If the City of Portland receives a public records request, this process may be used to redact specific information if it is exempt under Oregon Public Records Law, for example as trade secrets, by following the process outlined below.
When covered entities submit documents to the RFS Program that contain trade secrets, please complete this spreadsheet:
Once complete, email the spreadsheet to RFSinfo@portlandoregon.gov.
Exemption process
If Bureau of Planning and Sustainability (BPS) receives a public records request for documents submitted under the RFS program, the Bureau will make all efforts to redact trade secrets from public disclosure. The City Attorney’s Office will review the requested redactions to determine which redactions will be asserted, and which information will be released. Please note that the City Attorney is better able to assert that the information should be withheld if redaction requests are clear and narrowly drawn.
If the BPS receives a public records request for records of an RFS covered entity, BPS will directly notify them of the request. BPS will review submitted documents to determine if there might be trade secret material in the responsive records and share those records with the covered entity for review. BPS will also notify the City Attorney of trade secret issue.
When a covered entity receives notice of a Public Records request from BPS, they may review the materials and respond to BPS with additional information regarding trade secrets, as needed. BPS must normally receive a response in five business days. To evaluate whether Oregon Public Records law will allow the City to withhold any redacted content, covered entities need to identify material they believe is a trade secret and provide detailed information on your requested redactions. Simply stating the information is a trade secret is likely insufficient.[1]
Ultimately, the City Attorney will review all responses, follow up with covered entities, and make a final determination about redaction. City Attorney will be reviewing for legal sufficiency: ORS 192.355(9) incorporating ORS 646.461 et seq. (Uniform Trade Secrets Act) is asserted.[2]
If a covered entity wants to assert an exemption that a City Attorney does not agree are legally justified, the covered entity will be informed so they can pursue an injunction prior to the release deadline.
Additional Resources
The District Attorney has recently discussed trade secrets in the public records law in this opinion: https://www.mcda.us/wp-content/files_mf/Order_23-97.pdf
The Attorney General’s Public Records and Meetings Manual for further guidance: https://www.doj.state.or.us/wp-content/uploads/2019/07/public_records_and_meetings_manual.pdf. Specifically, pages 54 – 57 discuss trade secrets.
[1] ORS 646.461(4) defines a trade secret as: [I]nformation, including a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique or process that:
- Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
- Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
[2] The District Attorney clarified in Petition of Schmidt for the Oregonian, MCDA PRO 20-04 (2020), 3, that the Court of Appeals concluded that “the misappropriation of trade secrets provisions in ORS 646.461 et seq. apply unconditionally in the public records context. Pfizer Inc. V. Oregon Dep’t of Justice, 254 Or App 144, 158 (2012). That is to say, if release of a public record would constitute a misappropriation of a trade secret, those records are exempt from disclosure without consideration of the public’s interest in disclosure.”; see also Petition of Strachan, MCDA PRO 23-97 (2023), 3(“Oregon law provides that trade secrets, as defined by the Uniform Trade Secrets Act, are unconditionally exempt from disclosure under the Oregon public records law.”). Accordingly, per Pfizer and the District Attorney’s interpretation, the UTSA controls over the trade secrets exemption — ORS 192.345(2) — in the public records law.