OAR 123-099-0070: Records and Data Confidentiality

(1) Data or information regarding a Program applicant, proposed Project, Project Sponsor or Program Project in an application, application attachment, Agreement, semiannual report or related materials or communications provided to the Department shall be public records subject to disclosure, except for data or information that qualifies as a public records exemption under ORS 192.311 to 192.478 (Oregon Public Records Law). (2) Section (1) of this rule applies notwithstanding a nondisclosure agreement, but such an agreement may nevertheless spell out data or information anticipated to be exempt under the Oregon Public Records Law, including but not limited to trade secrets or confidential information under ORS 192.355(4), as may facilitate obligations under section (3) of this rule. (3) When providing items referenced in subsection (1) of this rule, it is the applicant or Project Sponsor’s, its agent’s or its representatives’ responsibility to mark data and information that legitimately and specifically qualify for an exemption from disclosure. To designate an item or portion of one as exempt from disclosure, the applicant or Project Sponsor shall: (a) Clearly identify in the body of the application, application attachment, Agreement, report and other materials only the limited data or information exempt; (b) Stipulate the Oregon Public Records Law exemption(s) believed to apply; and (c) Provide justification for how each identified portion meets that exemption’s criteria. (4) The Department shall determine whether data or any information is actually exempt from disclosure and shall redact from disclosure only that data or information. (5) Applicants and Project Sponsors are advised to consult with their legal counsel regarding disclosure issues. Applicants and Project Sponsors may wish to limit the amount of truly trade secret or other data or information provided only to what is necessary.