Category: Rulings & Formal Opinions

Lawyer-client privilege doesn’t apply to pure facts

The Multnomah County district attorney has ordered a public agency, the Portland Development Commission, to release purely factual information gathered by an attorney (the agency had cited attorney-client privilege). If an agency asserts attorney-client privilege to withhold fact-finding reports from the public, you might want to reference this ruling in your appeal.
To read the full district attorney’s order, click on lawyer-client privilege limitation.

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FILED: October 27, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CITY OF PORTLAND, a municipal corporation,

Appellant,

v.

DAVID ANDERSON and THE OREGONIAN,

Respondents.

(99711-09411; CA A101699)

Appeal from Circuit Court, Multnomah County.

Ann Fisher, Judge pro tempore.

Argued and submitted November 30, 1998.

Frank Hudson, Deputy City Attorney, argued the cause for appellant. With him on the briefs was Jeffrey L. Rogers, City Attorney.

Charles F. Hinkle argued the cause for respondents. With him on the brief were David E. Van’t Hof and Stoel Rives LLP.

Before Landau, Presiding Judge, and Deits, Chief Judge, and Brewer,* Judge.

BREWER, J.

Affirmed.

Deits, C. J., concurring.

*Brewer, J., vice Warden, S. J.

BREWER, J.

Plaintiff, City of Portland, appeals from summary judgment in favor of defendants David Anderson and The Oregonian in an action in which plaintiff sought to prevent disclosure of public records. Plaintiff assigns error to the trial court’s grant of defendant’s motion for summary judgment and its denial of plaintiff’s motion for summary judgment. We affirm.

In reviewing the trial court’s grant of summary judgment, we determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or 404, 408-15, 939 P2d 608 (1997). We state the facts in the light most favorable to the party opposing the motion, in this case plaintiff. Double Eagle Golf, Inc. v. City of Portland, 322 Or 604, 606, 910 P2d 1104 (1996).

Defendants sought to review documents pertaining to a disciplinary investigation and action that the Portland Police Bureau (the Bureau) took against Captain John Michael Garvey. Allegations against Garvey included conducting private business on police time, improper use of police telephones, improper use of a police office, and off-duty use of an escort service allegedly involving prostitution. The grand jury returned a not-true bill regarding the prostitution allegations. Garvey was eventually disciplined only for his off-duty involvement with the escort service.

In November 1997, after running several articles detailing the allegations, defendants requested that the Multnomah County District Attorney direct plaintiff to disclose the records of the investigation and discipline pursuant to ORS 192.490(1). The district attorney did so, and plaintiff petitioned the Multnomah County Circuit Court to reverse that decision. The court granted summary judgment for defendants and ordered plaintiff to disclose the transcripts of Garvey’s interviews, an analysis of the allegations and determination of whether they were sustained, a summary the city relied upon to dispose of the matter, a letter to Garvey from the police chief outlining the sanctions imposed, a grievance Garvey filed against the Bureau, and a letter describing modified sanctions.

On appeal, plaintiff argues that the trial court erred, because the records were exempt from disclosure under the “personnel discipline actions” and “information of a personal nature” exceptions to the public records law. ORS 192.501(12); ORS 192.502(2). We address each claim of exemption in turn.

The general rule in Oregon with respect to public records favors disclosure. ORS 192.420 (“Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided * * *.”); MacEwan v. Holm et al, 226 Or 27, 48, 359 P2d 413 (1961) (records should be “subject to inspection unless there are circumstances justifying nondisclosure”). However, “[t]he agency initially and the courts ultimately * * * determine” whether disclosure is required if an exemption applies. Jordan v. MVD, 308 Or 433, 440, 781 P2d 1203 (1989).

