Are Oregon legislators' state-paid telephone billing records open to public records requests?

Plain-English summary

The Legislative Administration Committee (LAC) pays for legislators' state phones, both their Capitol office phones and phones at their residences. The Legislative Administrator asked the AG two questions: are the billing records public records, and does LAC's "Policy Governing Requests to Inspect Public Records" need formal adoption by the committee?

Chief Counsel Donald Arnold answered yes to both. ORS 171.113 declares that calls on state-paid phones are deemed state business, which puts the records squarely within the definition of "public record." The Public Records Law exemption for "personal" information (ORS 192.502(2)) does not categorically protect the billing records, both because they are largely just numbers and times (and so not deeply personal) and because legislators don't have a reasonable expectation of privacy in records that LAC staff routinely review for payment. The exemption can still apply on a case-by-case basis, for example, if the records implicate attorney-client privilege or particularly sensitive personal information. As for the LAC's public-records policy, it is a "rule" under ORS 173.770(3) because it implements an LAC duty and affects requesters externally, so it must be adopted by the LAC itself after notice and a public hearing.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does "state business" status do to the privacy claim?
A: It undercuts it significantly. If the statute deems all calls on a state phone to be state business, the records arise out of public conduct, not private life. The opinion still allowed the privacy exemption in narrow cases, but as a general matter the deeming statute pushes the analysis toward disclosure.

Q: What about residential phones paid for by the state?
A: ORS 171.113 applies to phones at the legislator's residence too, as long as they are state-provided phones. Calls on them are treated the same as calls from the Capitol office. Personal calls that the legislator reimbursed for would still be on the bill, but the opinion treated the records as a class.

Q: Could LAC refuse to release records during session?
A: Article IV, section 9 of the Oregon Constitution gives legislators a service-of-process immunity during session and the 15 days before. The AG interprets that as limiting formal compelled-disclosure proceedings (a petition to the AG or a circuit-court action) during that window. But the requester can still make the request, and LAC can still respond voluntarily through staff. The constitutional immunity is procedural, not a blanket nondisclosure rule.

Q: What about calls that reveal attorney-client privilege?
A: That's an example given in a footnote. If a particular billing record discloses an attorney-client communication or some other privileged or unusually sensitive matter, ORS 192.502(9) and possibly ORS 192.502(2) might apply to that specific record. The LAC must apply exemptions case by case.

Q: Why does LAC's policy have to be adopted by rule?
A: ORS 173.770(3) defines an LAC "rule" as any "directive, standard or statement of general application that implements or interprets the duties of the LAC." A public-records policy directly implements the LAC's duties under the Public Records Law and affects outside requesters. Internal management directives don't count, but this kind of public-facing policy does. Once it counts as a rule, ORS 173.770(2) requires reasonable notice and a public hearing.

Background and statutory framework

The Public Records Law (ORS 192.410 to 192.505) gives any person the right to inspect "any public record of a public body." The definitions are broad: "public body" includes the state and its agencies; "public record" includes any writing relating to the conduct of the public's business and used or retained by a public body. The LAC, as a statutory joint committee of the Legislative Assembly (ORS 173.710), is a public body for these purposes, except as Article IV, section 9 of the Oregon Constitution limits service of civil process during session.

The exemption analysis runs through ORS 192.502(2): information of a personal nature, disclosure of which would constitute an unreasonable invasion of privacy. Jordan v. MVD (1989) and Guard Publishing Co. v. Lane County School Dist. (1990) require case-by-case review and forbid blanket nondisclosure.

The rulemaking analysis runs through ORS 173.770. LAC rules aren't APA rules, so chapter 183 procedures don't apply. But the LAC's own statute requires reasonable notice and a public hearing before adopting any rule. The LAC consists of nine members (the Speaker, the Senate President, four House members, three Senate members), and adoption requires a majority from each house (ORS 173.730(5)).

