HARDY MYERS
ATTORNEY GENERAL
Donna Collins
1815 Daemon PL NW
Albany, OR 97321
DEPARTMENT OF JUSTICE
1162 Court Street l\iE
Justice Building
S.1ll'm, Oregon 97310-0506
Telephone: (503) 378-4400
TTY: (503) 378-5938
July7, 1999
Re: Petition for Public Records Disclosure Order:
Oregon Department of Education Records
Dear Ms. Collins:
DAVID SCHUMAN
DEPUTY ATTORNEY GENERAL
In your letter to the Attorney General dated June 28, 1999, you asked for the assistance
from this office in obtaining records from the Oregon Department of Education's Office of
Special Education. We are treating that letter, which we received on July 2, 1999, as a petition
under the Oregon Public Records Law, ORS 192.410 to 192.505, asking the Attorney General to
direct the Oregon Department of Education (ODE) to make available educational and public
records concerning your family that ODE received from the Greater Albany Public School
District, as well as other documents concerning your family that were exchanged between the
school district and ODE. This letter is the Attorney General's order on that 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 information, the public body must separate the information and
make the nonexempt information available for examination ifit is "reasonably possible" to do so
while preserving the confidentiality of the exempt information. Turner v. Reed, 22 Or App 177,
186 n 8, 538 P2d 373 (1975). The Attorney General may order a state agency to disclose public
records only when the agency has denied a request for the records. ORS 192.450(1); Morse
Bros. v. ODED, 103 Or App 619, 622, 798 P2d 719 (1990) ("The Public Records Law clearly
contemplates that agencies have the opportunity to review the requested records and to act on the
request before the Attorney General or the courts can review the matter.").
Donna Collins
July 7, 1999
Page 2
Suzy Harris, Legal Specialist for ODE, informs us that you have filed several complaints
with ODE over the last three years concerning the Greater Albany School District, but that ODE
has no record of you requesting records from ODE prior to your letter to State Superintendent
Bunn dated June 3, 1999. On June 17, 1999, Ms. Harris wrote to you and asked you to clarify
the scope of your June 3rd request. Specifically, Ms. Harris asked whether you wanted records
concerning all or only some of the complaints you filed, whether you wanted only the school
district's responses to a particular complaint or all documents related to a complaint and whether
you wanted any other correspondence that is not related to a formal complaint. Ms. Harris
informs us that ODE has not denied your request for records and is willing to disclose any
nonexempt documents once you have clarified the scope of your request.
When an agency postpones action on a public records request to seek clarification from
the requestor as to the records sought or to consult with its legal counsel, 11 the agency does not
thereby actually or constructively deny the request. See ATTORNEY GENERAL'S PUBLIC RECORDS
AND MEETINGS MANUAL (1997) at 16. Because ODE has not denied your records request, we
respectfully deny your petition as premature.
AGS02452
DA YID SCHUMAN
Deputy Attorney General
c: Suzy Harris, Oregon Department of Education
Ji You expressed concern in your letter about paying the Attorney General's office to advice ODOE
concerning a public records matter. The Public Records Law permits a state agency to charge for its actual costs in
making public records available to a requestor. ORS 190.440(3). These charges may include the costs oflocating
requested records, reviewing the records to separate exempt materials from those that are not exempt from
disclosure and supervising a person's review of original records in order to protect the records. ATTORNEY
GENERAL'S PUBL!C RECORDS AND MEETINGS MANUAL (1997) at 11. If an attorney assists an agency in reviewing
and segregating the exempt and nonexempt records in order to comply with a records request, the agency may
charge the requestor for those costs, although any costs incurred by an agency for legal assistance in determining the
parameters of the Public Records Law or the agency's general responsibilities under the law are not recoverable
costs. Id.
