Procedural Rules

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_700/oar_733/733_001.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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TRAVEL INFORMATION COUNCIL





 

DIVISION 1
PROCEDURAL RULES

733-001-0000
Notice of
Proposed Rules
In accordance with
ORS 183.341, to provide a reasonable opportunity for interested persons to be notified
of proposed actions, prior to the adoption, amendment, or repeal of a permanent
rule, the Travel Information Council shall give notice of the proposed adoption,
amendment, or repeal:
(1) In the
Secretary of State's Bulletin referred to in ORS 183.360 and in accordance with
183.335.
(2) By mailing
a copy of the notice to persons on the Travel Information Council's mailing lists
for specific interest areas established pursuant to ORS 183.335(8).
(3) By mailing
a copy of the notice to legislators as provided in ORS 183.335(15).
(4) By mailing
a copy of the notice to the following:
(a) Associated
Press;
(b) Capitol
Press Room; and
(c) Statesman-Journal
newspaper.
Stat. Auth.: ORS
183.341

Stats. Implemented:
ORS 183.335 & 183.341

Hist.: TIC
10, f. & ef. 8-19-77; TIC 1-2013, f. & cert. ef. 4-15-13
733-001-0005
Model Rules
of Procedure
Pursuant to ORS
183.341, the Travel Information Council adopts the Attorney General's Model Rules
of Procedure under the Administrative Procedures Act as amended and effective January
1, 2008.
[ED. NOTE: The full
text of the Attorney General's Model Rules of Procedure is available from the office
of the Attorney General or the Travel Information Council.]
Stat. Auth.:
ORS 183.341

Stats. Implemented:
ORS 183.341(2), 183.341(4) & 183.390

Hist.: TIC
10, f. & ef. 8-19-77; TIC 1-2013, f. & cert. ef. 4-15-13
733-001-0010
Model Rules
of Public Contracting for Construction Services
Pursuant to ORS
279A.065, the Travel Information Council adopts the Attorney General’s Model
Rules of General Provisions Related to Public Contracts for Construction Services
in OAR chapter 137, division 49.
Stat. Auth.: ORS
183.341

Stats. Implemented:
ORS 183.341 & 279A.065

Hist.: TIC
1-2013, f. & cert. ef. 4-15-13
733-001-0015
Assumed Business
Name
Pursuant to ORS
377.835(5) and 648.005, the Travel Information Council adopts the Assumed Business
Name of the Oregon Travel Experience to conduct or transact business in the State
of Oregon.
Stat. Auth.: ORS
377.835(5) & 648.005

