Charles F. Hinkle and Daniel A. Williams, June 1, 2001

              HARDY MYERS
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DEPARTMENT OF JUSTICE
Charles F. Hinkle
Stoel Rives LLP
900 SW Fifth Ave, Ste 2600
Portland, OR 97204-1268
Daniel A. Williams
University of Oregon
Vice President for Administration
1283 University of Oregon
Eugene, OR 97403-1283
1162 Court Street NE
Justice Building
Salem. Oregon 97301-4096
Telephone: (503) 3784100
Tl"Y: (503) 371!-5938
June 1, 2001
Re: Petition for Public Records Disclosure Order:
University of Oregon Records
PETER D. SHEPHERD
~EPt.rrY ATIOR.NeYCF.NER.At
This letter is the Attorney General's order on the petition for disclosure of records
under the Oregon Public Records Law, ORS 192.410 to 192.505 that we received on May
25, 2001. 1 The petition asks the Attorney General to order the University of Oregon
(university) to release a copy of the report evaluating the women's basketball program
that was furnished to the university by the law firm of Bond, Schoeneck & King, LLP
(management report).2 For the reasons that follow, we deny the petition in part and grant
the petition in part.
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 if it is "reasonably
1 The petition states that Mr. Hinkle is "writing on behalf of the petitioners, Oregonian Publishing
Company, publisher of The Oregonian, and its staff writer, Ken Goe."
2 The petitioners' request for records, a letter dated April 25, 2001, from Ken Goe to the university's
athletic director. Bill Moos, sought records in addition to the management report. We read the May 25"'
petition. however, as pertaining to the management report only.
Charles F. Hinkle
June 1, 2001
Page2
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).
1. Discussion
The management report sought by petitioners is a 32 page document (including
cover letter) with several records attached as an appendix. Those records consist of: (i)
personnel evaluations of the former women's basketball coach, Jody Runge, and
correspondence regarding the same from Ms. Runge to the university's director of
athletics, Bill Moos, and to Ms. Runge from the senior women's administrator for the
university's athletics department, Renee Baumgartner; (ii) a compilation of student­athlete
evaluations of the 2000/01 women's basketball program and a comparative chart
summarizing four categories of evaluation scoring for men's and women's basketball,
soccer, volleyball and wrestling; (iii) a one-page summary of student-athlete exit
interviews regarding the 1998/9 women's basketball program; (iv) a typewritten page of
notes containing concerns of student athletes; (v) a handwritten page of notes from
student-athlete exit interviews; and (vi) a chart setting out the expense budgets of
women's sports at the university.
By letter dated May 7, 2001, the university's Vice President for Administration,
Daniel A. Williams, denied the petitioners' request for a copy of the management report,
stating that the report is a "personnel record" and also contains "student records." We
first examine the extent to which the management report is a personnel record and then
consider it as a student record. Finally, we also consider whether the report is exempt
from disclosure as an internal advisory communication. ORS 192.502(1).
a. Personnel Records
ORS 351.065 authorizes the State Board of Higher Education to adopt rules and
orders by or through each institution under its control restricting access to the
institution's personnel records unless the institution executive finds that the public
interest in maintaining individual rights to privacy in an adequate educational
environment would not suffer by disclosure. ORS 351.065(1),(2). ORS 351.065 further
provides:
(5) Any category of personnel records specifically designated as
confidential pursuant to valid rules or orders pursuant to this section shall
not be deemed a public record for the purposes of ORS 192.420.
(6) "personnel records" means records containing information kept by the
institution, division or department concerning a faculty member and
furnished by the faculty member or by others about the faculty member at
the member's or at the institution, division or department's request,
including, but not limited to, information concerning discipline,
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Charles F. Hinkle
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membership activity, employment performance or other personal records
of individual persons.
The university has promulgated rules under the delegation from the Board of
Higher Education provided in OAR 580-022-0060. The university's rules provide that
records containing information concerning an "academic staff member," including
information as to professional performance, are "personal records."3 OAR 571-030-
00 l 0( 4). The university may not voluntarily release personal records to other than
specified university personnel without the faculty member's written consent. OAR 571-
030-0025.
