OAR 350-012-0070. Public Records Exempt from Disclosure

(1) The following public records are exempt from disclosure under this division unless the public interest requires disclosure in the particular instance: (a) Records of the Gorge Commission pertaining to litigation to which the Gorge Commission is a party if the complaint has been filed, or if the compliant has not been filed, if the Gorge Commission shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this paragraph shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation; (b) Trade secrets. “Trade secrets,” as used in this subsection, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or service or to locate minerals or other substances, having commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it; (c) Information relating to the appraisal of real estate prior to its acquisition; (d) Investigatory information relating to any complaint filed relating to unlawful employment practices until such time as the complaint is resolved, or a final administrative determination is made; (e) A personnel discipline action, or materials or documents supporting that action; (f) Sensitive fish, wildlife, and plant data. Sensitive fish, wildlife, and plant data may be released to the following entities and their agents for fish, wildlife, plant, and land management purposes, or scientific research needs: Governments agencies, public utilities, and accredited colleges and universities. Sensitive fish, wildlife, and plant data may be released to tribal governments. Sensitive fish, wildlife, and plant data may also be released to the owner, lessee, or right-of-way or easement holder of private land to which the data pertains. The release of sensitive fish, wildlife, and plant data may be subject to a confidentiality agreement, except upon release of sensitive fish, wildlife, and plant data to the owner, lessee, or right-of-way or easement holder of private land who initially provided the data. Sensitive fish, wildlife, and plant data does not include data related to reports of predatory wildlife posted on the Washington Department of Fish of Wildlife’s internet web site. Sensitive fish, wildlife, and plant data must meet at least one of the following criteria as applied by the Gorge Commission: (A) The nesting sites or specific locations of endangered, threatened or sensitive species listed in the Management Plan or otherwise designated by the appropriate agencies in Oregon and Washington; (B) Radio frequencies used in or locational data generated by telemetry studies; (C) Other location data that could compromise the viability of a specific fish, wildlife or plant population and where one or more of the following criteria are met: (i) The species has a known commercial or black market value; (ii) There is a history of malicious take of that species and the species behavior or ecology renders it especially vulnerable; (iii) There is a known demand to visit, take, or disturb the species; or (iv) The species has an extremely limited distribution and concentration. (g) Records or information that would reveal or otherwise identify security measures, or weaknesses or potential weaknesses in security measures, taken or recommended to be taken to protect: (A) An individual; (B) Buildings or other property; or (C) Information processing, communication or telecommunication systems, including the information contained in the systems. (h) Lists of individuals requested for commercial purposes. (i) Any other record that is conditionally exempt from disclosure as specified in ORS 192.345. (2) The following public records are exempt from disclosure under this division: (a) Communications within the Gorge Commission or between the Gorge Commission and another 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. This exemption shall not apply unless the Gorge Commission shows that in the particular instance the public interest in encouraging frank communication between officials and employees of the Gorge Commission clearly outweighs the public interest in disclosure. (b) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy. (c) Information submitted to the Gorge Commission in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the Gorge Commission has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure. (d) Any public records or information the disclosure of which is prohibited by federal or state law or regulations, including location of archaeological sites or objects pursuant to 16 U.S.C. § 544d(a)(1)(A), traditional cultural practices, enjoyment of treaty reserved rights, the locations of traditional sites, structures, lands, and places of cultural and spiritual significance that a tribe holds sacred, and similar sensitive information. This exemption does not apply when the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe’s cultural or religious activities. (e) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon or Washington law. (f) Public records or information described in this section, furnished by the Gorge Commission to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable. (g) Information about review or approval of programs relating to the security of: (A) Generation, storage or conveyance of: (i) Electricity; (ii) Gas in liquefied or gaseous form; (iii) Hazardous substances as defined by Oregon or Washington state law; (iv) Petroleum products; (v) Sewage; or (vi) Water; (B) Telecommunications systems, including cellular, wireless or radio systems. (C) Data transmissions by whatever means provided. (h) Records of mediation communications that are privileged under the Uniform Mediation Act. (i) Information gathered for the purpose of preparing a small business impact statement or an analysis of significant rules as required by the states’ rulemaking requirements that can be identified to a particular business. (j) Records in violation of a user agreement or license that prohibits the Gorge Commission from disclosing such records. The Gorge Commission shall refer persons to the creator of the record if the Gorge Commission has obtained the records through agreement or license, or for which the Gorge Commission was charged a fee, other than a nominal fee for reimbursement of duplicating costs, for the record. (3) If any public record contains material that is not exempt under section (1) or (2) of this rule, as well as material that is exempt from disclosure, the Gorge Commission shall separate the exempt and nonexempt material and make the nonexempt material available for examination. (4) An individual may submit a written request to the Gorge Commission not to disclose a specified public record indicating the home address or personal telephone number of the individual. The Gorge Commission shall not disclose the specified public record if the individual demonstrates to the satisfaction of the Gorge Commission that the personal safety of the individual or the personal safety of a family member residing with the individual is in danger if the home address or personal telephone number remains available for public inspection. (a) A request described in section (4) shall remain effective until the Gorge Commission receives a written request for termination but no later than five years after the date that the Gorge Commission receives the request. (b) The Gorge Commission may disclose a home address or personal telephone number of an individual exempt from disclosure under section (4) upon court order, on request from any law enforcement agency or with the consent of the individual. (c) The Gorge Commission shall not be held liable for granting or denying an exemption from disclosure under this section or any other unauthorized release of a home address or personal telephone number granted an exemption from disclosure under this section. (5) Notwithstanding the exemptions in sections (1) and (2) of this rule, public records that are more than 25 years old shall be available for inspection, except for records the disclosure of which is prohibited by federal or state law or regulations.