Stats. Implemented:
ORS 648.005

Hist.: TIC
1-2013, f. & cert. ef. 4-15-13
733-001-0025
Public Records
Request Requirements and Fees
All information
in the custody of the Travel Information Council (Council) will be disclosed or
protected from disclosure in accordance with Chapter 192 of the Oregon Revised Statutes.
(1) As used
in this rule, the following definitions apply:
(a) "Non-Standard"
means:
(A) Audio
tapes;
(B) Video
Tapes;
(C) Microfilm,
and
(D) Machine
readable formats such as computer hard drives, and magnetic tape.
(b) "Certified
copies" means, photocopies, that on the date copied, are true and accurate copy
of the original record. The Council cannot certify as to any subsequent changes
or manipulation of the record.
(c) "Research"
means the compilation of information:
(A) That
is not readily and immediately available from a single source or a group of related
sources; or
(B) That
requires a search to locate the requested information.
(2) A request
for photocopies, electronically distributed (email) copies and certifications of
public records that are on file with the Council can be made verbally, in writing,
by fax or by email.
(a) The request
must:
(A) Include
name and address of the person requesting the public record;
(B) Include
telephone number of the person requesting the public record; and
(C) Adequately
describe the record(s) requested including subject matter, approximate creation
date(s) and name(s) of person(s) involved in creation.
(b) The request
should:
(A) Be dated;
(B) Be signed
by the person requesting the public record; and
(C) Indicate
a date by which the records are being requested.
(3) The Council’s
Director or designee will respond to the request in a reasonable amount of time
and acknowledge the request, identify an estimate of the expected cost of meeting
the request, and the expected date and location at which the information will be
provided. The regular discharge of duties of the Council will be neither interrupted
nor interfered with because of time or effort required to respond to the request.
(4) Unless
otherwise provided by statute or other administrative rule, the fees will be calculated
as follows:
(a) $0.25
per page for photocopies.
(b) Actual
cost for use of material and equipment for producing copies of non-standard records.
(c) Upon
request, copies of public records may also be provided on a computer disk or compact
disk (CD) if the document(s) are stored in the Council’s computer system.
Disks will be provided at a cost of $5.00 per disk and may contain as much information
as the disk will hold. Due to the threat of computer viruses, the Council will not
permit requestors to provide disks for electronic reproduction of computer records.
(d) Labor
charges that include researching, locating, compiling, editing or otherwise processing
information and records:
(A) No charge
for the first 15 minutes of staff time.
(B) Beginning
with the 16th minute, the charge per total request is $25.00 per hour or $6.25 per
quarter-hour. A prorated fee is not available for less than a quarter-hour.
(e) The actual
cost for delivery of records such as postage and courier fees.
(f) $5.00
for each true copy certification.
(5) Electronic
Records. Copies of requested electronic records may be provided in the format or
manner maintained by the Council. The Director will perform all downloading, reproducing,
formatting and manipulating of records.
(6) The Council
may charge a fee for the cost of time spent by an attorney in reviewing the public
records, redacting material from the public records or segregating the public records
into exempt and nonexempt records. Records request fees will include actual attorney
fees charged to the Council related to the request. The Director will not charge
a fee greater than $25.00 under this section unless the Director first provides
the requester with a written notification of the estimated amount of the fee and
the requester confirms that the requester wants the Director to proceed with making
the public record available.
(7) Pre-payment
may be requested by the Director prior to record(s) being provided.
(8) A person
who believes that there has been an unreasonable denial of a fee waiver or fee reduction
may petition the Attorney General or the district attorney in the same manner as
a person petitions when inspection of a public record is denied under ORS 192.410
to 192.505. The Attorney General, the district attorney and the court have the same
authority in instances when a fee waiver or reduction is denied as it has when inspection
of a public record is denied.
Stat. Auth.: ORS
192.430, 192.440 & 377.835(5)