We first determine whether the requested material constitutes “personnel discipline” records within the meaning of ORS 192.501(12), which exempts from disclosure records of “[a] personnel discipline action, or materials or documents supporting that action.” Plaintiff bears the burden of showing that the records fit into the exemption, which is to be narrowly construed. Oregonian Publishing v. Portland School Dist. No. 1J, 144 Or App 180, 184, 925 P2d 591 (1996), adhered to as mod 152 Or App 135, 952 P2d 66 (1998), aff’d on other grounds ___ Or ___, ___ P2d ___ (October 7, 1999). The Oregon Supreme Court has determined that “personnel discipline” does not refer to “the entire process from the initial question or complaint through a final conclusion.” City of Portland v. Rice, 308 Or 118, 122, 775 P2d 1371 (1989). Instead, it means “the completed process and the sanction of discipline imposed upon a public employee.” Id. at 123. Here, the records contain limited investigatory material about several allegations, not all of which resulted in a sanction. Those records that do not relate to conduct that resulted in disciplinary sanctions do not qualify for exemption.(1) Id. at 124 (no exemption for police bureau investigatory records “which did not result in any disciplinary sanction”). However, all of the documents relating to allegations for which the Bureau actually disciplined Garvey do fall within the ORS 192.501(12) exemption.

Nevertheless, the exemption does not apply if the “public interest requires disclosure in the particular instance.” ORS 192.501. Because the records of allegations ultimately resulting in discipline fall into an exempt category, defendants must demonstrate that disclosure is in the public interest. Plaintiff urges us to shield from disclosure the materials pertaining to the off-duty allegations, because the conduct involved was “non-criminal”–a conclusion it apparently draws from the fact that the grand jury declined to indict Garvey on prostitution charges, as well as from the fact that patronizing an escort service is not per se illegal. We decline to do so.

Garvey is a high ranking police officer. The public has a legitimate interest in confirming his integrity and his ability to enforce the law evenhandedly. The police investigation that resulted in discipline concluded that Garvey had engaged in sexual conduct through an escort service that may serve as a front for prostitution. That information bears materially on his integrity and on the risk that its compromise could affect the administration of his duties. We conclude that the public interest compels disclosure and that ORS 192.501(12) does not apply to this case.(2)

Plaintiff next argues that the trial court erred in not withholding the records under ORS 192.502(2), which exempts from disclosure

“[i]nformation of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance.”
The personal interest exemption

“requires answers to three questions–whether the information is of a personal nature, whether disclosure unreasonably invades privacy, and whether the public interest nonetheless requires disclosure. The first and second questions must be answered affirmatively as a threshold matter in order to make relevant the remaining question * * *.” Jordan, 308 Or at 440.
The party seeking disclosure bears the burden of proof by a preponderance of the evidence on the first two questions. Guard Publishing Co. v. Lane County School Dist., 310 Or 32, 38, 791 P2d 854 (1990). If the answer to both questions is “yes,” the party seeking disclosure must show, by clear and convincing evidence, that the public interest nonetheless demands disclosure. Id.

Plaintiff first argues that the records pertaining to Garvey’s off-duty sexual conduct are personal in nature. The statutory term, “information of a personal nature” has an ordinary, generic meaning. Jordan, 308 Or at 441. In Jordan, the Supreme Court embraced the following dictionary definitions:

“Webster’s Third New International Dictionary, at 1686 (Unabridged 1971), defines ‘personal’ as meaning ’1: of or relating to a particular person: affecting one individual or each of many individuals: peculiar or proper to private concerns: not public or general * * * (personal baggage): * * * 6: exclusively for a given individual (a personal letter) * * *.’” Id. (Emphasis in original.)
The court held that a vehicle owner’s address in the Motor Vehicle Division’s records constituted information of a personal nature. In spite of the fact that the information was contained in a public record containing over two million such entries, the court nonetheless concluded that MVD could determine that it was of a personal nature because it was information specific to one individual. The court also held that the first question under ORS 192.502(2) does not focus on whether the information should be protected as private; rather, we merely inquire whether the records sought fall within the “generic definition” of personal information. Id.

