OAR 291-205-0120: Confidentiality of Facilitated Dialog Communications, Exceptions

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 423.605. (2) Except as provided in section (3) of this rule, Facilitated Dialogue Program communications are confidential and: (a) Shall not be disclosed to any other person; (b) Shall not be disclosed during discovery in any subsequent administrative, judicial or arbitration proceeding; (c) Shall not be admissible as evidence in any subsequent administrative, judicial or arbitration proceeding; and, (d) No program facilitator, advisory committee member, or program staff person shall be compelled to testify or produce evidence concerning a facilitated dialogue communication. (3) Exceptions to confidentiality and inadmissibility: (a) Any document that was prepared for purposes other than the Facilitated Dialogue Program and is a public record as defined in ORS 192.311 remains subject to disclosure to the extent provided by ORS 192.311 to 192.478 and may be introduced into evidence in a subsequent proceeding. (b) A facilitated dialogue is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. (c) The crime victim, survivor, inmate, and facilitators in a facilitated dialogue may agree in writing that all or part of a facilitated dialogue is not confidential and may be disclosed or introduced into evidence in a subsequent proceeding, unless the substance of the communication is confidential, privileged, or otherwise prohibited from disclosure under state or federal law. (d) A crime victim, survivor, inmate, or facilitator may disclose a facilitated dialogue to a person if the communication with that person is privileged under ORS Chapter 40 or other provision of law. (e) A crime victim, survivor, inmate, or program facilitator may disclose facilitated dialogue communications to a person for the purpose of obtaining advice or support for the facilitated dialogue if the victim, survivor, inmate, program facilitator, and the functional unit manager or designee agree. (f) Program staff may disclose facilitated dialogue to a Department of Corrections employee to the extent that the disclosure is necessary to conduct authorized activities of the department. A Department of Corrections employee receiving a facilitated dialogue communication may re-disclose the communication only to the extent necessary to conduct those authorized activities. (g) A written facilitated dialogue communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the victim, crime survivor, or inmate who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from a facilitator or another participant who does not agree to the disclosure. (h) Any facilitated dialogue communication relating to child abuse that is made to a person required to report child abuse under ORS 419B.010 is not confidential to the extent that the person is required to report the communication. (i) Any facilitated dialogue communication relating to elder abuse that is made to a person who is required to report elder abuse under ORS 124.050 to 124.095 is not confidential to the extent that the person is required to report the communication. (j) Any facilitated dialogue communication relating to abuse of adults with developmental disabilities who are currently receiving services from a community program or facility or were previously determined eligible for services or adults with mental illness who are receiving services from a community program or facility made to a person who is required to report abuse of those adults under ORS 430.765 is not confidential to the extent that the person is required to report the communication. (k) A facilitated dialogue communication made to a program facilitator, Victim Services Advisory Committee member, or program staff may be disclosed and may be admitted into evidence to the extent the Department of Corrections Director or the functional unit manager determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to institutional security or the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law. (l) The names of the participants in a facilitated dialogue, the facilitator names, and the case number associated with that case are not confidential, may be disclosed and may be admissible in a subsequent proceeding. (m) The Department of Corrections may use or disclose facilitated dialogue communications for reporting, research, training, or educational purposes subject to the following: (A) The department may compile and disclose general statistical information concerning facilitated dialogues if the information does not contain information that would likely reveal the identities of the dialogue participants. (B) Program staff may use or disclose facilitated dialogue communications or the disposition of matters referred for dialogue to another person for use in research, training, or educational purposes if the communications are used or disclosed in a manner that would not allow that information to be associated with a specific participant or reveal the identity of a participant. (n) A program facilitator may disclose a facilitated dialogue communication and such disclosures may be admissible in any subsequent administrative, judicial or arbitration proceeding only to the extent that the victim, survivor, inmate, and the functional unit manager or designee agree in writing to the disclosure. The facilitator may disclose the communication only to the extent authorized in the agreement. (4) The department intends this rule to apply retroactively to facilitated dialogue communications occurring on or after the effective date of 2017 Or Laws Ch 114.