Citations and references

Statutes and constitutional provisions:
- ORS 192.410 to 192.505, Public Records Law
- ORS 192.502(2), (9), exemptions
- ORS 171.113, state phones treated as state business
- ORS 173.710, 173.730, 173.770, LAC structure and rulemaking
- Article IV, section 9, Oregon Constitution, legislative immunity during session

Cases:
- Jordan v. MVD, 308 Or 433, 781 P2d 1203 (1989), personal-information test
- Guard Publishing Co. v. Lane County School Dist., 310 Or 32, 792 P2d 854 (1990), case-by-case rule
- Smith v. Maryland, 442 US 736 (1979), no Fourth Amendment privacy in dialed numbers
- Turner v. Reed, 22 Or App 177, 538 P2d 373 (1975), severing exempt from nonexempt content

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1998/06/op1998-3.pdf

Original opinion text

June 4, 1998

Dave Henderson
Legislative Administrator
Legislative Administration Committee
140-A State Capitol
Salem, Oregon 97310
Re: Opinion Request OP-1998-3
Dear Mr. Henderson:
You have asked for advice regarding the handling of requests for copies of telephone billing records for
members of the Oregon Legislative Assembly. We set forth your questions and our brief answers below,
followed by an analysis.
1. Are legislator's telephone billing records subject to disclosure under Oregon's Public
Records Law?
Yes.
2. Does the "Policy Governing Requests to Inspect Public Records" require formal adoption
by the Legislative Administration Committee (LAC)?
Yes. The LAC must give reasonable notice of its intent to adopt a policy and conduct a hearing open to
the public before adopting such policy by a majority vote of committee members.
Discussion
1. Legislative Telephone Records
The LAC receives, processes and pays the telephone bills for the Legislative Assembly. ORS 171.113
provides:
It is the policy of the Legislative Assembly that all use of state provided phones by members
or by legislative staff at the members' direction, including phones assigned either at the
member's residence or at the Capitol, shall be considered to be used on state business for
purposes of the Legislative Assembly.
The billing records received by the LAC display the date, time, telephone number called,
city, state, and length of each call made from legislators' offices, sorted by telephone of
origination.(1) You ask whether such telephone billing records are subject to disclosure
under Oregon's Public Records Law.
Under the Public Records Law, ORS 192.410 to 192.505, every person has a right to inspect "any public
record of a public body" in Oregon, subject to certain exemptions and limitations. ORS 192.420. For
purposes of this law, ORS 192.410(3) defines the term "public body" as including:
every state officer, agency, department, division, bureau, board and commission; every