As we have already observed, the records in this case, although relating to a specific individual, also have a bearing on his qualification to serve in a position of public trust. The tension between individually specific information and its reflection on matters of public concern is also present in the dictionary definition of the word “personal” endorsed by the court in Jordan. On the one hand, “personal” means “relating” to a particular person. On the other hand, “personal” means “peculiar or proper to private concerns: not public or general.” Although the disputed records in this case pertain specifically to Garvey, they do not affect him exclusively and are not peculiar to his private concerns. We therefore conclude that they do not constitute information of a personal nature.

However, even if the records sought did constitute personal information, their disclosure would not unreasonably invade individual privacy. The implications of Garvey’s conduct transcend his claim to privacy. By imposing a disciplinary penalty against him for that conduct, plaintiff has already determined that Garvey’s conduct is relevant to his position in the Portland Police Bureau. In that respect, this case shares significant factual elements with Oregonian Publishing.(3) There, the personal information exemption was held inapplicable to a personnel investigation into alleged employee theft and misuse of school property, because disclosure did not unreasonably invade the employees’ privacy. 144 Or App at 187-88.(4) No criminal charges were filed and the employees were disciplined internally. Id. at 182. Although the court’s decision did not disclose whether the misconduct occurred on or off duty, that factual distinction alone does not dictate whether disclosure would constitute an unreasonable invasion of privacy. Here, as in Oregonian Publishing, the conduct involved directly bears on the possible compromise of a public official’s integrity in the context of his public employment. Therefore, any invasion of privacy that would result from disclosure is not unreasonable. For each of the foregoing reasons, the exemption provided by ORS 192.502(2) is inapplicable to this case.

The trial court did not err in granting defendants’ motion for summary judgment and in denying plaintiff’s motion for summary judgment. Defendants were entitled to judgment as a matter of law.

Affirmed.

DEITS, C. J., concurring.

I agree with the majority’s holding, and I agree with its conclusion that the public interest in disclosure of the personnel discipline records in this case takes them out of the exemption provided by ORS 192.501(12). Specifically, I concur in the majority’s view that the public has a legitimate interest in the integrity of a police officer of Captain Garvey’s rank and that the matters involved in the disciplinary action bear on that interest.

I write this concurrence to emphasize a point that the majority touches on obliquely but does not spell out. Plaintiff’s argument concerning the absence of the requisite public interest in the off-duty activities in question might be well taken if it were not for the public significance of Garvey’s position. Although not an elected official, Garvey has assumed a high-ranking law enforcement position that requires a substantial level of public confidence and trust. Given the nature of Garvey’s governmental role, I join the majority in concluding that the situation here bridges the gap–if barely–between public notoriety or curiosity about the off-duty activities of a government employee and the kind of “public interest” that the statute contemplates.

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1. Plaintiff asserts in its opening brief that it has released all documents ordered disclosed except those related to the off-duty sexual conduct for which Garvey was disciplined. However, defendants correctly point out that the records ordered disclosed are not limited to those relating to the off-duty sexual conduct. Defendants contend they have no way of knowing what information is contained in the records reviewed in camera by the trial court and that it ordered disclosed.

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2. This case is before us on cross-motions for summary judgment. In its opening brief, plaintiff asserts that there are no genuine issues of material fact. Plaintiff then contends in its reply brief that there is an issue of material fact: namely, whether Garvey engaged in “serious or criminal misconduct.” The serious nature and implications of the allegations, together with the fact that they resulted in discipline, are decisive in this case. The outcome does not depend on whether Garvey actually engaged in “serious or criminal mischief.” Therefore, there is no genuine issue of material fact in dispute.

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3. The Supreme Court affirmed our decision in Oregonian Publishing, reasoning that the content of the records involved a generalized investigation into employee theft, not individual personnel, and therefore the personnel file exemptions of ORS 342.850(8) and ORS 192.502(9) did not apply. ___ Or at ___. The court did not reach the ORS 192.502(2) or ORS 192.501(12) exemptions. Because the Supreme Court’s analysis in Oregonian Publishing did not call our analysis of those exemptions in that case into question, we adhere to that reasoning. See, e.g., McLean v. Buck Medical Services, Inc., 157 Or App 563, 576, 971 P2d 462 (1998), rev allowed 328 Or 594 (1999).

