Date of Adoption: April 13, 2004.

     Purpose: The Columbia River Gorge Compact Art. I, § a and the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544c(b) require the gorge commission to maintain regulations relating to public records disclosure that are consistent with the more restrictive statutory provisions of either state. In 2003, Oregon adopted changes to its public records disclosure rules. These amendments make those changes effective to the gorge commission.

     Citation of Existing Rules Affected by this Order: Amending 350-12-008.

     Statutory Authority for Adoption: RCW 43.97.015.

     Other Authority: ORS 196.150; 16 U.S.C. § 544c(b).

      Adopted under notice filed as WSR 04-05-049 on February 13, 2004.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: June 1, 2004.

April 27, 2004

Nancy A. Andring

Rules Coordinator

350-12-008 Public records exempt from disclosure.

     (1) The following public records are exempt from disclosure under 350-12-001 to 350-12-008 unless the public interest requires disclosure in the particular instance:

     (a) Records of the commission pertaining to litigation to which the commission is a party if the complaint has been filed, or if the compliant has not been filed, if the 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 section, 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) Investigatory information compiled for criminal law purposes, except that the record of an arrest or the report of a crime shall not be confidential unless and only so long as there is a clear need in a particular case to delay disclosure in the course of a specific investigation. Nothing in this paragraph shall limit any right constitutionally guaranteed, or granted by statue, to disclosure or discovery in criminal cases. For purpose of this paragraph, the record of an arrest or the report of a crime includes, but is not limited to:

     (A) The arrested person's name, age, residence, employment, marital status and similar biographical information;

     (B) The offense with which the arrested person is charged;

     (C) The conditions of release;

     (D) The identity of and biographical information concerning both complaining party and victim;

     (E) The identify of the investigation and arresting agency and the length of the investigation;

     (F) The circumstances of arrest, including time, place, resistance in apprehending fugitives from justice;

     (G) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice.

     (d) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the examination is given and if the examination is to be used again;

     (e) Information relating to the appraisal of real estate prior to its acquisition;

     (f) The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections;

     (g) Investigatory information relating to any complaint filed relating to unlawful employment practices until such time as the complain is resolved, or a final administrative determination is made;

     (h) Investigatory information relating to any complaint filed relating to unfair labor practices;

     (i) Information concerning the location of archaeological sites or objects, except if 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. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist activity or attraction; and

     (j) A personnel discipline action, or materials or documents supporting that action.

     (k) Sensitive fish, wildlife, and plant data obtained by or created by the Gorge Commission. However, sensitive fish, wildlife and plant data may be released to government agencies concerned with the management of fish and wildlife resources. Sensitive fish, wildlife, and plant data includes:

     (1) 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;

     (2) Radio frequencies used in or locational data generated by telemetry studies;

     (3) 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:

     (A) The species has a known commercial or black market value

     (B) There is a history of malicious take of that species; or

     (C) There is a known demand to visit, take, or disturb, and the species behavior or ecology renders it especially vulnerable or the species has an extremely limited distribution and concentration.

     (l) 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:

     (1) An individual;

     (2) Buildings or other property; or

     (3) Information processing, communication or telecommunication systems, including the information contained in the systems.

     (2) The following public records are exempt from disclosure under 350-12-001 to 350-12-008:

     (a) Communications within a public body or between public bodies 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 commission shows that in the particular instance the public interest in encouraging frank communication between officials and employees of the 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 commission in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the 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;

     (e) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged;

     (f) Public records or information described in this section, furnished by the public body originally compiling, preparing or receiving them 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:

     (1) Generation, storage or conveyance of:

     (A) Electricity;

     (B) Gas in liquefied or gaseous form;

     (C) Hazardous substances as defined by Oregon or Washington state law;

     (D) Petroleum products;

     (E) Sewage; or

     (F) Water;

     (2) Telecommunications systems, including cellular, wireless or radio systems.

     (3) Data transmissions by whatever means provided.

     (3) If any public record contains material which is not exempt under subsection (1) or (2) of this section, as well as material which is exempt from disclosure, the 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 a public body not to disclose a specified public record indicating the home address or personal telephone number of the individual. A public body shall not disclose the specified public record 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 if the home address or personal telephone number remains available for public inspection.

     (a) A request described in subsection (1) of this section shall remain effective until the public body receives a written request for termination but no later than five years after the date that a public body receives the request.

     (b) A public body may disclose a home address or personal telephone number of an individual exempt from disclosure under subsection (1) of this section upon court order, on request from any law enforcement agency or with the consent of the individual.

     (c) A public body 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 350-12-008 (1) and (2), public records that are more than 25 years old shall be available for inspection

     (6) Notwithstanding 350-12-001 through 350-12-008, the Commission shall not disclose records in violation of a user agreement or license that prohibits the Commission from disclosing such records. The Commission shall refer persons to the creator of the record if the Commission has obtained the records through agreement or license, or for which the Commission was charged a fee, other than a nominal fee for reimbursement of duplicating costs, for the record.

     (7) Disclosure of information in violation of Rule 350-12-006(2) is grounds for assessment of a civil penalty pursuant to Rule 350-30 et seq.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Columbia River Gorge Commission and appear in the Register pursuant to the requirements of RCW 34.08.040.

© Washington State Code Reviser's Office