recognizing “the strong and enduring policy that public records and governmental activities be open to the public”
How later courts described this case
- recognizing “the strong and enduring policy that public records and governmental activities be open to the public”
- noting, in effect, that court properly should consider derivative consequences of disclosure of information
- party seeking disclosure failed to meet burden to overcome entitlement to exemption where information was of a personal nature and disclosure would constitute unreasonable invasion of privacy
- defendant did not deny or object to the PSI information
Written by the judges who cited it.
The opinion
GILLETTE, J.,
concurring.
I join in the majority opinion. I write this brief separate opinion to highlight a point perhaps not fully explained in the lead opinion.
The only real debate in this case centers on the meaning of this phrase in ORS 192.502(2): “public disclosure [of information of a personal nature, in this case Citizen’s address] would constitute an unreasonable invasion of privacy.” The dissent reads this language to apply only to those *444 cases (if any can be imagined) in which a particular agency’s act of disclosure itself, without more, “constitutes” the invasion of privacy. This is a permissible reading of the statutory language, but a very grudging and ungenerous one.
The opinion of the court, somewhat sub silentio, takes a broader view, which I wish to specifically identify and endorse: a disclosure “constitutes” an unreasonable invasion of privacy if the agency’s act of releasing the information, or the acts of those to whom the information is released, are reasonably anticipated by the agency to lead to such an invasion of privacy. Thus, in this case, the agency could reasonably anticipate that, should it release the sought-after information to Jordan, that person would immediately and unreasonably invade the privacy of Citizen.
There are two limitations inherent in the rule the majority announces that keep the rule a minor, legislatively-authorized modification of the general policy of public disclosure. The first arises out of the statutory scheme itself: Although the agency is permitted by the statute to refuse to disclose information of this kind under these circumstances, it is not required to keep such information confidential. The language of ORS 192.502(2) is permissive, not mandatory. If the administrative inconvenience involved in setting up agency records so the agency can honor requests for protection of privacy like that in this case is too great, the agency can simply decline to honor the request. Thus, and contrary to anything implied by the dissent, the extent to which the rule we announce today will create administrative inconvenience will be entirely up to the agency. We impose no requirement on any agency by our decision.
The second limitation involves the kind of information that might justify an agency decision to keep certain information confidential. As I believe this case makes clear, that information is normally going to need to be very specific in order to justify exemption. A general desire “to be let alone” — a desire with which all of us can sympathize from time to time — will not be sufficient. The exact extent of information that may satisfy an agency will, of course, be for the agency to decide. But no agency will wish to be involved in the effort and expense of challenges to its exemption decisions like the challenge in this case. Agencies therefore can be expected to be *445 exacting in their insistence on clear justification for any requested exemption, if the agency chooses to grant such exemptions at all.
I concur.