Oregon Advisory Opinions August 08, 1968: OAG 68-118 (August 8, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-118
Date: Aug. 8, 1968
Advisory Opinion Text
OAG 68-118.
You state that with increasing use of automatic data processing equipment, or computers, by county elections officials and in the office of the Secretary of State, a record of registered electors and their addresses is often maintained on some type of computer. Such computers have a capability of producing reports on magnetic tape, data processing cards or disc packs and several candidates have requested from some county clerks and your office a record of registered electors as it appears on one of such computer-created records.
You then ask:
"'Would a record on magnetic tape, punch cards or disc pack, be a list of registered electors within the framework of ORS 247.920?'"
ORS 247.920 provides in part:
"(1) The Secretary of State or each of the county clerks, upon receiving a request therefor, shall make available for use by any candidate for public office, political party, political organization or nonprofit public service organization a list of the registered electors of the county and their addresses for the purpose of preparing therefrom lists of registered electors to be used for political purposes. The Secretary of State or the county clerks shall neither make nor collect any charge for making available a list of registered electors under this subsection.
"(2) The Secretary of State or each of the county clerks, upon receiving a request therefor not later than the sixtieth day before a general, special or primary election, shall supply to any major political party, as defined in ORS 248.010, a list of the registered electors of the county
on the sixtieth day before the election and their addresses, arranged in groups according to election precincts. The Secretary of State or county clerks shall make, collect and pay into the state or county treasury a charge for supplying lists of registered electors under this subsection sufficient to cover the additional actual cost thereof to the state or county."
Webster's New International Dictionary, 2d ed., unabridged (1941), defines "list" as:
It has also been said that "the word 'list' means properly a simple series of names, etc., in a brief form * * *." Chiles v. State, (1885) 45 Ark. 143, 147."A roll or catalogue, as of names or items; a register, inventory, or classified record or memorandum; as, a list of books, voters, or real estate; a tax or price list; to be on the sick list * * *."
We see no reason why a record of names of voters on any of the above described computer materials would not be considered a "list" within the meaning of that term as defined, supra. Traditionally, of course, we are accustomed to thinking of a list as a series of items appearing on paper or other matter so as to be immediately understandable when perceived by the human eye. However, the fact that the names of voters are recorded in a manner which would require the assistance of a computer or some other aid to be understandable would not mean that they are not nonetheless, thereby "listed."
If, for instance, the word "list" had been qualified in the statute in some manner (such as "in the English alphabet") as to designate what symbols were required to be used to designate the names of electors so as to be meaningful, there could be a basis for saying that impulses on a magnetic tape, or holes in punch cards, would not constitute part of a "list." Similarly, the statute could have qualified the word "list" by specifying that the same be "printed" and this might preclude the recording of names in the manner you have described from being a "list."
Here, we find that the word "list," as used in ORS 247.920, may include a record of names for use with computers, where a list in such form is requested and a proper election official desires to make the same "available" under subsection (1) or to "supply" the same under subsection (2) of the statute, and your question is therefor answered in the affirmative.
You next state:
"A committee representing a candidate for statewide office made application to my office and to two county elections officials for a list of registered electors on magnetic tape. A magnetic tape record was delivered to the candidate's committee which in turn turned the tapes over to a commercial firm in California, which did prepare for that candidate a mailing of political material to the electors of Oregon. After this was accomplished, the California firm began contacting other Oregon candidates offering them a mailing service from the list of registered electors obtained from this office and from the county clerks through the committee which requested same."
You then ask:
" * * *'Does this commercial firm violate Oregon law when it sells or offers to sell to other candidates and political committees mailings which they generate from the tape record which was not directly received from either this office or from the county clerks?'"
ORS 247.920 (3) provide.:
"No person to whom a list of registered electors is made available or supplied under subsection (1) or (2) of this section and no person who acquires a list of registered electors prepared from such list shall use any information contained therein for commercial purposes."