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4. We also concluded that the records did not constitute information of a personal nature. Oregonian Publishing, 144 Or App at 188.

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Related posts:

1. Oregon Supreme Court grants access to Portland School District records of alleged employee theft
2. Appeals Court rules prisoner execution preparations are public under Constitution

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Filed: October 7, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

OREGONIAN PUBLISHING COMPANY, an
Oregon corporation, doing business
under the assumed business name of
The Oregonian; and ERIN HOOVER SCHRAW,

Respondents on Review,

v.

PORTLAND SCHOOL DISTRICT NO. 1J,

Petitioner on Review.

(CC 9308-05795; CA A83594; SC S45020)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 14, 1998.

James N. Westwood, of Miller, Nash, Wiener, Hager & Carlsen LLP, Portland, argued the cause on behalf of petitioner on review. With him on the petition and brief on the merits was Bruce L. Campbell.

Charles F. Hinkle, of Stoel Rives LLP, Portland, argued the cause and filed the response on behalf of respondents on review. With him on the brief on the merits was Per A. Ramfjord.

Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General, Salem, filed a brief on behalf of amicus curiae Oregon Attorney General.

Monica A. Smith, of Smith, Gamson, Diamond & Olney, Portland, filed a brief on behalf of amici curiae Portland Association of Teachers, Oregon Education Association, and National Education Association.

KULONGOSKI, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

* Appeal from Multnomah County Circuit Court,

Ancer L. Haggerty, Judge, and Charles H. Turner,

Judge Pro Tempore.
(keywords for search: school discipline records investigation theft property personnel action)

144 Or App 180, 925 P2d 591 (1996), modified and adhered to 152 Or App 135, 952 P2d 66 (1998).

KULONGOSKI, J.

Plaintiffs Oregonian Publishing Company (Oregonian Publishing) and its employee, reporter Erin Hoover Schraw, filed this action for injunctive relief seeking to compel defendant Portland School District No. 1J (the district) to release as public records several documents relating to an investigation of alleged misuse and theft of school property by district employees. The circuit court ordered release of two of the documents sought by plaintiffs. Defendant appealed, and the Court of Appeals affirmed. Defendant released one of the two documents, but sought review of the Court of Appeals’ decision regarding the other document. We allowed review and now affirm on other grounds the decision of the Court of Appeals.

We take the following undisputed facts from the Court of Appeals’ original and modified opinions and from the record. In early 1993, Ross, the campus monitor at Benson High School, notified McElroy, deputy superintendent of the district, that Ross and several other Benson High School employees had participated in misuse and theft of school property. McElroy asked the Portland School Police, an agency organized under ORS 332.531,(1) to investigate the matter. Sergeant Leedom of the school police conducted the investigation. After interviewing a number of district employees, Leedom prepared a report entitled “Personnel Investigation,” describing problems with control of school property at Benson High School. That report is the subject of this opinion.

The report was delivered to McElroy, who retained it in a file in his office while the district school board reviewed the matter.(2) Ultimately, the district resolved the matter internally. Three employees ended their employment with the district. One of the employees, Parr, the principal of Benson High School, retired and sent a letter to Benson High School faculty and staff announcing his retirement. That letter was quoted at length a few days later in The Oregonian, a newspaper owned by Oregonian Publishing.

A reporter for The Oregonian subsequently telephoned the district and made a request under the public records law to review “[a]ll records contained in the Portland School Police investigation of the misuse of district property by [district employees].” The district refused to release the requested records, claiming that they pertained to a confidential personnel matter and thus were exempt from disclosure under former ORS 192.502(8) (1995)(3) and former ORS 342.850(7) (1995),(4) renumbered as ORS 192.502(9) (1997) and ORS 342.850(8) (1997), respectively.

