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Appeals Court rules prisoner execution preparations are public under Constitution
Court rules preparations for prisoner executions are public
FILED: September 9, 1998
IN THE COURT OF APPEALS OF THE STATE OF OREGON
OREGON NEWSPAPER PUBLISHERS
ASSOCIATION, a not for profit
association, J. LEROY YORGASON,
its President, WILLAMETTE VALLEY
CHAPTER OF SOCIETY OF PROFESSIONAL
JOURNALISTS, a not for profit
society of journalists, ROB
PRIEWE, chapter President, THE
ASSOCIATED PRESS, a not for profit
news cooperative, ELAINE NORTON
HOOKER, its Chief of Bureau for
Portland, Oregon, THE OREGON
PUBLISHING COMPANY, an Oregon
corporation, THE OREGON
ASSOCIATION OF BROADCASTERS, a
non-profit association, BILL
JOHNSTONE, its executive director,
THE STATESMAN JOURNAL, a daily
newspaper published in Salem,
Oregon, and JULIA WALLACE, its
Executive Editor,
Petitioners,
v.
DEPARTMENT OF CORRECTIONS
and STATE OF OREGON,
Respondents.
(CA A97110)
Judicial Review of Department of Corrections Administrative Rules.
Argued and submitted May 15, 1998.
Les Swanson, Jr., argued the cause and filed the briefs for petitioners.
Robert M. Atkinson, Assistant Attorney General, argued the cause for respondents. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before Edmonds, Presiding Judge, and Armstrong, Judge, and Warden, Senior Judge.
EDMONDS, P. J.
Rules held valid.
EDMONDS, P. J.
Petitioners raise constitutional challenges to OAR 291-024-0017(2)(b), (c) and (e), OAR 291-024-0020(3)(d)(D), OAR 291-024-0065, OAR 291-024-0070 and OAR 291-024-0080, all of which were promulgated by the Department of Corrections (Department) on February 7, 1997, regarding the witnessing of executions of prison inmates. Petitioners contend that the rules violate Article I, section 8, and Article I, section 10, of the Oregon Constitution and the First and Fourteenth Amendment to the United States Constitution. We affirm.
Petitioners attack the constitutionality of the rules pursuant to ORS 183.400.(1) Under that statute, our review is limited to whether the rules violate the state and federal constitutions on their face. AFSCME Local 2623 v. Dept of Corrections, 315 Or 74, 79, 843 P2d 409 (1992).(2)
I. THE RIGHT TO VIEW PRE-EXECUTION PROCEDURES
We first address petitioners’ claim that they have a right to view procedures that occur during the preparation for an inmate’s execution. In essence, OAR 291-024-0065, OAR 291-024-0070 and OAR 291-024-0080 prevent all witnesses from viewing the inmate until after the inmate is strapped down and the intravenous catheter, through which the death-causing drugs will be administered, has been inserted. We address plaintiffs’ state constitutional claims first and then their federal constitutional claims.
Article I, section 10, of the Oregon Constitution provides, in part, that, “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay.” (Emphasis supplied.) The phrase “justice shall be administered” has been interpreted by the Supreme Court to be limited to “adjudications.” In Oregonian Publishing Co. v. O’Leary, 303 Or 297, 303, 736 P2d 173 (1987), the court explained that “[t]he primary limitation on the scope of section 10 is that it is directed only at adjudications. To the extent that adjudications are not involved, the administration of justice is not governed by it.” (Emphasis supplied.) The parties also agree that the threshold issue in this case is whether the execution of an inmate is an “adjudication” within the meaning of section 10.
The state argues that “adjudications” are limited to judicial proceedings and actions by judges. It asserts that because an execution of an inmate is not a judicial proceeding, it cannot be an “adjudication.” On the other hand, petitioners assert that “[t]he ultimate adjudication issued by an Oregon Court is the judgment of death.” They explain:
“An adjudication of death is not complete until death occurs, and the fact that the execution of the judgment of death occurs after the judgment of death is pronounced, does not insulate this single most powerful act that the state is authorized to perform from the open administration of justice provision of Article I, section 10, of the Oregon Constitution.”