Stats. Implemented:
ORS 192.410 – 192.505

Hist.: TIC
1-2013, f. & cert. ef. 4-15-13
Confidentiality
of Dispute Resolution by Mediation
733-001-0030
Confidentiality
and Inadmissibility of Mediation Communications
(1) The words and
phrases used in this rule have the same meaning as given to them in ORS 36.110 and
36.234.
(2) Nothing
in this rule affects any confidentiality created by other law. Nothing in this rule
relieves a public body from complying with the Public Meetings Law, ORS 192.610
to 192.690. Whether or not they are confidential under this or other rules of the
agency, mediation communications are exempt from disclosure under the Public Records
Law to the extent provided in 192.410 to 192.505.
(3) This
rule applies only to mediations in which the agency is a party or is mediating a
dispute as to which the agency has regulatory authority. This rule does not apply
when the agency is acting as the "mediator" in a matter in which the agency also
is a party as defined in ORS 36.234.
(4) To the
extent mediation communications would otherwise be compromise negotiations under
ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as
provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary
in section (9) of this rule.
(5) Mediations
Excluded. Sections (6)–(10) of this rule do not apply to:
(a) Mediation
of workplace interpersonal disputes involving the interpersonal relationships between
this agency's employees, officials or employees and officials, unless a formal grievance
under a labor contract, a tort claim notice or a lawsuit has been filed;
(b) Mediation
in which the person acting as the mediator will also act as the hearings officer
in a contested case involving some or all of the same matters;
(c) Mediation
in which the only parties are public bodies;
(d) Mediation
involving two or more public bodies and a private party if the laws, rule or policies
governing mediation confidentiality for at least one of the public bodies provide
that mediation communications in the mediation are not confidential; or
(e) Mediation
involving 15 or more parties if the agency has designated that another mediation
confidentiality rule adopted by the agency may apply to that mediation.
(6) Disclosures
by Mediator. A mediator may not disclose or be compelled to disclose mediation communications
in a mediation and, if disclosed, such communications may not be introduced into
evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the
parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation
communication may be disclosed or introduced into evidence in a subsequent proceeding
as provided in subsections (c)–(d), (j)–(l) or (o)–(p) of section
(9) of this rule.
(7) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in sections
(8)–(9) of this rule, mediation communications are confidential and may not
be disclosed to any other person, are not admissible in any subsequent administrative,
judicial or arbitration proceeding and may not be disclosed during testimony in,
or during any discovery conducted as part of a subsequent proceeding, or introduced
as evidence by the parties or the mediator in any subsequent proceeding.
(8) Written
Agreement. Section (7) of this rule does not apply to a mediation unless the parties
to the mediation agree in writing, as provided in this section, that the mediation
communications in the mediation will be confidential and/or nondiscoverable and
inadmissible. If the mediator is the employee of and acting on behalf of a state
agency, the mediator or an authorized agency representative must also sign the agreement.
The parties' agreement to participate in a confidential mediation must be in substantially
the following form. This form may be used separately or incorporated into an "agreement
to mediate."
Agreement to Participate
in a Confidential Mediation
The agency
and the parties to the mediation agree to participate in a mediation in which the
mediation communications are confidential and/or nondiscoverable and inadmissible
to the extent authorized by OAR 733-001-0030(7) and this agreement. This agreement
relates to the following mediation:
(a) _____________________________________________
(Identify
the mediation to which this agreement applies)
(b) To the
extent authorized by OAR 733-001-0030(7), mediation communications in this mediation
are: (check one or more)
___
confidential and may not be disclosed to any other person
___
not admissible in any subsequent administrative proceeding and may not be disclosed
during testimony in, or during any discovery conducted as part of a subsequent administrative
proceeding, or introduced as evidence by the parties or the mediator in any subsequent
administrative proceeding
___
not admissible in any subsequent administrative, judicial or arbitration proceeding
and may not be disclosed during testimony in, or during any discovery conducted
as part of a subsequent administrative, judicial or arbitration proceeding, or introduced
as evidence by the parties or the mediator in any subsequent administrative, judicial
or arbitration proceeding
(c) ________________________________________________
Name of Agency
________________________________________
__________
Signature
of Agency's authorized representative (when agency Date is a party) or Agency employee
acting as the mediator (when Agency is mediating the dispute)
(d) _________________________________________________
Name of party
to the mediation
______________________________________
____________
Signature
of party's authorized representative Date
(e) _________________________________________________
Name of party
to the mediation
______________________________________
____________
Signature
of party's authorized representative Date
(9) Exceptions to
confidentiality and inadmissibility:
(a) Any statements,
memoranda, work products, documents and other materials, otherwise subject to discovery
that were not prepared specifically for use in the mediation are not confidential
and may be disclosed or introduced into evidence in a subsequent proceeding;
(b) Any mediation
