ELLEN F. ROSENBLUM
MARY H. WILLIAMS
Attorney General
Deputy Attorney General
DEPARTMENT OF JUSTICE
Minutes for HB 4045 Rulemaking Advisory Committee Meeting
Friday, October 5, 2012, 9 am to 11 am
The following rulemaking advisory committee members attended the meeting:
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Kevin Starrett, Oregon Firearms Federation
Elmer Dickens, Washington County, Assistant County Counsel
Darrell Fuller, Oregon State Sheriffs’ Association
Christie Meister, Lincoln County, Chief Civil Deputy
Representative Kim Thatcher (by phone)
Dawn Phillips, Policy & Public Relations Director, Representative Kim Thatcher
Daniel Staton, Multnomah County Sheriff
Tom Gallagher, on behalf of the Oregon Newspaper Publishers Association
Rod Harder, National Rifle Association
Bruce Armstrong, Marion County, County Counsel
Senator Floyd Prozanski
Katie Pool, Ceasefire Oregon
R. Paul Frasier, Coos County District Attorney (by phone)
The following issues were discussed:
Requiring public records requests to be made in writing
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Kevin Starrett and others recommended that the rules require all requests for records
pursuant to HB 4045 to be made in writing, as opposed to requiring only requests
pursuant to the “compelling public interest” exemption to be made in writing.
Others, including Katie Pool, recommended against that approach, and recommended that
the rules require written requests only when the law requires written requests.
Tom Gallagher reported that the Oregon Newspaper Publishers Association had no
objection to requiring all requests to be made in writing, but did not have a strong
opinion.
The “compelling public interest” exception to releasing records or information concerning
concealed handgun licenses
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This topic took up the majority of the committee’s discussion during the meeting.
Some members, including Tom Gallagher, recommended against defining the term
“compelling public interest,” opining that it was not readily capable of definition. Others,
including Kevin Starrett, disagreed, and believed it would be able to define.
Other members, such as Elmer Dickens, were concerned that defining “compelling public
interest” in this rule could unintentionally, and negatively, affect the working of the entire
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Public Records Law by necessarily defining “public interest” as part of the term
“compelling public interest.”
Dawn Phillips pointed out that HB 4045 directs the Attorney General to adopt rules that
identify “materials” that a requestor must submit to support a request for public records
pursuant to the “compelling public interest” exception, which she viewed as legislative
intent in support of the proposition that HB 4045 may direct the Attorney General to
define “compelling public interest.”
Aside from defining the term, committee members including Darrell Fuller questioned
whether it was necessary to provide examples of a “compelling public interest,” and if
they were included, advised DOJ to be explicit that the examples were for illustrative
purposes only, and were not binding upon public bodies.
Sheriff Staton pointed out that the statute which authorized concealed handgun licenses
sets out eligibility criteria, that failure of an individual with a license to meet the
eligibility criteria could be a “compelling public interest” requiring disclosure of public
records, and that perhaps the DOJ rules could refer back to the authorizing statute instead
of providing piecemeal examples of a “compelling public interest.”
Others, such as Kevin Starrett, reiterated that they believed that examples of “compelling
public interest” would serve as helpful guidance to public bodies interpreting HB 4045.
Tom Gallagher pointed out that the newspapers were primarily interested in concealed
handgun license records to determine whether public bodies were properly issuing
licenses, rather than to check on individual license holders. Katie Pool reiterated that
interest from a non-newspaper perspective.
Sheriff Staton explained that Multnomah County had recently undertaken an audit to
confirm compliance with concealed handgun license laws, and suggested that perhaps HB
4045 could be amended to require independent audits to satisfy the interest in oversight
of concealed handgun licenses.
Senator Prozanski noted that HB 4045 specifically doesn’t define “compelling public
interest,” and that he intended for public bodies to apply the “compelling public interest”
exception just as public bodies have long applied other Public Records Law exemptions
from disclosure. In those cases the exemptions are not defined by DOJ, but rather the
public body applies the exemptions, and their decisions may be appealed to a District
Attorney or DOJ, and eventually to the courts. In the Senator’s view, the draft proposed
rules were sufficient in simply requiring requestors to identify the basis of their requests,
and to supply supporting documentation.
Whether to direct public records request to the records “custodian”
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Tom Gallagher noted that the draft proposed rules would requests based on the
“compelling public interest” exception to be made to the records “custodian,” but noted
that while “custodian” is a legal term of art, in practice many requests are not addressed
to the custodian, because many public bodies in his view have not designated a custodian.
He recommended requiring such requests to be made to a records custodian, or to any
other appropriate person in the public body.
Christie Meister took a different view, and explained that in her county, a request
addressed to the custodian was an important flag that the request should be handled with
significant care, and that the requirement to address requests to a records custodian was
positive.
Whether to define “bona fide representative of the news media”
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Tom Gallagher noted that just like “compelling public interest,” the term “bona fide
representative of the news media” is not defined by HB 4045. However, he and others
indicated that if the proposed rules attempted to define the term, the definition could have
impacts in the Public Records Law that far exceed the scope of HB 4045.
Whether there is liability for public bodies or officials that wrongfully disclose public records
regarding concealed handgun licenses
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Dawn Phillips asked whether a public body or public official might be liable for
disclosing public records regarding concealed handgun licenses.
A number of committee members opined that the public body or official might be subject
to civil liability, but that HB 4045 did not expressly provide penalties for wrongful
disclosure.
Elmer Dickens mentioned that the public body or official theoretically might be subject
to a tort claim, such as invasion of privacy, but that there would be defenses against such
claims, and the defenses could very well insulate the public body or official from any
potential liability.
Fiscal impacts
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As required by ORS 183.333(3), DOJ sought the advisory committee’s recommendations
on:
(A) Whether the draft rule will have a fiscal impact;
(B) What the extent of that impact will be; and
(C) Whether the rule will have a significant adverse impact on small businesses.
(D) If the committee indicates that the rule will have a significant adverse impact on small
businesses, the committee’s recommendations on compliance with ORS 183.540.
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Many members of the committee indicated that they did not believe the draft rule would
have a fiscal impact. No committee member indicated that he or she believed that the
draft rule would have a fiscal impact. As a result, the committee did not consider
questions (B) through (D).
The meeting adjourned at approximately 11 am.