copy of each request and corresponding records related to the City’s response, including notes of each contact with the person making the request.
F. Departmental Duties.
1. The Department Head shall appoint a Designated Records Manager, who shall be responsible for reviewing and responding to public records requests received from the City Recorder or made under a Department Policy for responding to routine requests.
2. The Designated Records Manager shall conduct a review to determine what public records, if any, exist which are responsive to the request and if any records might be exempt from disclosure. The Department should not, without prior approval of the City Manager, compile information or create documents related to a public records request.
3. Once it is determined whether any responsive public records exist, the Designated Records Manager should make an estimate of the expected costs in complying with the request ( see Form B: Staff Instructions and Cost Estimates), and forward a copy of the estimate to the City Recorder and the City Attorney within five business days of receipt of the materials from the City Recorder. If the estimate cannot be completed within five business days, the City Recorder should be advised of the estimated time to complete the review and estimate. No further work on the request will be undertaken until the Designated Records Manager has received notice from the City Recorder that the estimated costs have been deposited with the City Recorder.
4. When the City Recorder has given notice that the estimated costs have been paid, the Designated Records Manager should proceed to prepare the original public records for inspection, or have photocopies made of the records if copies have been requested.
5. The Designated Records Manager shall keep a record of all time spent in responding to the request and any applicable costs.
6. The original public records, or the photocopies, if applicable, should be forwarded to the City Recorder, along with a final report of costs incurred (see Form D: Final Cost Report).
G. Place and Time of Inspection. The City Recorder will provide a reasonable opportunity for the inspection, examination or copying of public records. Any inspection, examination or copying of requested records shall take place in City Offices during regular City business hours, at a time determined by the City Recorder.
H. Denial of Public Records Request.
1. Review by City Attorney. Should the Designated Records Manager believe there are public records that are, or may be, exempt from public disclosure, the records shall be provided to City Attorney for review and redaction before the records are released for inspection or copying. The City Attorney shall keep a record of all time spent in reviewing the request and provide that information to the Designated Records Manager for inclusion in the final report of costs incurred.
2. Denial. If a public records request is denied, a denial form ( see Form C: Denial of Request for Access to Public Record) should be completed and forwarded to the City Recorder providing a brief explanation of why an exemption applies to the particular records. The denial form should include a citation to the specific statute upon which the denial is based. The City Recorder shall review the denial form with the City Attorney, and prepare a denial of the request, which shall be provided to the person making the request as soon as is practicable.
3. Appeal. If a public records request is denied, the person making the request may appeal the denial to the Marion County District Attorney’s Office ( see Form F: Petition to Review Denial of Request for Access to Public Records). If the Marion County District Attorney determines that disclosure is appropriate, the Department can disclose the records or the City can challenge the District Attorney’s decision in court.
Policy Forms
Public Records Policy and All Policy Forms (pdf)
Form A: Public Records Request (pdf)
Form B: Staff Instructions and Cost Estimates (pdf)
Form C: Denial of Request for Access to Public Record (pdf)
Form D: Final Cost Report (pdf)
Form E: Certification (pdf)
Form F: Petition to Review Denial of Request for Access to Public Records (pdf)