No. 649 September 11, 2024 1

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

WASHINGTON COUNTY,

Plaintiff-Respondent,

and

OREGON SECRETARY OF STATE,

Intervenor-Respondent,

v.

Tim SIPPEL,

Defendant-Appellant.

Washington County Circuit Court

22CV07782; A180918

Janelle F. Wipper, Judge.

Submitted August 14, 2024.

Stephen J. Joncus and Joncus Law P.C. filed the briefs for 

appellant.

Jason Bush filed the brief for respondent Washington 

County.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Christopher A. Perdue, Assistant 

Attorney General, filed the brief for respondent Oregon 

Secretary of State.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

TOOKEY, P. J.

Affirmed.
2 Washington County v. Sippel
Cite as 335 Or App 1 (2024) 3

TOOKEY, P. J.

In this case concerning a public records request, 

defendant appeals a trial court judgment determining that 

a certain zip file is conditionally exempt from the disclosure 

requirements for public records and, further, that the public 

interest does not require disclosure of the file. The zip file at 

issue in this appeal contains a backup of the database from 

the November 2020 election in Washington County, which 

includes the data itself as well as a proprietary database 

architecture.

In his first three assignments of error, defendant 

contends that the trial court erred when it determined 

that the zip file was conditionally exempt from disclosure 

because it was a “trade secret” under ORS 192.345(2), a 

“computer program” under ORS 192.345(15), and “information that would reveal * * * security measures” under ORS 

192.345(23). In his fourth assignment of error, defendant 

contends that, even assuming that the zip file falls within 

one of the conditional exemptions from disclosure in ORS 

192.345, the trial court erred when it determined that the 

public interest in disclosure did not require disclosure in the 

circumstances of this case.

We agree with the trial court that the zip file is 

subject to the conditional statutory exemption for “computer 

programs” under ORS 192.345(15). That conclusion obviates 

the need to consider the trial court’s determinations that 

the “trade secrets” and “security measures” exemptions, 

ORS 192.345(2) and (23), apply in this case. We also conclude that the public interest does not require disclosure in 

this case. Therefore, we affirm.

I. BACKGROUND

The relevant historical facts are undisputed. In 

October 2021, defendant made a public records request to 

the Washington County Elections Office for disclosure of 

“an electronic copy of the ballot database from a public test 

of the voting system.” Washington County (“the county”) 

denied that request in November 2021.

Defendant appealed that denial to the Washington 

County District Attorney, and, in February 2022, the District 
4 Washington County v. Sippel

Attorney issued an order requiring the county to “produce 

an electronic copy of the ballot database from a public test 

of the voting system,” including “ballot image files [and] the 

SQL database and all data files that it references.”

The county then filed a complaint in the Washington 

County Circuit Court, seeking declaratory relief from public 

disclosure of that database backup of a public test of the 

voting system in Washington County. The state intervened 

in the litigation in support of the county, on the basis that it 

has an interest in maintaining the uniformity and security 

of elections. See ORCP 33 C (“At any time before trial, any 

person who has an interest in the matter in litigation may, 

by leave of court, intervene. In exercising its discretion, the 

court shall consider whether the intervention will unduly 

delay or prejudice the adjudication of the rights of the original parties.”).

During the same period, in May 2022, the county, in 

connection with a different public records request, inadvertently provided a zip file—the zip file at issue in this appeal, 

which contains a database backup of the November 2020 

election in Washington County—to an individual who is not 

a party to this litigation. Defendant subsequently gained 

access to the zip file through that other individual.

The county filed a motion for a temporary protective 

order to limit defendant’s use and dissemination of the zip 

file, which the trial court granted.

A bench trial was held on September 20 and 21, 

2022. Expert witnesses offered by all parties generally 

agreed about the contents of the zip file: It contains a single 

compressed text file in which the lines of text represent both 

the database’s underlying data as well as its associated system architecture (“such as tables, views, indexes, and stored 

procedures”), which are written in a computer programming 

language known as SQL. But the parties disagreed about 

the legal question of whether the zip file was exempt from 

public disclosure.

The county and the state both argued that the 

zip file fell within three conditional statutory exemptions 

from disclosure: “trade secrets,” ORS 192.345(2); “computer 
Cite as 335 Or App 1 (2024) 5

programs,” ORS 192.345(15); and “security measures,” ORS 

192.345(23). The county and the state also argued that the 

public interest in disclosure of the zip file was outweighed 

by the county’s interest in maintaining the confidentiality of 

the zip file. Defendant disagreed as to each of those points.