county and city governing body, school district, special district, municipal corporation, and
any board, department, commission, council, or agency thereof; and any other public agency
of this state.
The term "state agency" is defined by ORS 192.410(5) to mean:
any state officer, department, board, commission or court created by the Constitution or
statutes of this state but does not include the Legislative Assembly or its members,
committees, officers or employees insofar as they are exempt under section 9, Article IV of
the Oregon Constitution.
Because the LAC is created by statute as a joint committee of the Legislative Assembly, ORS 173.710, it
is a public body subject to the Public Records Law except insofar as the LAC is exempt under Article IV,
section 9, of the Oregon Constitution. Under that constitutional provision, "Senators and Representatives
* * * shall not be subject to any civil process during the session of the Legislative Assembly, nor during
the fifteen days next before the commencement thereof." Or Const Art IV, § 9. In the context of the
Public Records Law, we interpret the immunity from service of civil process to mean that, during the
relevant time period, a legislator cannot be subject to a petition to the Attorney General requiring
response as to whether he or she claims the right to withhold disclosure of public records or to service of
a summons and complaint in a proceeding for injunctive or declaratory relief in circuit court to obtain
disclosure of public records. See ORS 192.480. This limitation does not mean that a person may not
make a public records request of the LAC during this period. Nor does it mean that the LAC may not
respond to such a request during this period, either through staff without involvement of any individual
legislator or with the voluntary participation of a legislator.
ORS 192.410(4) defines a "public record" as including:
any writing containing information relating to the conduct of the public's business, including
but not limited to court records, mortgages, and deed records, prepared, owned, used or
retained by a public body regardless of physical form or characteristics.
The telephone billing records received, processed and paid by the LAC are writings relating
to the conduct of the public business, and they are used and retained by the LAC. Thus we
conclude that these billing records are within the definition of "public record."
There is no exemption from the disclosure mandate of the Public Records Law specifically for telephone
billing records of members of the Legislative Assembly. The only exemption that might cover such
records generally is ORS 192.502(2),(2) which exempts from disclosure:
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 instances.
This exemption requires a two-step analysis: first, is the information "personal" and, second, would its
disclosure constitute an unreasonably invasion of privacy? Information is "personal" if it relates to "a
particular person," such as a person's home address, age, weight or residential telephone number. See
Jordan v. MVD, 308 Or 433, 441, 781 P2d 1203 (1989). The billing record information showing
telephone numbers called, the city, state, date, time and length of the call is not "personal" to a legislator
in the usual sense. Such information about a particular legislator's telephone calls is specific to that one
individual, however, and it may reveal something about the legislator's habits or acquaintances, which is
personal. Thus, it is possible, though we believe unlikely, that a court would conclude the billing records
are personal information as to the individual legislators who made the telephone calls. To the extent a
legislator has called someone's residential telephone number, that number would be personal information
of the individual called.
Accordingly, the billing records could be subject to the exemption if their public disclosure would
constitute an "unreasonable invasion of privacy." This is an objective test, requiring the determination on
a case-by-case basis whether "an ordinary reasonable person would deem [it] highly offensive." Id. at
442-43. The mere fact that "the information would not be shared with strangers is not enough to avoid
disclosure." Id. at 441. See also id. at 444-45 (Gillette, J., concurring) ("A general desire 'to be let alone'
* * * will not be sufficient.").
In construing the exemption in ORS 192.502(2), the courts have noted that it is "an exception to the
general rule favoring disclosure" and should be narrowly construed. Guard Publishing Co. v. Lane
County School Dist., 310 Or 32, 37, 792 P2d 854 (1990) (citing Jordan 308 Or at 439).
We do not believe that disclosure of legislators' telephone billing records would constitute an
unreasonable invasion of privacy. The billing records list only the date, time, telephone number, city,
state, and length of the call. Although the records might disclose something about the personal habits or
acquaintances of legislators, the state-provided telephones are used "on state business for purposes of the
Legislative Assembly." ORS 171.113.
Moreover, individual legislators would not reasonably have an expectation of "privacy" in the billing
records, which are received by the LAC and, we assume, reviewed by its staff before being paid. Cf.
Smith v. Maryland, 442 US 736, 742-43, 99 S Ct 2577, 61 L Ed2d 220 (1979) (in context of Fourth
Amendment guarantee against unreasonable "search," stating that there can be no rational expectation of
privacy in the telephone numbers dialed). Accordingly, we cannot say that disclosure of telephone billing
records generally would be an unreasonable invasion of the legislators' privacy.
Nor do we believe that disclosure of telephone numbers would generally be an unreasonable invasion of
privacy of individuals whose residential telephone numbers were called by a legislator from a
state-provided telephone. Although the records do not contain the name of the party called, someone
certainly might be able to find out that information. Nevertheless, most persons do not find it highly
offensive to disclose their telephone numbers, as demonstrated by the extensive listings of residential
telephone numbers in the telephone directory.
In any event, the determination of whether disclosure of personal information would constitute an
unreasonable invasion must be made on a case-by-case basis. A blanket policy of nondisclosure violates
the Public Records Law. Guard Publishing, 310 Or at 39-40. Thus, we have previously concluded that
lottery prize winners' "addresses and telephone numbers, as a class, cannot be exempt from disclosure
under [ORS 192.502(2)] because they do not meet the criteria for that exemption." Letter of Advice
dated September 23, 1985, to Robert W. Smith, Director, Oregon State Lottery (OP-5860). See also
Public Records Order, September 9, 1996, Coreson/Burns (requiring Oregon Department of Fish and
Wildlife to make available telephone numbers of hunting license holders).
In sum, we conclude that legislators' telephone billing records are subject to disclosure under Oregon's

