OAR 123-400-0110: Records and Data Confidentiality

(1) Data or information regarding a Business or Project in Agreements, applications, semiannual reports, or related materials or communications provided to the Department or Governor will be public records subject to disclosure, except for 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 Business’s, its agent’ 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 Business shall clearly identify with words such as “CONFIDENTIAL – DO NOT DISCLOSE” or other words to the same effect in the body of the Agreement, application, report and other materials only the limited data or information exempt, including but not limited to before and after January 1, 2027, for trade secrets under ORS 646.461(4) and section 2(3), chapter 25, Oregon Laws 2023; (4) Notwithstanding section (3) of this rule, a Business’s failure to mark a submission or portion of a submission, shall not be conclusive evidence as to whether a submission was submitted in confidence or is subject to disclosure. (5) The Department shall determine whether a submission, data or any information is actually exempt from disclosure and will redact from disclosure only that data or information. (6) Businesses are advised to consult with legal counsel regarding disclosure issues. Businesses may wish to limit the amount of truly trade secret or other data or information provided only to what is necessary. (7) If the Department is subject to a disclosure order or receives from a third party any public records requests for the disclosure of submissions or portions of a submission, the Department shall notify the Business of the request or disclosure order. The Department will not disclose submissions or portions of a submission for 10 days after the notice. The Department will make reasonable efforts to provide the Business the proposed response.