By Benjamin P. O'Glasser & Erica Shaffer
During the 2017 legislative session, the Oregon Legislature passed Senate Bill 481 which amends the current public records process and timelines. Prior law required completion of the records request “as soon as practicable without unreasonable delay.” The new law, effective January 1, 2018, retains that requirement, but adopts specific timeframes for acknowledging and responding to public records requests. Additionally, the law provides specific exceptions to the timelines, as well as dispute resolution mechanisms.
New Statutory Timelines
Under the new law, a public body will have approximately three total calendar weeks to complete its response to a public records request that it receives in writing, so long as it timely acknowledges such requests. The timelines discussed below are “business day” timelines that exclude Saturdays, Sundays, and legal holidays. Also excluded are days where a public body is not staffed, or, for educational providers, any day on which the central administration’s office of the district or university is closed.
First, within five business days of receiving a public records request, a public body must acknowledge receipt of a request. The acknowledgement must state that the public body is, is not, or is uncertain whether it is the custodian of the requested records.
Second, within ten business days after it issues an acknowledgement, a public body must complete its response to the request. A response is complete when the public body provides access to the requested documents; asserts any applicable exemptions to disclosure; separates out any material that is exempt from disclosure; states in writing if it is not the custodian of any requested records; cites any applicable law that prevents it from responding to the request; and states that the requester can seek review of the public body’s determinations pursuant to a number of statutes. This requirement may not apply in all situations, such as where an acknowledgement or citation to a particular law would itself constitute a violation of the law.
Exemptions to Production Obligations and Dispute Resolution Procedures
Notably, a public body is not rigidly required to produce records, on the timeline above, in all cases. If a request is unclear, a public body’s production requirements are suspended pending a response to a request for clarification. If a request seeks records that already are publicly accessible, a public body can simply inform the requester of that fact. If a request triggers statutory fees, production obligations are suspended when the public body informs the requester of such fee; if in response a requester fails to make payment within 60 days, the public body may close the request. Additionally, if a timely completion of a response is not possible, a public body may state that it is processing the request and provide a reasonable estimated date of completion.
The law recognizes that public bodies may not have sufficient staffing levels to meet the law’s timelines at all times, or even to provide such estimates. Accordingly, the law provides exceptions to the statutory timelines due to unavailability of necessary staff or volunteers, where a public body is handling a large volume of public records requests, or where meeting the deadlines would impede the public body’s ability to perform other necessary services. If such a circumstance exists, the requirements revert to prior law and the public body must only acknowledge and complete a response to a request “as soon as practicable and without unreasonable delay.” However, if a public body does not timely respond such conduct is deemed a denial of the request.
A requester can immediately challenge an express or implied denial of a request to the Attorney General, district attorney, or court. Likewise, a requester can challenge the reasonableness of an estimated date of completion provided by a public body. The Attorney General, district attorney, or court is vested with the power to order and set timelines for compliance with production requirements. The law requires the Attorney General to maintain and publish a detailed and comprehensive catalog of exemptions to production requirements. In order to keep this catalog up to date, district attorneys are required to publish to the Attorney General any orders they issue pursuant to the law.
The accelerated timelines may create concern for public bodies about an increased risk of inadvertent production and/or privilege waiver. The new law creates limited statutory immunity for responses made in good faith and not in violation of an affirmative prohibition in state or federal law. Likewise, production under the new law does not waive the public body’s right to assert privilege or otherwise object to the admissibility of a public record that it produces.
In order to be ready for this bill to take effect, all public employers should review their public records request policies or procedures to ensure the required communication pieces are part of the process and that the information will be provided within the established timelines.
The full text of SB 481 can be found here
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