Ms. Runge's 1993 notice of appointment provides that she has the rank of
"'professor" and that her appointment is within the athletics department and the division
of administration. The university's rules do not define "academic staff member," but
rules promulgated by the Board of Higher Education regarding academic classifications
clarify that university personnel appointed with a faculty rank, e.g., professors, are
academic staff members. See OAR 580-020-0005(1) and (4). Because Ms. Runge was
appointed to the academic rank of professor, we conclude that her personal records, as
defined by OAR 571-030-0010(4), are confidential personnel records under ORS
351.065(5) that are not a public record for purposes of the Public Records Law.
Therefore, to the extent that the management report and its appendix constitute a
confidential personnel record, the Attorney General does not have the authority under the
Public Records Law to order its disclosure by the university.
In a previous public records order, this office considered the university's
redaction of faculty members' names from documents concerning the existence of
hazardous materials on university property and concluded that they did not qualify as
personnel records under ORS 351.065. In reaching that conclusion, we characterized the
types of records that could constitute "personnel records" as follows:
"[P]ersonnel records" must relate directly to a faculty member's
performance as a faculty member so as to implicate his or her continued
relationship with the university.
Public Records Order, January 3, 1990, Rydberg at 3. In granting the petition to order
disclosure, we explained why the documents in question, although naming faculty
members, were not "about" those members so as to qualify as personnel records that the
university could classify as confidential.
The records do not relate to faculty evaluation, and have not been retained
in individual faculty members' tiles. Nor do they appear to have been
generated for the purpose of measuring the employment-related
performance of specific named faculty members.
3 As relevant to this order, the records that rhe university's rules label as "personal" come within the
definition of "personnel" records in ORS 351. 065( 6).
Charles F. Hinkle
June 1, 200i
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Id. We use this same analysis to determine whether the management report or any of the
attached records is a confidential personnel record and, therefore, outside the scope of the
Public Records Law.
The university's counsel, Melinda Grier, informs us that the university's purpose
in seeking the management report was to obtain an independent assessment of problems
that had developed within the women's basketball program. While recognizing that an
assessment of the program would address its "leadership," Ms. Grier explains that "the
University did not seek an independent review for the purpose of determining whether to .
continue Runge's employment." In addition, Ms. Grier informs us that the university
learned of Ms. Runge's interest in the possibility ofresigning two days after having
received the management report and before any meetings or discussions took place
between the athletic department administration and Ms. Runge. Given this sequence of
events, Ms. Grier explains that the university neither intended to nor actually used the
report to evaluate Ms. Runge's performance.4
In light of the university's lack of intent, and actual failure, to use the
management report to evaluate Ms. Runge's professional performance, we conclude that
the management report as a whole is not a personnel record under ORS 351.065(6) and
therefore is not outside the scope of the Public Records Law. From a review of the
contents of the management report, however, we have identified a discrete portion within
the body of the report and all but two of the records within the appendix as confidential
personnel records. A portion of one of the remaining two records within the appendix is
also a confidential personnel record.
The management report describes Ms. Runge's annual performance evaluations,
while included in the appendix are copies of the actual evaluations and correspondence
addressing those evaluations between either Ms. Runge and .Nir. Moos or Ms. Runge and
Ms. Baumgartner. Ms. Grier has confirmed that the university maintained the
performance evaluations and the related correspondence in one of Ms. Runge's
evaluative files and that the university's purpose in requiring the evaluations was to
assess Ms. Runge's performance as head coach of the women's basketball team. We
conclude that the annual performance evaluations appended to the management report, as
well as the related correspondence, are confidential personnel records under ORS
351.065(5) and, as such, are outside the scope of the Public Records Law. For this
reason, the Attorney General does not have the authority to order the university to
disclose those evaluations. We also conclude that, with the exception of the first and last
sentences, the portion of the management report appearing on pages 25 and 26 under the
heading "Annual Personnel Evaluations" discloses the substance of those evaluations
' Under ORS 351.065(3), records that the university uses to evaluate a faculty member must be placed in
one of three evaluative files pertaining to that person. Ms. Grier informs us that the university has not
placed the management report in one of Ms. Runge's evaluation files.
