The Public Records Ordinance

Although we haven't exactly been flooded with requests for the Tribe's new Public Records Ordinance, I've decided to post it here anyway because that is a lot easier than to have people each make individual requests for the document. As you can see, it's a fraction of the length of the actual Federal Freedom of Information Act, but then again we operate a government that is a fraction of a fraction of the United States government.

To be honest, the ordinance itself isn't exactly what I hoped for, in fact some of the language could probably be worked on. I would personally prefer something more liberal and open, but then again we had to draft something that most of Council would be comfortable with and willing to pass. Whoever said that compromise means all parties are equally dissatisfied might have been on to something. Regardless, here it is. I apologize for the length. Keep in mind it's one of our shorter ordinances.



Chris







ORIGINALLY ADOPTED: ___________, 2007
DATE AMENDED:
SUBJECT: Public Records
RESOLUTION NUMBER: ____-07



CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON

PUBLIC RECORDS ORDINANCE
TRIBAL CODE § ______



(a) AUTHORITY AND PURPOSE:

(1) The authority for this Ordinance is found in the Tribal Constitution under Article III, Section 1.

(2) The purpose of this Ordinance is to set forth an orderly method for Tribal members to request and receive copies of, or access to, certain Tribal records. The Tribal Council believes that Tribal Administration has a responsibility to inform its members about matters of interest to the entire membership, and that making Tribal records available to Tribal members helps fulfill this responsibility. The Tribal Council further believes that Tribal government should be open and transparent, but recognizes that the protection of Tribal sovereignty and culture prevents disclosure of some Tribal records.

(b) DEFINITIONS: For purposes of this Ordinance, the following terms shall be defined as follows:

(1) “Tribal Administration” means the Tribal Administration of the Confederated Tribes of the Grand Ronde Community of Oregon, and includes the Tribal Council, executive offices, Tribal Housing Authority, and all programs and departments. Tribal Administration does not include Tribal corporations, Tribal enterprises, or the Grand Ronde Gaming Commission.

(2) “Tribal member” means an enrolled member of the Confederated Tribes of the Grand Ronde Community of Oregon.

(3) “Record” includes, but is not limited to, a document, book, paper, photograph, file, sound recording, or machine readable electronic record, regardless of physical form or characteristics, made, received, filed, or recorded in connection with the transaction of Tribal business, whether or not confidential. “Record” does not include:

(A) Materials kept by the Tribe’s Cultural Resources Department which the Department has identified as confidential. For example, the Department may identify records as confidential because they are personal in nature or relate to a non-public cultural site;

(B) Items which the Cultural Resource Department or Records Administrator determine are too fragile to be handled or copied;

(C) Library materials acquired and preserved solely for reference and research purposes;

(D) Publications received by the Tribe;

(E) Messages on voice mail or other telephone message storage and retrieval systems;

(F) Electronic (e-mail) messages; and

(G) Calendars and schedules.

(c) RETENTION, MANAGEMENT, AND DESTRUCTION OF RECORDS:

Tribal Administration shall adopt policies for the retention, management, and destruction of Records that are in its custody. In developing these policies, the value of Records for cultural, historical, legal, administrative, and research purposes will be considered. The Tribe shall abide by any applicable records-retention requirements of the United States and the State of Oregon.

(d) RECORDS ADMINISTRATOR:

(1) The Tribal Council shall name a Records Administrator. It will be the responsibility of the Records Administrator to receive and act upon requests to view or obtain copies of Records.

(2) The Records Administrator shall develop a form for Tribal members to use to request copies of or access to Tribal Administrative Records, and shall ensure that this form is readily available to Tribal members. Among other things, the form shall require the requestor identify the Record requested with sufficient specificity to allow the Records Administrator to locate the Record.

(3) Upon receiving a form requesting access to or a copy of a Record, the Records Administrator shall send the requestor a card, letter, or e-mail acknowledging receipt of the request.

(4) Nothing shall prohibit the Records Administrator from requesting additional information from the requestor to assist him or her in locating the requested Record. The Records Administrator shall have no obligation to search for a Record if, in his or her view, the request lacks sufficient information to locate the Record.

(5) After the Records Administrator determines that he or she has sufficient information to locate a Record, he or she shall proceed to obtain the Record for copying or review; in doing so, the Records Administrator shall avoid unduly interfering with the regular duties of Tribal employees and Officials that may be in possession of the requested Record.

(6) After conducting a reasonable search for a requested Record, the Records Administrator shall notify the Tribal member requesting access to or a copy of the Record that

(A) The Record is available for viewing and/or copying (or if not, the reason why it is not available) and the cost, if any, of copying the Record or opportunities for viewing it; or

(B) Additional information is needed to locate the requested Record.

(7) Inspection of Records shall be at the office of the Records Administrator or at another location at the Tribal offices in Grand Ronde during regular business hours.

(8) If the requested Record is available on the Tribal member webpage, the Records Administrator shall refer the requestor to the webpage and shall have no further obligation to copy the Record or make it available for viewing.

(9) The Records Administrator will not provide electronic versions of Records to requestors.

(10) The Records Administrator shall report quarterly to the Tribal Council on the number of Record requests received, the number of requests satisfied, the costs of satisfying requests, and any recommendations for further legislative action.

(e) TRIBAL RECORDS:

(1) In furtherance of the Tribe’s policy to ensure to its members the right to know about the activities of Tribal government, Records are generally presumed to be available to the Tribal membership.