Pursuant to ORS 192.450 and ORS 192.460, Oregonian Publishing requested that the Multnomah County district attorney review the disputed public records and determine whether they were exempt from disclosure requirements under the public records law. The district attorney reviewed the records and determined that they were exempt from disclosure under ORS 192.502(9) and ORS 342.850(8) as records in a personnel file.

Oregonian Publishing then filed this action for injunctive relief, seeking to compel the district to release the documents in its possession relating to the investigation of alleged misuse and theft of school property by district employees. The circuit court ordered the release of two of those documents, reasoning that Parr’s letter announcing his retirement had been circulated widely and therefore was not exempt from disclosure, and that the district had waived any exemption it might have had for the school police investigation report. The circuit court also ruled that the other documents requested by Oregonian Publishing were exempt from disclosure under the public records law. The district appealed, and the Court of Appeals affirmed. Oregonian Publishing v. Portland School Dist. No. 1J, 144 Or App 180, 925 P2d 591 (1996), modified and adhered to 152 Or App 135, 952 P2d 66 (1998).

After the Court of Appeals affirmed the judgment of the circuit court, the district released Parr’s letter. The district then petitioned for review of the Court of Appeals’ decision that the investigation report was not exempt from disclosure. On review, the district contends that the Court of Appeals adopted an inappropriately broad waiver standard that alters the nature of public records law exemptions and that, under an appropriate waiver standard, it did not waive the statutory exemption for documents in a personnel file under ORS 192.502(9) and ORS 342.850(8). The district further asserts that, because it placed the investigation report in a personnel file, the report is exempt from disclosure under ORS 192.502(9) and ORS 342.850(8). On review, we do not reach the issue of waiver because we hold that the investigation report prepared by the school police is not exempt from disclosure under ORS 192.502(9) and ORS 342.850(8).

Oregon has a long-standing policy in favor of access to public records. The general statement of legislative policy regarding public records has remained virtually unchanged for almost 140 years. An 1862 law originally granted Oregon citizens the statutory right to “inspect any public writing of this state, except as otherwise expressly provided by this code or some other statute.” General Laws of Oregon, ch 8, § 707, p 326 (Deady 1845-1864). Although the 1909 legislature limited that right to persons having “a lawful purpose,” Or Laws 1909, ch 98, the legislature deleted that restriction 52 years later and restored the general right to inspect any public record, subject to certain statutory exemptions, Or Laws 1961, ch 160, § 4. The Oregon legislature made a structural revision of public records law in 1973, gathering records statutes into ORS Chapter 192 and organizing the basic structure of the public records law as it is today. The current statement of legislative policy regarding public records, ORS 192.420, provides that “[e]very person has a right to inspect any public record * * * except as otherwise expressly provided by ORS 192.501 to 192.505.” A public record “includes any writing containing information relating to the conduct of the public’s business * * * prepared, owned, used or retained by a public body regardless of physical form or characteristics.” ORS 192.410(4).

The 1987 legislature adopted a “catchall exemption” in former ORS 192.502(8) (1987), renumbered as ORS 192.502(9) (1997), as a replacement for former ORS 192.500(2)(h) (1985). Or Laws 1987, ch 764, § 1; Or Laws 1987, ch 898, § 26; Attorney General’s Public Records and Meetings Manual, 36-38 (1989). ORS 192.500(2)(h) (1985) exempted from disclosure “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under * * * ORS 342.850 * * *.” ORS 192.500(2)(h) (1985) attempted to list every statute outside the public records law that in any way prohibited or restricted disclosure of public records. In addition to ORS 342.850, ORS 192.500(2)(h) (1985) listed more than 60 individual statutes and chapters in the Oregon Revised Statutes, but was difficult to maintain as a comprehensive list because the legislature amended, added, and repealed laws affecting the disclosure of public records during each legislative session. The replacement for ORS 192.500(2)(h) (1985), former ORS 192.502(8) (1987), renumbered as ORS 192.502(9) (1997), exempts from disclosure under the public records law “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.”