The issue necessarily turns on the definition of “adjudication” for purposes of section 10.
There are a number of cases that have interpreted the clause “justice shall be administered, openly and without purchase, completely and without delay.” One of the earlier cases is State v. Endsley, 214 Or 537, 546, 331 P2d 338 (1958). In that case, the court limited section 10 issues to those “adjudicated in a circuit court.” Id. In State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284, 613 P2d 23 (1980), the court held that Article I, section 10, guarantees a right of access to the public to most judicial proceedings. It explained, however, that section 10 does not guarantee access to all judicial proceedings; for example, jury deliberations have historically been closed to the public. The holding in Deiz illustrates that not all proceedings that occur in a court are “adjudications” in the sense contemplated by section 10. In Oregonian Publishing Co., the plaintiff newspaper sought access to a summary hearing in a murder trial regarding whether a witness who refused to testify on the ground that he would incriminate himself could be compelled to testify. Pursuant to a statute, the defendant trial judge ruled that the hearing was closed to the public. The court noted that, although section 10 is absolute in its terms, not every proceeding involving the administration of justice is required to be open to public scrutiny. The court said that, “[t]he primary limitation on the scope of section 10 is that it is directed only at adjudications. To the extent that adjudications are not involved, the administration of justice is not governed by it.” 303 Or at 303. The court then reasoned that because a fundamental function of a court is to determine legal rights based on the presentation of evidence and argument, the legal determination required by the statute at issue constituted an “adjudication” within the meaning of section 10. Id.
In State v. Wagner, 305 Or 115, 146, 752 P2d 1136 (1988), vacated on other grounds 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), rev’d in part on other grounds 309 Or 5, 786 P2d 93, cert den 498 US 879, 111 S Ct 212, 112 L Ed 2d 171 (1990), the defendant argued that the death penalty violated section 10 “because it is incompatible with the concept of complete justice.” In response, the court pointed out that the death penalty statutes were adopted by an overwhelming majority of Oregon voters and held that the administration of “justice” required by section 10 is served “[i]f defendant received a trial and sentence according to those and other applicable laws.” Although the issue in this case was not directly before the Wagner court, its refusal to extend section 10 protection beyond the trial and sentencing proceedings is instructive. In another case involving the death penalty, the court, relying on Wagner, held that Article I, section 10, does not mandate that post-conviction proceedings be litigated to a conclusion before a death penalty sentence could be executed. Bryant v. Thompson, 324 Or 141, 147, 922 P2d 1219 (1996). Finally, in Flowers v. Board of Parole, 124 Or App 331, 334-35, 862 P2d 1312 (1993), rev den 318 Or 325 (1994), we refused to extend the protection of section 10 to a parole board hearing because it was an administrative proceeding and not a hearing in a court of law.(3)
The case law confining section 10 protection to those proceedings in courts in which legal rights are determined based on a presentation of evidence and argument is consistent with the history underlying Article I, section 10. Section 10 has its origin in Article 40 of the Magna Carta (1215), and Lord Edward Coke’s discussion of the Magna Carta in The Second Part of the Institutes of the Lawes of England (1642) (Second Institutes), which were written to reform corruption in the common law courts. During that historical period, the King and his ministers would consult with judges on pending cases and exert political pressure on them that interfered with the integrity of the adjudicatory process. Bryant, 324 Or at 147-48. See also Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1279 (1995) (discussing the historical roots of Article I, section 10). There is no suggestion that Coke was concerned with subsequent events that took place pursuant to court orders but outside the court.
As we have indicated, the case law pertaining to and the history of section 10 do not support petitioners’ argument that the execution process is an adjudicatory proceeding within the meaning of section 10. An execution does not involve a determination of a legal right based on the presentation of evidence and argument. There is another reason why petitioners’ argument is not well taken that is self-evident. The execution of a prison inmate is not carried out by the judicial branch of government. Rather, it is a function of the executive branch of government. As indicated, all of the cases that have addressed the meaning of the phrase “justice shall be administered” in section 10 have consistently limited its applications and adjudications to judicial functions. For all of these reasons, we conclude that an execution is not an “adjudication” and that, therefore, petitioners do not have a right under section 10 to view the procedures leading up to an inmate’s execution.
