· HARDY MYERS
ATTORNEY GENERAL
Michael Jacobs
Executive Director
Board oflnvestigators
445 State Office Building
800 NE Oregon, #33
Portland, Oregon 97232
William Joseph Birhanzl
475 N.W. Glisan
Portland, Oregon 97209
DEPARTMENT OF JUSTICE
1162 Court Street NE
Justice Building
Salem, Oregon 97310-0506
Telephone: (503) 378-4400
TDD: (503) 373-5933
November 19, 1999
Re: Petition for Public Records Disclosure Order: Board of Investigators
Dear Mr. Jacobs and Mr. Birhanzl:
DAVID SCHUMAN
DEPUTY ATTORNEY GENERAL
This letter is the Attorney General's order on Mr. Birhanzl's petition for disclosure of
records under the Oregon Public Records Law, ORS 192.410 to 192.505. The petition, which we
received on November 12, 1999, asks the Attorney General to direct the Board of Investigators
(board) to make available for inspection records pertaining to the complete application filed with
the board pertaining to David A. Campbell and Kathleen M. Brock. For the reasons that follow,
we grant part of the petition and respectfully deny part of the petition.
The Public Records Law confers a right to inspect any public records of a public body in
Oregon, subject to certain exemptions and limitations. See ORS 192.420. If a public record
contains exempt and nonexempt material, the public body must separate the materials and make
the nonexempt material available for examination ifit is "reasonably possible" to do so while
preserving the confidentiality of the exempt material. Turner v. Reed, 22 Or App 177, 186, n. 8,
538 P2d 373 (1975).
In a letter dated November 6, 1999, Michael Jacobs, the board's Executive Director,
informed Mr. Birhanzl that the board would provide copies to him of the records he asked to
November 19, 1999
Page 2
inspect, and informed Mr. Birhanzl of the cost that would be incurred in making copies of the
requested files. The letter further informed Mr. Birhanzl that the personal residence address and
telephone numbers of the individuals would be redacted and that photographs and exam
materials would not be released.
ORS 193.445(1) provides that a public body "shall not disclose" the home address or
personal telephone number of an individual
If the individual demonstrates to the satisfaction of the public body that the
personal safety of the individual or the personal safety of a family member
residing with the individual is in danger ifthe home address or personal telephone
number remains available for public inspection.
We are informed by Ginger Simmons, Licensing Specialist for the board, that the home
addresses and telephone numbers of Ms. Brock and Mr. Campbell are unlisted. Both individuals
have also submitted a request for nondisclosure to the board based upon concerns relating to
their personal safety due to their involvement in law enforcement related activities. In addition,
Ms. Brock and Mr. Campbell have filed affidavits with the board, each stating particularized
concerns as to why their personal safety would be in danger if their home address or personal
telephone number were subject to disclosure. Each licensee included examples of personal
threats they have received arising from the performance of their official duties.
Mr. Jacobs informs us that the board has reviewed Ms. Brock's and Mr. Campbell's
requests for non-disclosure and has determined that the personal safety of each individual would
be in danger ifthe home address or telephone number were made available for inspection. See
OAR 137-04-100(1). We will not substitute our judgment for the board in making this
determination.
We conclude therefore, that in this case, the licensees' personal residence addresses and
telephone numbers are exempt from disclosure under ORS 192.445. Because these home
addresses and personal telephone numbers are exempt under ORS 192.445, we need not address
whether the exemption under ORS 192.502(2) could apply.
Neither ORS 192.445 nor 192.502(2) apply to the personal photograph contained in the
file. The photographs of each licensee in their files are subject to inspection.
The records at issue in the petition also contain examination material completed by the
licensees as part of the application process. ORS 192.501(4) exempts from disclosure
Test questions, scoring keys, and other data used to administer a licensing
examination * * * before the examination is given and if the examination is to be
used again. Records establishing procedures for and instructing persons
administering, grading or evaluating an examination or testing procedures are
included in this exemption, to the extent that disclosure would create a risk that
the result might be affected.
November 19, 1999
Page 3
The examination material in the records consists of an answer sheet completed by the
respective licensees as part of the application process. Ms. Simmons informs us that inspection
of this answer sheet would not compromise the integrity of the examination. Accordingly, we
conclude that it is not exempt from disclosure under ORS 192.501(4) and that Mr. Birhanzl may
inspect this document.
Finally, the record pertaining to Mr. Campbell also contains a personnel discipline action
from a previous employment. This personnel discipline action and materials or documents
supporting that action are exempt from disclosure, unless the public interest requires disclosure
in the particular instance, ORS 192.501(12). We have not identified any public interest that
would require disclosure of this discipline material. Therefore, the documents received from the
former employer concerning that employer's discipline action are exempt from disclosure under
ORS 192.501(12). To the extent the licensee in his application material voluntarily discloses the
fact that discipline occurred, however, that information is not protected by the exemption.
In conclusion, we deny the petition as to the information in the licensees' records
consisting of their home addresses and personal telephone numbers. We also deny the petition
as to the record of personnel discipline. As to the remaining records, we grant the petition. The
Board oflnvestigators has seven days from the date of this order in which to comply, ORS
192.450(2).
The Public Records Law authorizes a public body to take reasonable measures to
preserve the integrity of its records and to maintain office efficiency and order, ORS 192.430(2).
The right to inspect public records does not require inspection of an original document, which
contains some information that is exempt from disclosure. In such a case, a public body acts
reasonably ifit furnishes a copy of the original, with the exempt material blanked out. See ORS
192.505; ATTORNEY GENERAL'S PUBLIC RECORDS AND MEETINGS MANUAL (1997) at 10.
Because the requested records are original documents, the agency may include the cost
of having a person present when Mr. Birhanzl inspects any non-redacted records subject to
inspection. The agency may charge a fee to reimburse it for its actual cost in providing Mr.
Birhanzl an opportunity to inspect the records, and the costs incurred in providing redacted
copies ofrecords, including the time spent by agency personnel in reviewing the records.
AGS03463
Sincerely,
DA YID SCHUMAN
Deputy Attorney General
Oregon Attorney General Public Records Orders