Following the trial, the trial court issued an order 

making findings. The findings most relevant to this case are 

as follows:

•	 In 2016, Washington County contracted with ClearBallot, an election software vendor, to purchase hardware, a software license, and staff training service 

to teach county officials to use the new system. The 

county now uses the ClearBallot system to “finalize ballot design, scan ballots, and compile election results,” 

including the results of the November 2020 election.

•	 The zip file at issue in this case is a “compressed text 

file” that constitutes a backup of the relational database 

of the November 2020 election in Washington County. 

The purpose of that backup is to allow for the database 

to be reconstructed in a different county in the event 

that the tabulation system in Washington County is 

compromised, i.e. by a natural disaster or attack.

•	 When the zip file is “uncompressed,” the resulting text 

file contains approximately 5,000 lines of computer 

code or script written in the SQL programming language. 3,500 of those lines of code are data entries; 

the remaining 1,500 are “system architecture, such 

as tables, views, indexes, and stored procedures.” That 

system architecture includes “computer instructions,” 

which are “commands that are distinct from data.” And 

that those instructions allow for “the rapid organization, storage, retrieval, compilation, and calculation of 

data.” Specifically, they allow for the “SQL database 

[contained in the zip file] to be rebuilt into its original 

form through use of a SQL software program such as 

MySQL.”

•	 The architecture is a part of the ClearBallot software that the county purchased and uses to tabulate 

election results. That architecture is proprietary and 

ClearBallot has an interest in protecting it from competitors in the industry.
6 Washington County v. Sippel

•	 Election systems face a variety of potential threats from 

malicious actors. Public disclosure of the zip file would 

constitute a security risk to the administration of elections in Washington County and in any other county 

using a ClearBallot system. Knowledge of features of 

the ClearBallot database architecture that are in the 

zip file could aid a malicious actor to plan and carry out 

an attack on ClearBallot elections systems. The confidentiality of the zip file, specifically the database architecture, makes up one of the multiple “layer[s] of security” the county uses to protect the tabulation of election 

results, and public disclosure of the zip file would compromise an important layer of the security in the ballot 

counting process.

•	 As distinct from the database architecture, much of the 

data contained in the zip file can be—or has already 

been—obtained by the public for the purpose of independently verifying the accuracy of election results. 

Those data include “voter registration records, records 

of accepted and rejected ballots, images of each cast ballot, machine test information, and the cast vote record” 

(i.e., an “electronic log of how each ballot was counted 

in an election, after the being separated from its verified voter signature”). Defendant himself had already 

obtained that data through other records requests, had 

used it to verify the accuracy of the November 2020 

election results, and had reverse-engineered his own 

computer code to count ballots.

After making those findings, the trial court ruled 

that all three exemptions that were raised—“trade secrets,” 

“computer programs,” and “security measures”—applied to 

the zip file, and that the county’s interest in maintaining 

the confidentiality of the zip file outweighed the public interest in disclosure.

II. DISCUSSION

On appeal, defendant challenges the trial court’s 

legal conclusions about the applicability of the three conditional exemptions to the zip file and the relative weight of 

the interests at play but does not challenge any of the trial 

court’s factual findings. Defendant raises four assignments 

of error. As noted, in his first three assignments of error, 

defendant contends that the trial court erred in applying 
Cite as 335 Or App 1 (2024) 7

each of the three conditional exemptions raised. In his 

fourth assignment of error, defendant contends that, even 

assuming that the zip file falls under a conditional exemption, the trial court erred in balancing the public interest 

against the interest of the public body when it determined 

that the public interest did not require disclosure.

A. Public Records Requests Generally

ORS 192.314(1) provides that “[e]very person has

a right to inspect any public record of a public body in 

this state, except as otherwise expressly provided by 

ORS 192.338, 192.345, and 192.355.” Under the statutory 

scheme, “[d]isclosure of public records is the rule and exemptions from disclosure are to be narrowly construed[.]” Mail 

Tribune, Inc. v. Winters, 236 Or App 91, 94, 237 P3d 831 

(2010) (citing Guard Publishing Co. v. Lane County School 

Dist., 310 Or 32, 37, 791 P2d 854 (1990)). A public body seeking to withhold a public record from disclosure “carries the 

burden of proving an exemption on judicial review.” Id. at 95 

(citing Kluge v. Oregon State Bar, 172 Or App 452, 456, 19 

P3d 938 (2001)).