Public Records Law unless a determination is made that in a particular instance disclosure would
constitute an unreasonable invasion of privacy.(3) Even in that situation, disclosure would be required if
"the public interest by clear and convincing evidence requires disclosure in the particular instance." ORS
192.502(2).
2. Policy Adoption by the Legislative Administration Committee
You also ask whether the LAC's "Policy Governing Requests to Inspect Public Records" requires formal
adoption. This policy was adopted by the LAC Management Team on May 14, 1996, but the LAC itself
has not taken formal action on the policy.
ORS 173.770 provides:
(1) The Legislative Administration Committee may adopt rules to carry out its duties under statute or legislative rules or directives, including setting and collecting fees for facilities and services and obtaining copyrights and patents on copyrightable or patentable materials developed, published or produced by committee staff.
(2) Rules adopted under authority of this section are not rules within the meaning of ORS 183.310 to 183.550 and are not subject to review under ORS 183.710 to 183.725. However, the Legislative Administration Committee shall give reasonable notice of its intent to adopt rules and conduct a hearing open to the public before adopting any rule.
(3) As used in this section, "rule" means any directive, standard or statement of general application that implements or interprets the duties of the Legislative Administration Committee and includes amendment or repeal of a prior rule but does not include internal management directives or statements relating to committee business between committee members or between committee members and committee staff or between committee staff.
(Emphasis added.) ORS 173.770 authorizes the LAC to adopt rules to carry out its duties under statute.
Any standard or statement of general application that implements or interprets the duties of the LAC,
other than internal management directives or statements between LAC members or staff relating to
committee business, are considered rules. Such rules must be adopted by the LAC after notice and a
public hearing.
The "Policy Governing Requests to Inspect Public Records" specifies, among other things, the form and
content of requests for public records of the LAC and the fees that may be charged by the LAC for
making public records available. This policy is a statement of general application implementing the
duties of the LAC under the Public Records Law. It is not merely an internal management directive, but
directly affects the persons making public records requests. Such a policy is a "rule" of the LAC as
defined by ORS 173.770(3). Accordingly, ORS 173.770(2) requires the policy to be adopted by the LAC
after reasonable notice of its intent to do so and a hearing open to the public(4) Adoption by the LAC
requires "the affirmative vote of the majority of members from each house who serve as members of the
committee."(5) ORS 173.730(5).
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division

1. We understand that the majority of calls made on the state-provided phones are state business related, but that legislators and their aides may also make personal calls for which they reimburse the Legislative Assembly.

2. We understand your question to relate to telephone billing records generally and not to situations that might be unique to individual legislators. For example, it is conceivable that disclosure of an individual legislator's telephone billing records could disclose the existence of an attorney-client privileged communication, which would be exempt from disclosure under ORS 192.502(9). Consideration of such individual situations is beyond the scope of this opinion.

3. If the LAC determined that in a particular instance disclosure of information in a telephone billing record would constitute an unreasonable invasion of privacy, the LAC would have a duty to separate exempt and nonexempt information within the billing record and to disclose the nonexempt information. ORS 192.505. See Turner v. Reed, 22 Or App 177, 186 n 8, 538 P2d 373 (1975).

4. The LAC is not required to comply with the rulemaking requirements of ORS 183.325 to 183.355. ORS 173.770(3).

5. The LAC consists of the Speaker of the House of Representatives, the President of the Senate, four members of the House appointed by the Speaker, and three members of the Senate appointed by the President. ORS 173.730(1).