“When the legislature adopts an exemption to disclosure of public records * * * [o]ur task * * * is to determine and declare the legislature’s meaning in the exemption adopted.” City of Portland v. Rice, 308 Or 118, 122, 775 P2d 1371 (1989); see also PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (“In interpreting a statute, this court’s task is to discern the intent of the legislature.”). Our first step in discerning that intent is to examine the text and context of the statute. Id. at 610-11. When a statute does not define a word or term, we give that word or term its plain, natural, and ordinary meaning. Id. at 611. Context includes “other provisions of the same statute and other related statutes,” id., as well as relevant judicial construction of those statutes. See Owens v. Maass, 323 Or 430, 435, 918 P2d 808 (1996) (context includes judicial construction of earlier versions of relevant statutes). If our analysis of those sources discloses the legislature’s intent, we proceed no further. PGE, 317 Or at 611.

ORS 342.850, which deals exclusively with public school teacher evaluations and personnel files, provides, in part:

“(8) The personnel file shall be open for inspection by the teacher, the teacher’s designees and the district school board and its designees. District school boards shall adopt rules governing access to personnel files, including rules specifying whom school officials may designate to inspect personnel files.”

ORS 342.850(8) does two things. First, it explicitly guarantees that certain people (the teacher, the district school board, and the designees of each) have the right to inspect teacher personnel files. Second, it explicitly requires the district to adopt rules governing access to teacher personnel files. Acting pursuant to the authority delegated in ORS 342.850(8), the district adopted rules restricting the public’s access to the district’s personnel files. Teacher personnel files thus fall within the ambit of the “catchall exemption” to the public records law in ORS 192.502(9).

The district argues that it may keep the investigation report from public view by placing that public record in a personnel file and claiming an absolute exemption for the report under ORS 342.850(8) and ORS 192.502(9) based on the report’s location, rather than its content. The resolution of that issue determines the outcome of this case.

ORS 342.850 neither explicitly defines the term “personnel file” nor does it list the appropriate contents of such a file.(5) Accordingly, we rely on the plain, natural, and ordinary meanings of the words “personnel” and “file” to determine the meaning of the statutory term “personnel file.”

The word “personnel” means “persons of a particular (as professional or occupational) group” or “a body of persons employed in some service.” Webster’s Third New Int’l Dictionary, 1687 (unabridged ed 1993). The word “file” has two meanings relevant to this case: “a container in which papers are kept” (e.g., a folder or a metal cabinet); and “a collection of cards or papers usu[ally] arranged or classified” (i.e., the collection of papers residing in such a container). Id. at 849. Thus, a “personnel file” is a container for papers arranged or classified as to a person in a particular group or employment category, or a collection of such papers in such a container. Those definitions accord with our understanding of the term “personnel file” as it is commonly used. Both meanings are significant here.

The district has the authority to compile and maintain such files as are necessary to perform its statutory obligation under ORS 332.505(1)(b) to “[e]mploy personnel, including teachers and administrators, necessary to carry out the duties and powers of the board and fix the duties, terms and conditions of employment * * *.” Such “personnel files” would usually include information about a teacher’s education and qualifications for employment, job performance, evaluations, disciplinary matters or other information useful in making employment decisions regarding an employee.(6) The grant of rulemaking authority to the district contained in ORS 342.850(8) allows the district to adopt rules governing access to the containers of “personnel files.” ORS 342.850(8) also allows the district to control access to the records stored in each such container, because controlling access to the container itself would have no meaning without the authority to control access to the collection of papers in the container.

ORS 342.850(8) does not, however, authorize the district to exempt a public record from disclosure by placing it in a district personnel file and claiming an exemption based on the report’s title or location, rather than its content. In light of the “strong and enduring policy that public records and governmental activities be open to the public,” noted by this court in Jordan v. MVD, 308 Or 433, 438, 781 P2d 1203 (1989), and in other cases, the legislature clearly did not intend such a result. This court stated in Guard Publishing Co. v. Lane County School Dist., 310 Or 32, 39, 791 P2d 854 (1990):

“A public body may not exempt itself from its responsibilities under the Inspection of Public Records law by adopting a policy that seeks to deprive citizens of their right under the law to inspect public records. Disclosure is the norm; exclusion is the exception that must be justified by the public body.”