(2) The following are Records not available for copying or viewing:

(A) Records considered confidential under applicable Tribal, Federal or State laws or policies;

(B) Personal information, including telephone numbers, Social Security numbers, and home addresses;

(C) Personnel, payroll, or other employment-related Records (other than a Tribal member employee’s own personnel file);

(D) Medical Records; including Dental and Mental Health Records;

(E) Social Service Records relating to an individual;

(F) Foster Care Records;

(G) An individual’s housing Records (provided that an individual may obtain copies of or view Records relating to him- or herself);

(H) Records related to any investigation;

(I) Records subject to attorney-client privilege or which might be considered attorney work product;

(J) Records subject to a confidentiality provision;

(K) Records subject to a court order preventing their disclosure;

(L) Records that are in draft form;

(M) Investment Management directives, strategies and actual investment holdings;

(N) Member Services and Finance Department Records relating to an individual (provided that an individual may obtain copies of or view Records relating to him- or herself);

(O) Strategies related to the collection of debts to the Tribe; and

(P) Records, disclosure of which the Tribal Council determines might divulge political or business strategies.

(3) The following Records are available for viewing only through the Records Administrator. These Records may not be copied, photographed, or recorded, either in whole or in part, nor discussed with any non-Tribal member other than a spouse or person in a spousal relationship.

(A) Audited financial statements, including informational notes and disbursements;

(B) The Appropriations Budget;

(C) Investment Policy Statements, including Investment Policy Guidelines; and

(D) Material relating to land acquisition, management, and sale.

(f) INSPECTION OF TRIBAL RECORDS:

(1) Right to view and copy Records:

(A) Only enrolled members of the Tribe have a right to view or obtain copies of Records under this Ordinance.

(B) If a Tribal member, who is a party to a judicial or administrative proceeding to which the Tribe is also a party, makes a request to view or receive a copy of a Record that might relate to the proceeding, he or she must submit an original Records request in writing to the Records Administrator and, at the same time, a copy of the request to the Tribal Attorney.

(C) The Records Administrator shall establish fees reasonably calculated to reimburse the Tribe for its actual cost in making Records available, including costs for compiling, copying, and mailing records, provided that the first twenty
(20) pages of Records shall be copied at no cost to the requestor. The fee schedule shall be included on the form Tribal members use to request access to or copies of Records.

(2) Records Containing Both Exempt and Nonexempt Information: If any Record contains information which is available for copying or review under this Ordinance, as well as information which is exempt from disclosure, the Records Administrator shall separate the exempt and nonexempt information and make the nonexempt information available for copying or examination, through redaction or other means which makes clear that certain information has been withheld from disclosure.

(3) Appeal of Denials:

(A) Any Tribal member denied the right to view or receive a copy of a Record, or portion of a Record, may request that the General Manager, or other person designated in the denial (the “Reviewing Official”), review the Record to determine if it may be provided for inspection or copying under this Ordinance. The burden is on the Records Administrator to show that the Record should not be produced. The Reviewing Official shall issue an order denying or granting the request, or denying it in part and granting it in part, within twenty-one (21) days from the day he or she receives the request.

(B) If the Reviewing Official grants the request and instructs the Records Administrator to disclose the Record, or if the Reviewing Official grants the petition in part and orders the Records Administrator to disclose a portion of the Record, the Records Administrator shall comply with the order in full within fifteen (15) days after issuance of the order. If the Reviewing Official denies the petition in whole or in part, the person seeking disclosure may appeal the decision to the Tribal Court by filing within thirty (30) days of the decision a petition for declaratory relief with the Court. A copy of this petition shall be served on the Records Administrator, the Reviewing Official, and the Tribal Attorney in accordance with the rules of the Tribal Court.

(4) Tribal Court:

(A) In any suit filed under this Ordinance, the Tribal Court has jurisdiction to order the production of Records improperly withheld from the Tribal member seeking disclosure. The Court shall determine the matter de novo and the burden is on the Tribe to establish that the Records should not be released. The Court may view the documents in controversy in private, off the record, before reaching a decision.

(B) If a person seeking the right to view or receive a copy of a Record prevails in his or her suit, the person may be entitled to reasonable court costs and attorneys fees.

(g) INAPPROPRIATE DISCLOSURE AND POSSESSION OF TRIBAL RECORDS:

(1) It shall be a violation of Tribal law for any Tribal Official or employee to provide a Record to someone who is not authorized to have access to the Record under this Ordinance, unless it is otherwise part of the ordinary course of the Tribal Official’s or employee’s position to provide the Record to such person.

(2) It shall be a violation of Tribal law for anyone to knowingly possess or distribute a Record or confidential Tribal document that he or she is not authorized to possess or distribute. Any person found by the Tribal Court to be so in violation of Tribal law shall be subject to a civil fine of $1,000 if it is his or her first violation for possessing or distributing such Record or confidential document. The civil fine shall be $2,000 for a second violation and $3,000 for a third violation. Anyone found by the Tribal Court to be in violation of this Ordinance for possessing or distributing a Record or confidential document for a fourth time, shall lose his or her right to view or obtain copies of Records.


I certify this to be a true copy of the Confederated Tribes of the Grand Ronde Community of Oregon Public Records Ordinance.


_______________________________
Tribal Council Secretary