Here we point out that subsection (1) of the statute does not appear to contemplate that the "list of the registered electors" referred to therein be "delivered" to a candidate or his committee in the sense that the recipient becomes the owner thereof with unlimited right of
possession. Rather, subsection (1) provides that the list shall be "available" to candidates and specified organizations so that the latter may use the same for " preparing therefrom" lists to be used. Under this subsection the county clerks and the Secretary of State would have one "master" list which would upon proper request be made "available" without charge for "preparing" lists. By contrast, subsection (2) provides that the county clerks and Secretary of State, on request, "shall supply " a list of electors to a major political party, and charge for the cost thereof. This different terminology, together with the fact only the major parties may receive the list and that it must be paid for, indicates that the list supplied under subsection (2) becomes the property of the recipient. The requirement in subsection (2) that a request for the list to include electors registered as of "the sixtieth day before the elections," must be made "not later than the sixtieth day" before such election enables election officials to apportion the cost of assembling such lists between the major parties if each makes a timely request for a list.
In answering your question it must first be determined whether or not the California firm to which you refer was, in offering to Oregon candidates a "mailing service" from the list of registered electors obtained under ORS 247.920, using "information contained therein for commercial purposes," within the meaning of the statute. Webster's New International Dictionary, 2d ed., unabridged (1941), defines "commercial" as:
See also City of Anchorage v. Berry, (1956) 145 F. Supp. 868."Of or part. to commerce; mercantile; hence, variously: occupied with commerce; engaged in trade; * * * Having financial profit as the primary aim; * * * "
We assume from the facts you have stated that the California firm offering its "mailing service" is doing so for the purpose of gaining a profit therefrom - in other words, that it is engaged in the business of offering such service for profit rather than through some interest in merely seeking to influence the outcome of Oregon elections.
Under the definition quoted above, it could easily be said that the California firm in question was using the list of registered electors "for commercial purposes." This would especially be so if the firm was making known the fact that it had such information as a means of persuading candidates to utilize its "mailing service."
However, the prohibition contained in ORS 247.920 must be considered in accordance with the purpose it was intended to serve:
"The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained. * * * " Swift & Co. and Armour & Co. v. Peterson, (1951) 192 Or. 97, 108, 233 P.(2d) 216.
The statute was obviously designed to enable candidates and political or civic-minded organizations to have access to the names of electors so that they could promote candidacies and issues in which they were interested. To hold that a firm possessing such a list of electors may not thereafter use it (albeit for profit) on behalf of another candidate would result in a situation where each candidate choosing to utilize the resources of the firm's "mailing service" would be required to provide his own list even though the firm already has the identical information on hand. This would require the preparation of useless duplicate lists by each candidate, serving no useful purpose and placing an unnecessary burden on election officials.
The basic purpose of the statute in prohibiting the use of such lists for "commercial purposes" was doubtless to insure that they would not be used by mercantile organizations for sending "junk mail" to Oregon residents of the familiar type which attempts to promote products and services. It was not intended to inhibit the distribution of bona fide political literature on behalf of political candidates. On the contrary, it is clear that the statute was intended to facilitate such distribution.
The language of the statute supports a conclusion that the legislature intended to distinguish "commercial purposes" as appearing in subsection (3) from "political purposes" as appearing in subsection (1).
The office construed the term "political purposes," as it appears in the statute, in Opinions of the Attorney General, 1958-1960, pp. 232, 233, in part as follows:
"'Every activity encompassing the deciding of issues or adopting of propositions as a part of the democratic process by a vote of the people is in furtherance of and accomplishes a "political purpose" and in the use of these words, such purpose must have been so intended by the legislature.' State ex rel. Corrigan v. Cleveland-Cliffs Iron Co., 152 N.E. (2d) 1, 5."
Within the definition, the firm which is offering its "mailing service" to candidates other than the one to whom the list was originally made available is doing so with a view to using such list for "political purposes." As such, it is not using the list for commercial purposes within the meaning of the particular statute .
Any use of the information contained in the list for business purposes not encompassed within the meaning of the phrase "political purposes" would of course be in violation of the law.
We conclude that a firm which comes into possession of a list of electors prepared by a candidate from a list made available by an Oregon election official under the provisions of ORS 247.920 is not in violation of subsection (3) of the statute when the list is used for the purpose of sending political literature to Oregon electors on behalf of other candidates. Such use would not be "for commercial purposes" within the meaning of the statute.