Petitioners also contend that Article I, section 8, of the Oregon Constitution implicitly guarantees them the right to view the procedures leading up to an inmate’s execution. Article I, section 8, of the Oregon Constitution, provides that, “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.” Petitioners do not cite to any Oregon appellate case in which Article I, section 8, has been interpreted to encompass the right of public access to a government activity.(4) Instead, they rely on case law where the issue was whether the First Amendment provides a right of access for the media and the public to attend procedures occurring in criminal trials. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 US 555, 100 S Ct 2814, 65 L Ed 2d 973 (1980).
In Richmond Newspapers, the issue was whether the trial court erred when it excluded the media from pretrial hearings. The court reasoned that criminal trials were historically open to the public and that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Id. at 573. The court explained that, “[t]he right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press.” Id. at 577. Nonetheless, it acknowledged that the right to access to criminal trials is not expressly provided for in the First Amendment. Id. at 579. However, it reasoned:
“Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. * * *
“We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.’” Id. at 580-81 (footnote omitted) (quoting Branzburg v. Hayes, 408 US 665, 681, 92 S Ct 2646, 33 L Ed 2d 626 (1972)).
Relying on the above language, petitioners assert that the language in Article I, section 8, is “stronger and more inclusive” than the language of the First Amendment, and, thus, it follows that Article I, section 8, must be interpreted to include public access to executions, including the pre-execution procedures. We disagree with petitioners’ argument. First, the language in Article I, section 8, provides that “[n]o law shall be passed restraining the free expression of opinion.” There is nothing in the language of section 8 that expressly provides support for petitioners’ argument. Thus, their argument hinges on interpreting section 8, to provide for an “implicit” right to access to government activities and involves an additional step in logic. Not only must petitioners demonstrate that the right of access to government activities is part of section 8, but they must also show that such a right extends beyond trial court proceedings to the kinds of events they desire to witness.
Petitioners’ premise that Article I, section 8, is to be interpreted more expansively than its First Amendment counterpart regarding access to public trials is incorrect. The framers of the Oregon Constitution provided separately for a right to public trials in Article I, section 10, which provides that “[n]o court shall be secret.” During the debates leading up to the formation of the Oregon Constitution, the framers discussed the federal bill of rights and how they should be incorporated into the Oregon Constitution. One constitutional delegate expressed his views as follows:
“Believing, as I do, that these declarations, thus solemnly made by a convention and ratified by the people, will always not only command universal respect, but the attention of courts, I desire that such a bill may precede or become a part of our constitution. It is a sort of manual — a sort of textbook of weighty matters, placed there multum in parvo * * *. They are there in monosyllables; and although individuals of common capacity, or of ordinary pursuits, may not be regarded as expounders of the constitutional law, yet the doctrine is contained, the declarations embodied in that bill of rights, and the meanest capacity can understand them. * * *
“For these reasons, then, I am in favor of all the essential principles of a bill of rights. The question, then, seems to be, how they shall be put in. I am in favor of having them embodied in a separate clause by themselves, for the reason that they are more easily referred to. They can be more evidently set forth by a separate and distinct article. * * *
“* * * * *
“Now, I propose to avoid the first causes of this confusion. I propose to put under the head of legislative department whatever restricts that department, and my form shall be this: The legislature shall not have power to pass a law upon this question or that question, so that when a man wishes to know what power is taken from the legislature he can see it in plain and express terms, and there can be no difficulty in understanding them.” Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 101-03 (1926) (emphasis supplied).
