DAV~ FROHNMAYER
A1TORNEY GENt:RAL
STATE OF OREGON
Alice Dale
DEPARTMENT OF JUSTICE
J usticc Building
Salem, Oregon 97310
Telephone: 15031 378·4400
June 11, 1987
Oregon Public Employees Union
1127 25th Street SE
Salem, Oregon 97309
Re: Public Records Petition: PROD 5 Study
Dear Ms. Dale:
N!LLJ,\M F GARY
This letter responds to your June 4, 1987 petition for an
Attorney General's public records disclosure order. The
petition asks the Attorney General to direct the Executive
Department to produce copies of the "PROD 5 Study of the
Employment Division ••• " For the reasons set forth below, we
respectfully deny the petition.
The Executive Department of the State of Oregon
commissioned the Oregon State University Productivity Center to
survey Employment Division employes as part of the Executive
Department's management review of the Employment Division. The
Executive Department and the Productivity Center administered a
"PROD 5" survey questionnaire to Employment Division employes
with an instruction that "[c]confidentiality and anonymity of
employee responses is assured." The Productivity Center
compiled and analyzed the responses in a seven-hundred page
PROD 5 Study which then was used by the Executive Department in
preparing an April 7, 1987 report entitled "Department of Human
Services Employment Division Management Review." The results
of the PROD 5 Study were summarized in the April 7, 1987
report. We conclude that the PROD 5 Study is exempt from
mandatory disclosure requirements, pursuant to a specific
provision of the public records law.
ORS 192.500(2)(a) exempts from otherwise mandatory
disclosure:
Alice Dale
June 11, 1987
Page 2
"Communications within a public body or between
public bodies of an advisory nature to the
extent they cover other than purely factual
materials and are preliminary to any final
agency determination of policy or action •. "
We recognize that this exemption is qualified by the additional
language of ORS 192.500(2)(a):
" • • This exemption shall not apply unless
the public body shows that in the particular
instance the public interest in encouraging
frank communication between officials and
employes of public bodies clearly outweighs the
public interest in· disclosure;"
We conclude that the Executive Department may withhold
disclosure of the PROD 5 Study, because this particular public
record satisfies the pertinent statutory tests for exemption
from disclosure.
The PROD 5 Study is a communication within a public body
or between public bodies. The Study is based upon
communications by Employment Division employes to Executive
Department management, executive staff of the Employment
Division, and oregon State University (OSU) consultants. The
study itself is presented as a communication from OSU's
Productivity Center to the Executive Department.
The PROD 5 study is of an advisory nature preliminary to
final agency action. The Study analyzed employe responses and
comments on agency self-evaluation questionnaires for the
Executive Department's subsequent use in preparing .and
presenting the April, 1987 "Management Review Report."
The PROD 5 Study covers other than purely factual
materials. The Study analyzes subjective responses and
comments on employe questionnaires in narrative, statistical
and graphic formats and contains excerpts of many subjective
comments of Division employes. The Study contains the
Productivity Center consultants subjective comments and
recommendations.
Finally, it is demonstrably clear that, in this particular
instance, the public interest in encouraging frank
communication outweighs the public interest in disclosure. The
public interest in allowing the Executive Department to obtain
candid comments from Employment Division employes about
Alice Dale
June 11, 1987
Page 3
division operations and their own productivity for use in a
management review report, is great. To encourage the candor
needed for a meaningful study, the Executive Department and its
consultant, the Productivity Center assured confidentiality and
anonymity to employes who responded to the survey. Indeed, the
employes' responses, comments and identities would be exempt
from disclosure under another subsection of the public records
law. ORS 192.500(2)(c) (exempting from required disclosure
reasonably confidential information submitted voluntarily and
in confidence to a public body that obliges itself in good
faith not to disclose the information). Moreover, disclosure
of the PROD 5 Study presently is sought in an atmosphere of
conflicting claims by management and employe representatives
about potential future misuse of information contained in the
advisory study.
It thus appears that the ability of the Executive
Department and the Employment Division to conduct future
self-critical reviews "would be severely handicapped" if the
PROD 5 Study of the Employment Division were made generally
available for inspection. Cf. Bay Area Health District v.
Griffin, 73 Or App 294, 300, 698 P2d 977 (1985). Although the
court in that case held that a portion of a public agency's
self-evaluation study was not exempt from disclosure under ORS
192.500(2)(a), because that portion was not based upon candid
communications, the court recognized that the public interest
in public agencies obtaining candid self-evaluations would be
compromised by disclosure of other portions of a consultant's
study based on employe comments. The PROD Study is comprised
of analysis and excerpts of employe responses and comments, and
its wholesale disclosure would be contrary to the public
interest identified in the Bay Area Health District case. See
also briefs filed by the state in Coos County v. Oregon
Department of Fish and Wildlife, 83 Or App 696, ___ P2d
(1987) (aff'd. without opinion), Sup. ct. rev. pending.
On the other hand, we do recognize the interest of the
public in knowing what its government's employes think about
their jobs. Here, however, that public interest is met to
large extent by the availability of the summary of the PROD 5
Study in the April, 1987 Management Review Report prepared by
the Executive Department~ We also note that the Executive
Department has offered to make the PROD 5 Study available for
inspection by a representative of the Oregon Public Employees
Union under procedures designed to assure confidentiality of
employe responses and comments. On balance, the public
interest in non-disclosure of the PROD 5 Study clearly
outweighs the interest in its wholesale disclosure.
Alice Dale
June 11, 1987
Page 4
We conclude that the PROD 5 Study is exempt from
disclosure under ORS 192.500(2)(a). The petition for a public
records disclosure order is denied.
Respectfully submitted, Je--.c/ r. )ff~~
JAMES E. MOUNTAIN, JR.
Special counsel to the
Attorney General
cc: Fred Miller, .Director, Executive Department
JEM:cm
0200a