ORS 192.345 provides for conditional exemptions for 

particular types of public records. In determining whether a 

public record is exempt from disclosure under ORS 192.345, 

we determine (1) whether the public record falls under one 

of the listed exemptions, and, if so, (2) whether the public 

interest nevertheless “requires disclosure in the particular instance.” See Mail Tribune, Inc., 236 Or App at 96 (so 

analyzing whether a public record is exempt from disclosure as a security measure under ORS 192.501(23) (renumbered ORS 192.345(23) in 2015)). We address each prong 

of analysis—the statutory exemption prong and the public 

interest prong—in turn.

B. The Conditional Statutory Exemptions in This Case

Defendant contends that the trial court misapplied 

the statutory exemptions as a matter of law. “We review the 

applicability of exemptions from disclosure under the Public 

Records Law as a question of law.” In Defense of Animals v. 

OHSU, 199 Or App 160, 172, 112 P3d 336 (2005). Although 

defendant challenges the trial court’s determination that all 
8 Washington County v. Sippel

three statutory exemptions raised in this case apply to the 

zip file, we examine only the applicability of the “computer 

programs” exemption under ORS 192.345(15), because our 

conclusion, explained below, that that exemption applies to 

the zip file obviates the need to consider the other two exemptions. See id. (“If any of the claimed exemptions applies to a 

particular record or portion of a record, we need not consider 

the applicability of other exemptions to that record or portion of a record.”).

ORS 192.345(15) conditionally exempts from public 

disclosure all “[c]omputer programs developed or purchased 

by or for any public body for its own use.” That statute defines 

“computer program:”

“‘[C]omputer program’ means a series of instructions or 

statements which permit the functioning of a computer 

system in a manner designed to provide storage, retrieval 

and manipulation of data from such computer system, and 

any associated documentation and source material that 

explain how to operate the computer program. ‘Computer 

program’ does not include:

“(a) The original data, including but not limited to 

numbers, text, voice, graphics and images;

“(b) Analyses, compilations and other manipulated 

forms of the original data produced by use of the program; 

or

“(c) The mathematical and statistical formulas which 

would be used if the manipulated forms of the original data 

were to be produced manually.”

Given that definition and the trial court’s findings, 

we conclude that the trial court did not err when it determined that the zip file constituted a “computer program” 

within the meaning of ORS 192.345(15).

As noted above, the trial court found that the zip 

file is written in the “SQL computer programming language”; it contains about 1,500 lines of code constituting 

“system architecture, such as tables, views, indexes, and 

stored procedures”; that system architecture “includes computer instructions, which are commands that are distinct 

from data”; and those “computer instructions” permit the 
Cite as 335 Or App 1 (2024) 9

“rapid organization, storage, retrieval, compilation, and calculation of data.” Specifically, they allow for the SQL database to be rebuilt into its original form through the use of 

the MySQL software program. That is, the zip file contains 

“instructions” which “permit the functioning of a computer 

system in a manner designed to provide storage, retrieval 

and manipulation of data from such computer system.” ORS 

192.345(15).

In seeking a different result, defendant first argues 

that the terms of ClearBallot’s contract with the county are 

“dispositive of the claimed computer program exemption.” 

Specifically, he argues that, under the terms of ClearBallot’s 

contract with the county, the zip file is “Work Product” and 

not “Licensed Software.”

The difficulty with defendant’s argument is that, in 

spite of the terms of the contract between ClearBallot and 

the county, it is the statutory definition, and not the contract, 

that controls the legal question of whether the zip file falls 

within the statutory exemption for “computer programs” in 

ORS 192.345(15).

Defendant also argues that the zip file falls into 

the statutory exception from the definition of “computer programs” for “[a]nalyses, compilations and other manipulated 

forms of the original data produced by use of the program.” 

