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OREGON PUBLIC EMPLOYEES RETIREMENT SYSTEM









 

DIVISION 60
PUBLIC RECORDS ADMINISTRATION 

459-060-0001
Definitions
The words and phrases used in this Division have the same meaning given them in ORS Chapters 192, 238, 238A and OAR 459-005-0001. Specific and additional terms used in this Division are defined as follows unless context requires otherwise:
(1) “Medical records” means any reports, letters, or notes containing information regarding a member’s health condition (mental or physical), or ability to perform any work.
(2) “Member” means an employee of a PERS participating employer, a PERS member as defined in ORS 238.005 or 238A.005, a former PERS member, the beneficiary of a PERS member, an alternate payee as defined in ORS 238.465, or the beneficiary of an alternate payee.
(3) “Public disclosure” means disclosure of information to any individual other than the member or an individual who is legally authorized to act on behalf of the member as to PERS matters.
(4) “Requestor” means a person requesting disclosure of public records.
Stat. Auth.: ORS 192.430, 192.502, 238.650 & 238A.450

Stats. Implemented: ORS 192.410 - 192.505

Hist.: PERS 8-1996, f. & cert. ef. 11-12-96; PERS 16-2003, f. & cert. ef. 12-15-03; PERS 12-2008, f. & cert. ef. 7-31-08
459-060-0010
Requests and Fees for Public Records
(1) Requesting public records. Anyone may request disclosure of a public record for which the Public Employees Retirement System is the custodian by submitting a written request in person, via mail, email, or fax. PERS will provide for disclosure of any public record which an individual has a right to inspect, subject to any exemptions that may apply under ORS 192.410 to 192.505. PERS may determine the time and manner of inspection or copying to protect the records and to prevent interference with the regular activities of PERS and its employees. A request for public records must include:
(a) The name, address, and telephone number, if any, of the requestor;
(b) A sufficiently detailed description of the record(s) requested, including the identification, description, type, and format of the public record, if known to the requestor;
(c) The number of copies requested of the public record, if copies are requested; and
(d) The signature of the requestor, unless sent via email, and date of request.
(2) PERS response to public record requests. Upon receiving a public record request, PERS will provide a prompt response acknowledging receipt of the request, following the guidelines set forth in ORS 192.440(2).
(3) Time period for response. A reasonable period of time, as determined by PERS, must be allowed for staff to locate and assemble the requested record(s), and consult with the Attorney General's office, if needed. If the record requested is exempt from public disclosure under ORS 192.410 to 192.505, PERS will provide a response explaining why the record may not be released.
(4) Fees for public records. In accordance with ORS 192.440, PERS may charge a reasonable fee for public record requests. Fees are calculated to reimburse PERS for the actual costs of locating, producing, and providing copies of public records. A fee schedule is available upon request.
(a) A cost estimate will be provided to the requestor before the production of any records, other than those records that will be provided at no cost under section (5) below.
(b) All fees must be paid in advance of releasing the requested public records for inspection or before photocopies are provided, unless otherwise directed by the Director or the records will be provided at no cost under section (5) below. Payments must be made by check or money order and made payable to the Public Employees Retirement System.
(5) Records available at no cost. No fee will be charged to a member for one copy of the following public records:
(a) Approved Board minutes or Board orders for the past 12 months;
(b) Current PERS administrative rules;
(c) Current Oregon Revised Statutes pertaining to PERS;
(d) Current PERS publications;
(e) A PERS member's record to the extent permitted under OAR 459-060-0030 and 459-060-0020, excluding paragraph (3)(a)(D); and
(f) No fee will be charged for providing such records:
(A) In an alternative format when required under the Americans with Disabilities Act; or
(B) If the records can be provided at nominal expense where collection of the fee would be more than the cost to provide the records.
(6) Except as provided under section (5) of this rule, PERS may not reduce or waive fees for making public records available and must charge the actual costs for services provided.
Stat. Auth.: ORS 192.430, 192.440, 238.650, 238A.450 & 243.470