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and, therefore, must also be treated as a confidential personnel record under ORS 351.065
to avoid circumvention of the confidentiality provided by that statute.
Also appended to the management report is a compilation of the written
evaluations of the women's basketball program completed by the student-athletes for the
2000/01 academic year. Ms. Grier has confirmed that the university maintained the
compilation in one of Ms. Runge's evaluative files, and that it used the evaluations to
assess Ms. Runge's professional performance. Therefore, we conclude that the 2000/0I
evaluation compilation is part of a confidential personnel record and not a public record
subject to disclosure under the Public Records Law. A related record in the appendix of .
the management report is a chart displaying the average numerical scores from four
categories of the 2000/01 student-athlete evaluations for the following sports: men's
basketball, women's basketball, soccer, volleyball and wrestling. To the extent that it
reveals the scores taken from the 2000/01 student-athlete evaluations, the chart is a
confidential personnel record. The remainder of the chart, however, is subject to
disclosure under the Public Records Law.
Also included in the appendix of the management report is a one-page typed
summary of exit interviews conducted with student-athletes regarding the 1998/9
women's basketball program, a handwritten page of notes that the assistant athletic
director for student services, Karen Nelson, took from student-athlete exit interviews
(year unknown) and a typewritten page of notes drafted by Ms. Nelson, reflecting
concerns of student athletes about the women's basketball program. Ms. Grier has
confirmed that the university used all three records to assess Ms. Runge's professional
performance. Based on the university's actual use of the records, we conclude that they
are confidential personnel records not subject to disclosure under the Public Records
Law.
The only document in the appendix that is not at least partially a confidential
personnel record is the chart setting out the expense budget of women's sports at the
university.
b. Student Records
The university also explained its denial of the request for the management report
by stating that it contains student records. 5 Both federal and state laws address the
disclosure of records pertaining to university students. The federal Family Educational
Rights and Privacy Act (FER.PA), 20 USC§ 1232g, governs the release of education
records for all educational institutions or agencies to which funds have been made
available by the Secretary of Education. This includes the university. Under FERP A, an
education record is defined as "records, files, documents, and other materials which (i)
contain information directly related to a student; and (ii) are maintained by an educational
5 While Mr. Williams refers to "srudenr records" in his May 7 letter, the relevant starutes and rules use the
term ·'education records." We use the terms interchangeably in this petition.
Charles F. Hinkle
June 1, :;:_: .. j i
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agency or institution or by a person acting for such agency or institution." 20 USC §
1232g(a)(4)(A). The enforcement mechanism in FERPA is monetary- an institution
with policies violating FERP A's proscriptions loses federal funds. This office has
previously concluded that FERP A prohibits the disclosure of personally identifiable
information from education records without prior consent.6 47 Op Atty Gen 1, 35-40
(1993).
State law requires that the Board of Higher Education adopt rules, or delegate the
responsibility to adopt rules, relatin~ to student records "consistent with the requirements
of applicable state and federal law." ORS 351.070(4)(e). Consistent with FERP A, the
university has adopted rules prohibiting the public release of personally identifiable
information from student records without the student's written consent. OAR 571-020-
0030. University rules define education records as "records which contain information
directly related to a student and which are maintained by the University or by a person
acting for the University." OAR 571-020-00!0(l)(b).
To the extent that the management report contains information directly related to
a student, and the information personally identifies that student or makes the student's
identity easily traceable, it is exempt from disclosure under the Public Records Law.
ORS 192.496(4) (student records required by state or federal law to be exempt from
disclosure). Although some records within the appendix to the management report may
constitute student records containing personally identifiable information, we concluded
above that these same records are confidential personnel records outside the scope of the
Public Records Law. Therefore, we assess only the text of the management report itself
to determine the extent to which it may constitute a student record that contains
personally identifiable information.