The format of the Oregon Constitution is a reflection of that expression. Article I’s Bill of Rights as originally adopted contained more than 30 sections. In contrast, the Richmond Newspaper court provided for a right to access to criminal trials through the First Amendment after deciding that there were no other express provisions in the federal bill of rights that provided for such access. The court examined the history underlying modern criminal trial procedure. It traced the roots of the court system back to England before the Norman Conquest and noted that local courts at that time “were attended by the freemen of the community.” The court explained that “[s]omewhat like modern jury duty, attendance at these early meetings was compulsory on the part of the freemen, who were called upon to render judgment.” The court also relied on Lord Edward Coke’s Institutes of the Laws of England in which Coke said: “These words [In curia Domini Regis] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King’s Courts openly in the King’s Courts, whither all persons may resort.” Richmond Newspaper, 448 US at 565 n 6 (quoting 2 E. Coke, Institutes of the Laws of England 103 (6th ed 1681)). The court concluded that “the historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open.” Id. at 569. As the court proceeded in its analysis in Richmond, it noted that it was important not to read into the Constitution rights not explicitly defined. Nonetheless, it said, “the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees.” Id. at 579. It then concluded the historical right to attend trials is an implicit right within the guarantees of the First Amendment because “without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.’” Id. at 580 (quoting Branzburg, 408 US at 681). Thus, the impetus for the Richmond court’s decision to provide an implicit guarantee in the First Amendment of the right to attend criminal trials is lacking in Oregon. Article I, section 10, already provides for the right of access to criminal trials that petitioners contend we should read into section 8 as the predicate to holding that section 8 implicitly provides for unfettered access to pre-execution procedures. Under the circumstances, we decline petitioners’ invitation.(5) Accordingly, we reject petitioners’ argument.
Petitioners also contend that OAR 291-024-0065, OAR 291-02-0070 and OAR 291-024-0080 violate the First Amendment. First, it is important to note that petitioners, as media representatives, do not argue that the media is entitled to any special access to executions. Instead, they argue that the rules violate the First Amendment “because they prohibit any access by the public to execution procedures.” In that light, ORS 137.473(1) provides that “[a]ll executions shall take place within the enclosure of a Department of Corrections institution designated by the Director of the Department of Corrections.” OAR 291-24-0005 provides that “[a]ll executions in the State of Oregon shall take place within the enclosure of the Oregon State Penitentiary.” Petitioners do not challenge the constitutionality of ORS 137.473(1) or OAR 291-24-0005. Apparently, the import of their argument is that the First Amendment requires the state to admit the public to the Oregon State Penitentiary in order to view all stages of an execution process.
We can find no United States Supreme Court case which holds that the public has an unqualified right of access to penal institutions under the First Amendment. In Pell v. Procunier, 417 US 817, 94 S Ct 2800, 41 L Ed 2d 495 (1974), the Court held that the press did not have any special rights to gain access to the interior of a state penitentiary. In that case, prison inmates and the media challenged a rule prohibiting the media from specifically designating inmates whom they wished to interview. The rule was designed to prevent inmates from becoming “public figures” within the prison society, which would help them obtain a disproportionate degree of notoriety and influence among their fellow inmates. Id. at 831-32. The Court held the First Amendment inapplicable:
“The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources * * * and that government cannot restrain the publication of news emanating from such sources. * * * It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court.” Id. at 834 (footnote omitted; citations omitted).
The Court also explained that it would defer to prison administrators to determine what regulations are appropriate for purposes of safety in a prison environment:
“Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. at 827.
In First Amendment Coalition v. Calderon, ___ F3d ___ (9th Cir 1998) (July 23, 1998), the Ninth Circuit held that a California statute, almost identical to the rules at issue in this case, does not violate the First Amendment rights of either the press or the public. The court explained:
“Procedure 770 allows witnesses to view an execution from just after the IV has been inserted into the condemned and a saline solution is running until the condemned is pronounced dead. This procedure does not cut off all access to information regarding executions. Rather, Procedure 770 allows for some access and observation, while it minimizes the exposure of the members of the execution team to the media or other witnesses, out of a concern for staff safety and institutional security.