communications that are public records, as defined in ORS 192.410(4), and were not
specifically prepared for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law;
(c) A mediation
communication 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. A mediation communication is not
confidential and may be disclosed in a subsequent proceeding to the extent its disclosure
may further the investigation or prosecution of a felony crime involving physical
violence to a person.
(d) Any mediation
communication related to the conduct of a licensed professional that is made to
or in the presence of a person who, as a condition of his or her professional license,
is obligated to report such communication by law or court rule is not confidential
and may be disclosed to the extent necessary to make such a report;
(e) The parties
to the mediation may agree in writing that all or part of the mediation communications
are not confidential or that all or part of the mediation communications may be
disclosed and may be 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;
(f) A party
to the mediation may disclose confidential mediation communications to a person
if the party's communication with that person is privileged under ORS Chapter 40
or other provision of law. A party to the mediation may disclose confidential mediation
communications to a person for the purpose of obtaining advice concerning the subject
matter of the mediation, if all the parties agree;
(g) An employee
of the agency may disclose confidential mediation communications to another agency
employee so long as the disclosure is necessary to conduct authorized activities
of the agency. An employee receiving a confidential mediation communication under
this subsection is bound by the same confidentiality requirements as apply to the
parties to the mediation;
(h) A written
mediation communication may be disclosed or introduced as evidence in a subsequent
proceeding at the discretion of the party 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 the mediator or another party who
does not agree to the disclosure;
(i) In any
proceeding to enforce, modify or set aside a mediation agreement, a party to the
mediation may disclose mediation communications and such communications may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the request
of a party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other than
the parties to the agreement;
(j) In an
action for damages or other relief between a party to the mediation and a mediator
or mediation program, mediation communications are not confidential and may be disclosed
and may be introduced as evidence to the extent necessary to prosecute or defend
the matter. At the request of a party, the court may seal any part of the record
of the proceeding to prevent further disclosure of the mediation communications
or agreements;
(k) When
a mediation is conducted as part of the negotiation of a collective bargaining agreement,
the following mediation communications are not confidential and such communications
may be introduced into evidence in a subsequent administrative, judicial or arbitration
proceeding:
(A) A request
for mediation; or
(B) A communication
from the Employment Relations Board Conciliation Service establishing the time and
place of mediation; or
(C) A final
offer submitted by the parties to the mediator pursuant to ORS 243.712; or
(D) A strike
notice submitted to the Employment Relations Board.
(l) To the
extent a mediation communication contains information the substance of which is
required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that
portion of the communication may be disclosed as required by statute;
(m) Written
mediation communications prepared by or for the agency or its attorney are not confidential
and may be disclosed and may be introduced as evidence in any subsequent administrative,
judicial or arbitration proceeding to the extent the communication does not contain
confidential information from the mediator or another party, except for those written
mediation communications that are:
(A) Attorney-client
privileged communications so long as they have been disclosed to no one other than
the mediator in the course of the mediation or to persons as to whom disclosure
of the communication would not waive the privilege; or
(B) Attorney
work product prepared in anticipation of litigation or for trial; or
(C) Prepared
exclusively for the mediator or in a caucus session and not given to another party
in the mediation other than a state agency; or
(D) Prepared
in response to the written request of the mediator for specific documents or information
and given to another party in the mediation; or
(E) Settlement
concepts or proposals, shared with the mediator or other parties.
(n) A mediation
communication made to the agency may be disclosed and may be admitted into evidence
to the extent the Travel Information Council Director determines that disclosure
of the communication is necessary to prevent or mitigate a serious danger to the
public's health or safety, and the communication is not otherwise confidential or
privileged under state or federal law;
(o) The terms
of any mediation agreement are not confidential and may be introduced as evidence
in a subsequent proceeding, except to the extent the terms of the agreement are
exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms
to be confidential under 17.095 or state or federal law requires the terms to be
confidential;
(p) The mediator
may report the disposition of a mediation to the agency at the conclusion of the
mediation so long as the report does not disclose specific confidential mediation
communications. The agency or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the provisions
of ORS 36.232(4).
(10) When
a mediation is subject to section (7) of this rule, the agency will provide to all
parties to the mediation and the mediator a copy of this rule or a citation to the
rule and an explanation of where a copy of the rule may be obtained. Violation of
this provision does not waive confidentiality or inadmissibility.
Stat. Auth.: ORS
36.224 & 377.835(5)