The report at issue in this case resulted from Deputy Superintendent McElroy’s request that the school police investigate allegations that Benson High School staff had stolen or otherwise misappropriated school district property. That is a matter of paramount public interest and concern. Although the title of the investigation report is “Personnel Investigation,” the subject noted in the heading of the report is “Misuse and Theft of School District Property,” without any reference to any individual school district employee. The focus of the report is the general “atmosphere” at Benson High School regarding school district property, with documentation and discussion of misuse and theft of such property by several school district employees. The investigation report also discusses the policies in place at the school regarding donated and surplus property, and the need for improvement regarding those policies and their enforcement by the school district.

Testimony by school police officers at trial indicated that, although school police routinely handle what are called “personnel investigations,” the school police do not write personnel evaluations of school district employees, nor are they familiar with the personnel evaluation procedures followed by the district. The recommendation at the close of the report concerns the adoption of new policies and more stringent inventory controls at Benson High School.

The investigation report does not address an individual school district employee’s terms and conditions of employment; neither does it recommend any employment decision regarding the individual school district employees who were the subject of the investigation.(7) The district cannot restrict access to public records simply by placing the records in a personnel file or using a label, such as “Personnel Investigation,” for those records. We conclude that the school district must disclose the investigation report because it is not exempt from disclosure under ORS 342.850(8) and ORS 192.502(9) either as part of a personnel file or because it is labeled “Personnel Investigation.”

For the reasons stated above, the investigation report at issue here is not the type of document that the legislature intended to exempt from disclosure as part of a teacher personnel file. The circuit court did not err in ordering the district to release the investigation report to Oregonian Publishing.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

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1. ORS 332.531(1) provides, in part:

“The district school board of any school district may establish a law enforcement agency and employ such personnel as may be necessary to insure * * * the security of the real and personal property owned, controlled or used by or on behalf of the school district.”

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2. McElroy discussed the subject matter of the report with the Multnomah County district attorney, who declined to investigate whether criminal charges should be filed against any district employee.

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3. Former ORS 192.502 (1995) provided, in part:

“The following public records are exempt from disclosure under ORS 192.410 to 192.505:

“* * * * *

“(8) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.”

The wording of that section remained the same when it was renumbered as ORS 192.502(9) in 1997. Or Laws 1997, ch 825, § 1. Except as where otherwise noted, we refer to the current numbering of the statute, ORS 192.502(9), throughout this opinion.

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4. Former ORS 342.850(7) (1995) provided:

“The personnel file shall be open for inspection by the teacher, the teacher’s designees and the district school board and its designees. District school boards shall adopt rules governing access to personnel files, including rules specifying whom school officials may designate to inspect personnel files.”

The wording of that section remained the same when it was renumbered as ORS 342.850(8) in 1997. Or Laws 1997, ch 864, § 9. Except as otherwise noted, we refer to the current numbering of the statute, ORS 342.850(8), throughout this opinion.

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5. Neither do the district regulations. District Regulation 5.20.110(1) suggests general categories of personnel file documents, such as “records * * * which relate to * * * character, personal history, scholarship, school reports, and other data of a confidential nature * * *.”

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6. We also have considered the wording of statutes that at least arguably are contextual to those we construe today, ORS 351.065 and ORS 353.260. See PGE, 317 Or at 611 (first level of analysis of legislative intent behind statute includes wording of contextual statutes). We have found no contextual statute that detracts from our construction of ORS 192.502(9) and ORS 342.850(8).

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7. In noting the absence of such material, we do not mean to suggest that inclusion in the report of personnel action recommendations, whether volunteered by Leedom or sought by McElroy, necessarily would change the result we announce today.

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