Stats. Implemented: ORS 192.410 - 192.505

Hist.: PERS 11-2000, f. 12-15-00 cert. ef. 1-1-01; PERS 7-2002, f. & cert. ef. 5-24-02; PERS 16-2003, f. & cert. ef. 12-15-03; PERS 12-2008, f. & cert. ef. 7-31-08
459-060-0020
Confidentiality of Member Records
(1) ORS 192.502(12) unconditionally
exempts from public disclosure a member’s nonfinancial membership records
and an active or inactive member’s financial records maintained by PERS. PERS
may not release such records to anyone other than the member, an authorized representative
of the member, or the member’s estate except:
(a) Upon the written authorization
of the member, or an individual that is legally authorized to act on behalf of the
member or the member’s estate as to PERS matters; or
(b) As otherwise provided in
OAR 459-060-0030.
(2) ORS 192.502(2) conditionally
exempts from public disclosure a retired member’s financial information maintained
by PERS. PERS may not release such records to anyone other than the member, an authorized
representative of the member, or the member’s estate unless:
(a) To do so would not constitute
an unreasonable invasion of privacy and there is clear and convincing evidence that
disclosure is in the public’s interest;
(b) PERS receives written authorization
from the member, or an individual that is legally authorized to act on behalf of
the member or the member’s estate as to PERS matters; or
(c) Release is provided for
under OAR 459-060-0030 or as required under the judgments in PERS v. Oregonian Publishing
Company LLC and PERS v. Multimedia Holdings Corporation, dba Statesman Journal and
Statesman Journal Media.
(3) Information distributed
pursuant to the judgments referenced in section (2)(c) of this rule will be updated
not less than annually.
(4)(a) Subject to subsection
(b) of this section, PERS may provide a member’s current or former employer
with information from the member’s records that is otherwise exempt from public
disclosure to the extent necessary to enable the employer:
(A) To determine whether a non-PERS
retirement plan maintained by the employer complies with any benefit or contribution
limitations or nondiscrimination requirement imposed by applicable federal or state
law;
(B) To apply any coordination
of benefits requirement contained in any non-PERS benefit plan maintained by the
employer;
(C) To perform any necessary
account reconciliation following an integration of the employer’s retirement
plan into PERS; or
(D) To reconcile an actuarial
valuation by providing the employer with the following member information:
(i) Salary information;
(ii) Employment history; or
(iii) Contribution history.
(b) PERS will not provide the information
described in subsection (a) of this section unless the employer demonstrates to
the satisfaction of PERS that the information is necessary to accomplish one of
the purposes described in paragraphs (A), (B), (C) and (D) of subsection (a) and
the employer certifies in writing that it will not disclose the information to any
third party except to the extent permitted under this division and ORS 192.502(10).
(5) To enable an employer to comply with
OAR 459-070-0100, PERS may disclose to the employer an employee’s status as
an active, inactive, or retired member, or a non-member.
(6) PERS will not provide a
mailing list of its members or their dependents to any individual or enterprise.
Stat. Auth.: ORS 192.502 &
238.650

Stats. Implemented: ORS 192.410-505,
237.410-520, 237.610-620, 237.950-980 & 238

Hist.: PERS 8-1996, f. &
cert. ef. 11-12-96; PERS 7-2002, f. & cert. ef. 5-24-02; PERS 16-2003, f. &
cert. ef. 12-15-03; PERS 12-2010, f. & cert. ef. 11-24-10; PERS 12-2011, f.
& cert. ef. 11-23-11
459-060-0030
Disclosure of Records Without Consent
(1) Records otherwise exempt from disclosure will be released in compliance with a judicial order, or pursuant to a valid subpoena or administrative order, or as necessary to comply with applicable federal and state tax reporting requirements.
(2) In the case of a medical emergency, medical records otherwise exempt from disclosure will be released only to the extent necessary where there is a clear and immediate danger to the well-being of a member, or a former member, or their surviving dependent(s). A medical emergency exists if a person is injured or, because of some other physical or mental condition, the person is unconscious, delirious or otherwise unable to convey consent.
(3) Notwithstanding OAR 459-060-0020, records will be disclosed to the extent required by ORS 192.410 to 192.505.
Stat. Auth.: ORS 192.502 & ORS 238 .650

Stats. Implemented: ORS 192.410 - ORS 192.505, ORS 237 .410 - ORS 237 .520, ORS 237 .610 - ORS 237 .620, ORS 237 .950 - ORS 237 .980, & ORS 238

Hist.: PERS 8-1996, f. & cert. ef. 11-12-96
 459-060-0050
Request for Benefit Estimate
Unless otherwise required by a judicial order or valid subpoena, or expressly authorized in writing by the affected active or inactive member, as defined in ORS 238 .005(7), PERS shall not provide an estimate of a potential service or disability retirement allowance to anyone other than the member.
Stat. Auth.: ORS 192.502 & ORS 238 .650

Stats. Implemented: ORS 192.410 - ORS 192.505, ORS 237 .410 - ORS 237 .520, ORS 237 .610, - ORS 237 .620, ORS 237 .950 - ORS 237 .980 & ORS 238

Hist.: PERS 8-1996, f. & cert. ef. 11-12-96
459-060-0200
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 ORS 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 ORS 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; or
(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; or
(c) Mediation in which the only parties are public bodies; or
(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 section (8) and (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 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." [Form not included. See ED. NOTE.]
(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 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 is 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 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 Director or designee 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 ORS 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 the provision does not waive confidentiality or inadmissibility.
[ED. NOTE: Forms referenced are available from the agency.]
Stat. Auth.: ORS 36.224 and 238.650

Stats. Implemented: ORS 36.224, 36.228, 36.230, 36.232 and ORS Chapter 238

Hist.: PERS 7-2000, f. & cert. ef. 12-5-00
459-060-0210
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 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 ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (7) 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 Governor's designee.
(7) Exceptions to confidentiality and inadmissibility.
(a) Any statement, 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 the 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 & ORS 238.650

Stats. Implemented: ORS 36.230(4) & ORS 238

Hist.: PERS 7-2000, f. & cert. ef. 12-5-00


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