Stats. Implemented:
ORS 36.224, 36.228, 36.230 & 36.232

Hist.: TIC
1-2013, f. & cert. ef. 4-15-13
733-001-0035
Confidentiality
and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications
(1) This rule applies
to workplace interpersonal disputes, which are disputes involving the interpersonal
relationships between this agency's employees, officials or employees and officials.
This rule does not apply to disputes involving the negotiation of labor contracts
or matters about which a formal grievance under a labor contract, a tort claim notice
or a lawsuit has been filed.
(2) The words
and phrases used in this rule have the same meaning as given to them in ORS 36.110
and 36.234.
(3) Nothing
in this rule affects any confidentiality created by other law.
(4) To the
extent mediation communications would otherwise be compromise negotiations under
ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as
provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary
in section (9) of this rule.
(5) Disclosures
by Mediator. A mediator may not disclose or be compelled to disclose mediation communications
in a mediation and, if disclosed, such communications may not be introduced into
evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the
parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation
communication may be disclosed or introduced into evidence in a subsequent proceeding
as provided in subsections (c) or (h)–(j) of section (7) of this rule.
(6) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in section (7)
of this rule, mediation communications in mediations involving workplace interpersonal
disputes are confidential and may not be disclosed to any other person, are not
admissible in any subsequent administrative, judicial or arbitration proceeding
and may not be disclosed during testimony in, or during any discovery conducted
as part of a subsequent proceeding, or introduced into evidence by the parties or
the mediator in any subsequent proceeding so long as:
(a) The parties
to the mediation and the agency have agreed in writing to the confidentiality of
the mediation; and
(b) The person
agreeing to the confidentiality of the mediation on behalf of the agency:
(A) Is neither
a party to the dispute nor the mediator; and
(B) Is designated
by the agency to authorize confidentiality for the mediation; and
(C) Is at
the same or higher level in the agency than any of the parties to the mediation
or who is a person with responsibility for human resources or personnel matters
in the agency, unless the agency head or member of the governing board is one of
the persons involved in the interpersonal dispute, in which case the Governor or
the Governor's designee.
(7) Exceptions
to confidentiality and inadmissibility.
(a) Any statements,
memoranda, work products, documents and other materials, otherwise subject to discovery
that were not prepared specifically for use in the mediation are not confidential
and may be disclosed or introduced into evidence in a subsequent proceeding;
(b) Any mediation
communications that are public records, as defined in ORS 192.410(4), and were not
specifically prepared for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law;
(c) A mediation
communication 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. A mediation communication is not
confidential and may be disclosed in a subsequent proceeding to the extent its disclosure
may further the investigation or prosecution of a felony crime involving physical
violence to a person;
(d) The parties
to the mediation may agree in writing that all or part of the mediation communications
are not confidential or that all or part of the mediation communications may be
disclosed and may be 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;
(e) A party
to the mediation may disclose confidential mediation communications to a person
if the party's communication with that person is privileged under ORS Chapter 40
or other provision of law. A party to the mediation may disclose confidential mediation
communications to a person for the purpose of obtaining advice concerning the subject
matter of the mediation, if all the parties agree;
(f) A written
mediation communication may be disclosed or introduced as evidence in a subsequent
proceeding at the discretion of the party 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 the mediator or another party who
does not agree to the disclosure;
(g) In any
proceeding to enforce, modify or set aside a mediation agreement, a party to the
mediation may disclose mediation communications and such communications may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the request
of a party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other than
the parties to the agreement;
(h) In an
action for damages or other relief between a party to the mediation and a mediator
or mediation program, mediation communications are not confidential and may be disclosed
and may be introduced as evidence to the extent necessary to prosecute or defend
the matter. At the request of a party, the court may seal any part of the record
of the proceeding to prevent further disclosure of the mediation communications
or agreements;
(i) To the
extent a mediation communication contains information the substance of which is
required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that
portion of the communication may be disclosed as required by statute;
(j) The mediator
may report the disposition of a mediation to the agency at the conclusion of the
mediation so long as the report does not disclose specific confidential mediation
communications. The agency or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the provisions
of ORS 36.232(4).
(8) The terms
of any agreement arising out of the mediation of a workplace interpersonal dispute
are confidential so long as the parties and the agency so agree in writing. Any
term of an agreement that requires an expenditure of public funds, other than expenditures
of $1,000 or less for employee training, employee counseling or purchases of equipment
that remain the property of the agency, may not be made confidential.
(9) When
a mediation is subject to section (6) of this rule, the agency will provide to all
parties to the mediation and to the mediator a copy of this rule or an explanation
of where a copy of the rule may be obtained. Violation of this provision does not
waive confidentiality or inadmissibility.
Stat. Auth.: ORS
36.224 & 377.835(5)

Stats. Implemented:
ORS 36.230(4)

Hist.: TIC
1-2013, f. & cert. ef. 4-15-13

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