Or. Op. Atty. Gen. OP-6126, 1987 WL 278343 (Or.A.G.) Office of the Attorney General State of Oregon Opinion Request OP6126 June 1, 1987 Jim Kenney Supervisor Urban-Renewal Section Department of Revenue 256 Revenue Building Salem, OR 97310 Dear Mr. Kenney: You ask us three related public records questions arising out of an inquiry you received from the Lane County Department of Assessment and Taxation. That department has two computer programs that generate appraisal information based upon computer-stored data. The ATCOMP program uses the account number of the property to be compared (termed ‘subject’ by appraisers) to read the characteristics appraisal file and the sales file and to generate six comparable sales, which then are adjusted to the subject property. The program then will adjust the comparables' sale price to give an adjusted sale price. In other words, the program produces an automated appraisal report using the market approach. The ATSTAK program uses the account number of the subject property and the account numbers of the three ‘best’ comparables from the ATCOMP run (usually as selected by a county appraiser), reads the appraisal characteristic files, and then adjusts the most recent sale prices of the comparable properties to the subject property, providing indicated values for the subject property. You first ask whether the two programs themselves are public records. We answer yes. Second, you ask whether printouts from these two programs produced for Lane County Department of Assessment and Taxation purposes are public records. Again, we answer yes. Finally, you ask whether the Public Records Law requires the county, upon request, to provide automated appraisals that could be generated by either of these two programs, even if the county never has applied the programs to the subject property. We conclude that, until the county actually applies the programs to a particular subject property, the © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 information that could be produced by the programs is not a public record. Therefore, the Public Records Law does not require the county to produce that information upon request. Discussion Every person has a right to inspect any nonexempt public record.ORS 192.420. A public record is ‘any writing containing information relating to the conduct of the public's business, prepared, owned, used or retained by a public body regardless of physical form or characteristics.’ORS 192.410(4) (emphasis added).ORS 192.410(5) defines ‘writing’ as ‘handwriting, typewriting, printing, photostating, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combinations thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, or other documents.’(Emphasis added.) [FN1] These definitions guide our legal analysis here. 1. Computer Program as a Public Record[FN2] The Public Records Law does not define or expressly refer to computer programs. We use that term here in its ordinary sense: that is, a procedure, coded for a computer, for the performance of an operation or the solution of a problem. [FN3] *2 As we understand the ATCOMP program, it instructs the computer to use specified criteria to review the county's characteristics appraisal file and sales file and select six properties comparable to the subject property. The program then adjusts the sale price of the comparable properties to the subject property, for each characteristic using a specific formula contained in the program. The ATSTAK program uses three pre-selected comparable sales (usually the three ‘best’ comparables from the ATCOMP run as selected by a county appraiser) and, as does the ATCOMP program, adjusts the sale prices of the comparable properties to the subject property by applying programmed formulas. Those programs plainly are ‘public records' within the meaning of ORS 192.410(4). First, they are ‘writings,’ ORS 192.410(5), in that they contain information recorded on a tape. Second, that information relates to the conduct of the public business. The programs contain the instructions for selecting comparable properties, and the formulas for adjusting the prices of those comparable properties to the subject property. The county uses those instructions and formulas in appraising property for ad valorem tax purposes. Third, the programs are ‘prepared, owned, used [and] retained’ by the county, thus satisfying the third aspect of the definition of ‘public record.’ The Public Records Law does not either outright or conditionally exempt computer records from disclosure.SeeORS 192.496, 192.500. Nor does ORS 192.500(2)(h) exempt the programs at issue here by reference. [FN4] Nor does any other law, adopted after enactment of the Public Records Law in 1973, exempt computer program records from disclosure to the public.See44 Op Atty Gen 239, 242 (1984). Therefore, because those programs are nonexempt public records, the county must disclose them upon request.ORS 192.420. [FN5] This conclusion is similar to our answer in 39 Op Atty Gen 721 (1979). There, we stated that the Public Records Law requires a county to make available upon request a duplicate copy of a magnetic tape containing ownership records maintained by county assessors. We noted, however, that the public's right to inspect and examine public records ‘may be tempered by reasonable limitations necessary to protect the records and to avoid disruption in the office,’ so long as the public body draws those limitations reasonably to ‘grant the greatest access possible consistent with those © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 goals.’39 Op Atty Gen at 722. That qualification applies equally here. 2. Copies or Reproductions of ATSTAK and ATCOMP Printouts Previously Prepared ATCOMP and ATSTAK printouts contain written information that the county uses in appraising real property for ad valorem tax purposes. For reasons similar to those stated above, we conclude that the ATSTAK and ATCOMP printouts are public records under ORS 192.410(4). The county suggests no exemptions or conditional exemptions that might apply, and we are aware of none. Accordingly, because the printouts are nonexempt public records the county must make them available for inspection upon request. *3 The county argues that it should not be required to disclose those printouts, because the reports could be incorrectly perceived or applied, or might give the appearance at hearings that the county is providing comparables to a petitioner in support of a requested value. Those factors, however, do not affect the county's duty under the Public Records Law to make those records available for inspection.See Letter of Advice dated February 26, 1987, to Wendy L. Greenwald, Board Agent, Employment Relations Board (OP–6087) (potential for misuse of information does not affect public body's duty to disclose nonexempt public records); cf. Smith v. School Dist. No. 45, 63 Or App 685, 692, 666 P2d 1345,rev den295 Or 773 (1983) (statutory right of access to public records does not depend upon requestor's need or motivation); Morrison v. School District No. 48, 53 Or App 148, 152–53, 631 P2d 784,rev den291 Or 893 (1981) (construction of statutory exemption from disclosure does not depend upon identity of requestor or circumstances existing at time of request). 