ORS 192.345(15)(b). The trouble with that argument is that 

we do not understand the computer instructions in the zip 

file to be either the “original data,” ORS 192.345(15)(a), or a 

“manipulated form[] of the original data produced by use of 

the program,” ORS 192.345(15)(b). Instead, as noted above, 

the trial court found that the zip file contains “computer 

instructions” and that those instructions are, in fact, “distinct from [the] data.” We further note that the data within 

the zip file—as distinct from the database architecture—is 

not subject to the computer program exemption, or to any 

other exemption from disclosure raised by the parties.

Consequently, the trial court did not err in determining that the database architecture, and by extension the 

zip file, is conditionally exempt from public disclosure. We 

turn to whether the public interest nevertheless requires 
10 Washington County v. Sippel

disclosure of the zip file under the circumstances of this 

case. See ORS 192.345.

C. Public Interest

In his fourth assignment of error, defendant contends that, even if one of the three statutory exemptions 

raised in this case applies to the zip file, the trial court erred 

in determining that the public interest does not require disclosure of the zip file. In defendant’s view, an “extraordinary 

public interest” in “determining whether our elections are 

free and fair” outweighs any interest of the county in maintaining the confidentiality of the zip file.

Once a trial court concludes that a conditional 

exemption to the Oregon public records disclosure requirement applies to the record at issue, the

“trial court must determine, as a matter of both law and 

fact, the nature and significance of two competing interests—the public’s interest in disclosure and the public 

body’s interest in confidentiality. Then, the court must balance those competing interests and determine, as a matter 

of law, which interest predominates.”

American Civil Liberties Union v. City of Eugene, 360 Or 269, 

271, 380 P3d 281 (2016). The presumption in favor of disclosure remains when weighing the public’s interest against 

the public body’s interest. In Defense of Animals, 199 Or App 

at 175-76.

With regard to the public’s interest in disclosure, 

generally, under the statutory scheme, that interest is the 

“interest in information about the manner in which public 

business is conducted and the right of the public to monitor what appointed officials are doing on the job.” Id. at 176 

(internal citations and quotation marks omitted). And we 

agree with defendant that the public has some interest in 

disclosure of the zip file in this case.

But we disagree with defendant that the public’s 

interest in disclosure of the zip file is “extraordinary.” The 

record indicates that defendant’s purpose in requesting the 

zip file is to conduct iId. (“Evidence of the purpose for which 

the requestor is seeking the records may be relevant to the 
Cite as 335 Or App 1 (2024) 11

question whether the public interest requires disclosure.”). 

But that interest has already largely been served through 

the disclosure of data about the November 2020 Election in 

Washington County. As the trial court found:

“[Defendant] and other members of the public can and 

have gained access to voter registration records, records 

of accepted and rejected ballots, images of each cast ballot, machine test information, and the cast vote record. 

* * * [Defendant] already has other sources that provide 

the same information for significant portions of the data 

(non-architecture) that is available in [the zip file].”

On the other hand, the county has a compelling 

interest in maintaining the confidentiality of the zip file. 

First, as the trial court found, election systems face a variety of potential threats from malicious actors and public disclosure of the zip file “would reveal features of the system’s 

architecture, such as the names of database objects, that 

would assist an attacker in creating malicious code,” such 

that disclosure of the zip file “would compromise an important layer of the security in the ballot counting process.” 

Moreover, because 15 counties in Oregon use ClearBallot 

software, disclosure of the zip file could put the security of 

elections in many Oregon counties at risk, not just elections 

in Washington County.

Second, the trial court found that ClearBallot “has 

a commercial interest in protecting the design of its []zip 

architecture from competitors,” and that public disclosure 

of the file would allow “its competitors to build a competing 

product without having to make similar investments to create their competing product.” That type of commercial interest in the confidentiality of software—an interest that the 

trial court specifically found was important in this case—is 

one of the reasons that the conditional exemption in ORS 

192.345(15) exists. See, e.g., Exhibit K, Senate Committee 

on Judiciary, SB 219, Apr 2, 1987 (letter of support from City 

of Eugene Information Services Director Randy Kolb) (“If 

we were forced to make the software code public, no vendor 

would sell their products to us and we would be forced to 

create all software ourselves. This would increase costs to 

the public.”).
12 Washington County v. Sippel

For those reasons, we conclude that the county met 

its burden to show that the county’s interest in the confidentiality of the zip file predominates over the public’s interest in disclosure, even when considering the presumption 

in favor of disclosure. Consequently, the trial court did not 

err in determining that the public interest did not require 

disclosure of the zip file in this case.

Affirmed.