In preparing the management report, the Bond firm interviewed student-athletes.
The portions of the report that communicate the substance of those interviews are student
records. They convey the student-athletes' thoughts and feelings about the women's
basketball program and, in this way, are directly related to one or more students. Other
portions of the management report are also student records to the extent that they contain
information about student-athletes, either drawn from factual materials or from comments
made by other interviewees. The report does not identify individual student-athletes by
name or other personal identifiers. In three instances, however, we conclude that
information provided in the management report in relation to student-athletes would
make the identity of one or more of them easily traceable. This information is exempt
from disclosure under ORS 192.496( 4).
6 Beyond names, addresses, social security numbers or other personal identifiers such as student numbers,
"personally identifiable information" includes a list of personal characteristics or other information that
would make the srudent's identity "easily traceable." 34 CFR § 99.3.
1 See OAR 580-0 lJ-0005 for the board's delegation of rulemaking responsibility.
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June 1, 2001
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c. Internal Advisory Communications
The Public Records Law exempts from disclosure communications within a
public body "of an advisory nature to the extent that they cover other than purely factual
materials and are preliminary to any final agency determination of policy or action."
ORS 192.502(1). A public record is exempt from disclosure as an internal advisory
communication if:
(a) it is a communication within a public body or between public bodies;
(b) it is of an advisory nature preliminary to any final agency action;
( c) it covers other than purely factual materials; and
( d) in the particular instance, the public interest in encouraging frank
communication clearly outweighs the public interest in disclosure.
ATIOR..'iEY GENERAL'S PUBLIC RECORDS AND MEETINGS MANUAL (M<\.NuAL) (1999) at
45. While the management report may meet the first three criteria of this exemption, the
general content of the report and the events and circumstances surrounding its creation
have been so widely publicized that, in this particular instance, the public interest in
encouraging frank communication does not clearly outweigh the public interest in
disclosure. Therefore, we find that the internal advisory communication exemption does
not apply to the management report.8
2. Conclusion
For the reasons stated above, we conclude as follows. The portion of the
management report that discloses the contents of Ms. Runge's personnel evaluations is a
confidential personnel record under ORS 351.065(5) and, as such, is not subject to
disclosure under the Public Records Law. The information within the body of the
management report that would make one or more students personally identifiable is
exempt from disclosure as a student record under ORS 192.496(4). Other than the chart
setting out the expense budgets of women's sports and the parts of the 2000/01
8 The petition discusses two other exemptions under the Public Records Law - those relating to personnel
discipline (ORS 192.501( 12)) and personal privacy (ORS 192.502(2)). We conclude that neither
exemption applies to the portions of the management report and its appendix that are subject to tbe Public
Records Law and not exempt as a student record.
The exemption for records of a personnel discipline action covers only completed disciplinary actions
where a sanction was imposed. City of Portland v. Rice, 308 Or 118, 775 P2d 1371 ( 1989). Ms. Runge
resigned her position as head coach of tbe women's basketball team; she was not disciplined by the
university based on tbe management report. An employee's resignation does not constitute disciplinary
action. iY1ANUAL at 35. Therefore, we conclude that the exemption does not apply to the management
report.
For information to be exempt under the personal privacy exemption, it must be information of a
personal nature, the disclosure of which would constitute an unreasonable invasion of privacy. ORS
192.502(2). We have concluded that "[i]nformation concerning the manner in which any public officer or
employee carries out the duties of the office or employment generally will not come within this
exemption." MANUAL at 54. The management report's discussion of Ms. Runge is limited to her
performance as basketball coach. Therefore, we conclude that the exemption does not apply to the report.
Charles F. HiA
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comparative chart that do not display the scores from student-athlete evaluations, all of
the records comprising the appendix of the report are confidential personnel records
under ORS 351.065(5) and therefore not subject to the Public Records Law. With these
exceptions, we grant the petition and order disclosure of the management report.
The university has seven days from the date of this order in which to comply.
ORS 192.450(2).
AGS07842
Sincerely,
~091/f
PETER D. SHEPHERD
Deputy Attorney General