“We stress that we are not holding that the public and the press do not have First Amendments right to view executions. Rather, our holding is limited to the facts of this case. Calderon asserts that the limitations on viewing contained in Procedure 770 are ‘directly related to prison security, staff safety, and the orderly operation of the institutional procedure.’ The procedures surrounding an execution ‘are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.’ Pell, 417 US at 827. We do not have substantial evidence indicating an exaggerated response here and, therefore, defer to prison officials in this matter. Whatever First Amendment protection exists for viewing executions, it is not violated by Procedure 770.” Id. at ___.
In this case, the rules themselves provide the reason for the limitation on access to pre-execution procedures. OAR 291-024-0005(3)(a) provides:
“It is the policy of the [Department] to discharge its statutory responsibility to carry out death sentences imposed under Oregon law in a manner that is consistent with Oregon statutes, and with the safe, secure and orderly management and operation of the Oregon State Penitentiary, the safety and security of Department staff and other persons directly involved in the execution process, and their families, with due regard for the dignity of the condemned inmate, and with the limitations of space and resources. Consistent with these policies, executions will be conducted in a manner designed to protect as completely as possible the anonymity of Department staff and other persons involved.”
Because this case is on review under ORS 183.400, petitioners have not established any factual record that questions the Department’s policy statement. As such, we defer to the Department’s policy, as stated in the rule, that such rules are necessary for institutional security. In light of all of the foregoing considerations, we conclude that there is no absolute First Amendment right to view pre-execution procedures. Whatever right to public access to executions that may exist, the right may be qualified by administrative regulations reasonably related to the safety of inmates, prison staff and others within the prison walls.(6) On their face, OAR 291-024-0065, OAR 291-02-0070 and OAR 291-024-0080 are constitutional exercises of the authority granted to the Department to promulgate rules to insure the safety of those involved in the administration of executions.
II. THE RIGHT OF THE DEPARTMENT TO LIMIT DISCLOSURES ABOUT PERSONS ENGAGED IN THE EXECUTION PROCESS
Petitioners also contend that OAR 291-024-0017(2)(b), (c) and (e) and OAR 291-024-0020(3)(d)(D) violate Article I, section 8, and the First Amendment because they limit freedom of expression. OAR 291-024-0017 provides:
“(1) Persons invited by the Superintendent of the Oregon State Penitentiary (‘Penitentiary’) who wish to attend and witness the execution of a Department inmate shall sign and strictly observe an access agreement drawn by the department that establishes the terms and conditions of access to the Penitentiary for the purpose of attending and witnessing the execution. * * *
“(2) Terms and Conditions of Access: The witness access agreement shall specify, at a minimum, the following terms and conditions of access to the Penitentiary:
“* * * * *
“(b) Covenant of Nondisclosure. In order to protect the safety and security of Department staff and other persons involved in the conduct of the execution and the supervision of the condemned inmate, and the safety and security of their families, and to protect the personal privacy interests of such persons and insure their anonymity, witnesses shall not disclose either directly or indirectly in any manner whatsoever the physical appearance, attributes, characteristics or any other fact that would have a tendency to reveal the identity of any person, excluding only the Superintendent, that is directly involved in the conduct of the execution or supervision of the condemned inmate * * *.
“* * * * *
“(C) * * * The covenant of nondisclosure will not apply to any information now or hereafter voluntarily disseminated by the Superintendent or Department to the public, or which otherwise becomes part of the public domain through lawful means.
“(c) Remedies. Witnesses shall agree that in the event that they disclose information in violation of the access agreement, the Department is entitled to specific performance, including immediate issuance of a temporary restraining order or preliminary injunction enforcing the access agreement, and to judgment for damages caused by the witness’ breach, and to any other remedies provided by law.
“(d) Special Terms and Conditions of Access Applicable to Media Witnesses. Media witnesses, in addition to observing the general terms and conditions of access and covenant of nondisclosure applicable to all witnesses, shall return to the Oregon Department of Corrections Media Center (‘Media Center’) at the Penitentiary immediately following the execution to brief those media representatives assembled regarding their observations of the execution and to answer the media representatives’ questions. Media witnesses shall not file their own reports until after they have completed their responsibilities as pool reporters. Any media witness who fails to adhere to the terms and conditions of the access agreement may be barred from further access to the Penitentiary for purposes of attending, witnessing and reporting on executions. The Department may, in its discretion, also bar all other representatives of the media organization represented by the media witness.”