3. ATCOMP and ATSTAK Market Data Analyses Available Through Application of the Program But Not Previously Requested as to a Particular Property This is the most difficult of the three questions presented, and is of first impression for the Department of Justice. We begin with the premise that the information stored in the computer system and manipulated by the ATCOMP and ATSTAK programs—that is, the data in the characteristics appraisal file and the sales file—is a ‘public record’ within the meaning of ORS 192.410(4). Those data storage files are ‘writings' under ORS 192.410(5) because the data are recorded on tape. The information plainly is ‘prepared, owned, used or retained by a public body,’ORS 192.410(4), and just as plainly relates to the conduct of the public's business.Id. Nor does any provision in the Public Records Law exempt those raw data from disclosure. Therefore, those unmanipulated data would be subject to inspection upon request. That conclusion, however, does not settle the issue before us: Whether the county must, upon request, apply the ATCOMP and ATSTAK programs to a particular subject property, and thus present the requestor with, inter alia, a computer-selected and manually-selected portion of those nonexempt public records. For two reasons, we conclude that, before the ATCOMP program is run on a particular subject property, the results that the program would produce are not a public record. First, the definition of ‘public record’ refers only to existing writings. Before the ATCOMP program is run on a specific property, the configuration of data that the program will © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 produce does not exist. Rather, although some of the results produced by the program reveal preexisting public records, the application of the program selects only a small part of those public records and configures them in a potentially meaningful fashion. In effect, application of the ATCOMP program creates a new public record. The Public Records Law does not impose upon a public body the duty to create a public record, even where the public body has the means to do so.44 Op Atty Gen 239, 277 (1984). *4 Second, the ATCOMP program produces information that, before application of the program to a subject property, does not exist as a public record. That is, the program adjusts the sales prices of six comparable properties to the subject property, and produces a printout showing those adjustments. Before the computer run, those adjustments do not exist anywhere in the county's public records. Because those adjustments do not exist before the ATCOMP run, they are not public records. Accordingly, the Public Records Law does not require the county to produce them upon request. Id.[FN6] Those reasons lead us to the same conclusion as to the ATSTAK program. An additional reason also compels that conclusion. Where a requestor does not supply three properties for comparison, the county cannot apply the ATSTAK program to a subject property until a county appraiser selects three comparable properties for the program to use. Thus, a request to run ATSTAK necessarily is a request for a county appraiser to use his or her professional judgment to preselect data for the computer run. The Public Records Law does not require a county to provide to a requestor the three comparable properties a county appraiser would choose for comparison, if that information does not already exist as a public record. Therefore, a requestor does not have even the right to receive the underlying information necessary for an ATSTAK run, much less the right to compel the county to perform the computer run. We reach this conclusion by applying general Public Records Law principles, while recognizing that the drafters of that law likely did not specifically consider issues such as that raised by your third question. We encourage the Legislative Assembly to address the important public records policy issues implicated by the widespread computerization of public records. The Department of Justice does not act as legal counsel to Lane County, and that county is entitled to seek and rely upon advice from its own counsel. The legal opinions stated in this letter of advice are given solely for your use and benefit. Very truly yours, Donald C. Arnold Chief Counsel General Counsel Division [FN1] These definitions have remained unchanged since 1973 when first enacted as part of a comprehensive revision of the Public Records Law. [FN2] This office has recommended statutory limitations on the duty of a public body to turn over computer programs as public records. The Legislative Assembly has not yet adopted our proposed amendments to ORS chapter 192 to achieve this purpose. The most recent attempt was Senate Bill 219 (1987), which proposed a conditional exemption © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 for computer programs under ORS 192.500. [FN3]ORS 164.377(1)(d), which defines ‘computer program’ for purposes of the statute creating the crime of ‘computer crime,’ uses a similar definition. That is the only express statutory definition of ‘computer program’ in Oregon. [FN4]ORS 192.500(2)(h), by reference to ORS 56.100, exempts from disclosure the Corporations Division's ‘[e]lectronic data processing programs.’ ORS 56.100(1). Similarly, ORS 79.4080(3) expressly provides that the Public Records Law does not authorize the purchase by any person of ‘electronic data processing programs or tapes used to record, process and store statements filed with the Secretary of State’ under ORS chapter 79. No such exemption exists for the ATCOMP or ATSTAK programs. [FN5] ATCOMP and ATSTAK are county-developed programs and have not been copyrighted. We do not address here any questions that might be unique to commercial programs or to copyrighted programs. [FN6] The increasing use of computerized data storage and information retrieval systems by public bodies, and the ability to create and destroy computerized public records instantaneously through merely calling information onto a video display screen and then clearing the display, has vast implications for public bodies in their custody and maintenance of public records under ORS 192.005 to 192.190. Your inquiry does not require us to enter that analytical quicksand, and we decline to do so here. The cited statutes do not directly address the duty of public bodies to preserve such potentially evanescent computerized public records, and the area positively cries out for legislative attention. Or. Op. Atty. Gen. OP-6126, 1987 WL 278343 (Or.A.G.) END OF DOCUMENT © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.