OAR 291-024-0020(3)(d)(D) provides:
“(d) In order to enter the secure perimeter of the Penitentiary, all persons and witnessing the execution shall:
“* * * * *
“(D) Sign and agree to abide by the terms of the witness access agreement, as provided in OAR 291-024-0017.”
In substance, these rules require that all persons invited to an execution must agree to certain restrictions on their freedom of expression in order to witness an execution. The issue is whether the imposition of such restrictions violates Article I, section 8, and/or the First Amendment.
It is noteworthy that there is no statutory right for the media to attend an execution. ORS 137.473(1) provides a statutory right of access to only certain individuals. It provides, in part:
“At the request of the defendant, the superintendent shall allow no more than two clergymen designated by the defendant to be present at the execution. At the discretion of the superintendent, no more than five friends and relatives designated by the defendant may be present at the execution. The superintendent shall allow the presence of any peace officers as the superintendent thinks expedient.”
Rather, they argue that the rules act as an unconstitutional prior restraint on the expression of those who are invited to attend the execution pursuant to the statute. We assume without deciding that petitioners can attack the constitutionality of the rules even if they are not among the enumerated persons in the statute. More importantly, the rules act as a restraint on those members of the media who have been invited to witness the execution. The restrictions prevent all persons who view an execution from disclosing the identity of the officials involved in the execution process.
The Department points out that the restrictions are for the purpose of ensuring the privacy and the safety of the Department’s employees who are involved in the execution process. OAR 291-024-0005(3)(a) provides that the Department must ensure that death sentences are carried out in a manner to provide for “safety and security of Department staff and other person directly involved in the execution process.” OAR 291-024-0017(2)(b) provides that “[i]n order to protect the safety and security of Department staff and other persons involved in the condcut of the execution * * * and to protect the personal privacy interests of such persons and insure their anonymity, witnesses shall not disclose” their identity.
We turn first to petitioners’ contention that OAR 291-024-0017(2)(b), (c) and (e) and OAR 291-024-0020(3)(d)(D) violate Article I, section 8, of the Oregon Constitution. Petitioners argue that the two rules constitute an unconstitutional limitation on their right freely to express to others what they observe at an execution. They rely on the court’s holding in State ex rel Sports Management News v. Nachtigal, 324 Or 80, 921 P2d 1304 (1996). In that case, the statute in issue required the trial court to preserve the secrecy of an alleged trade secret and mandated that any person involved in the litigation not disclose an alleged trade secret without prior court approval. ORS 646.469. The court held that the statute on its face violated Article I, section 8, because it restricted the content of speech and the restrictions did not fall within a historical exception to section 8. Petitioners contend that the facts in this case are parallel to those in Nachtigal because
“[h]ere, by administrative rule, the [Department] is attempting to prevent disclosure of facts in order to preserve in secrecy the identity of persons involved in the execution process. In Nachtigal, it was a statute attempting to prevent the disclosure of trade secrets. In neither case, here or in Nachtigal, is the subject of expression, the identity of personnel or the identity of trade secrets, one that is excluded from speech and expression protected by Article I, section 8, of the Oregon Constitution. In each case, here and in Nachtigal, the focus of the law is on nondisclosure of facts.”
This case differs from Nachtigal. What petitioners fail to point out about the holding in Nachtigal is that the court determined that the statute in that case violated section 8 because it could be applied to “third-party publishers,”(7) who did not learn about a trade secret illegally or who were not under a duty to preserve a trade secret. The court explained that its holding did not encompass the situation in which the prior restraint on expression was applied only to an employee bound to a confidentiality agreement or against a publisher who had broken the criminal law to obtain trade secrets. Id. at 89 n 8. Here, the restrictions are imposed as a condition to the acceptance of the Department’s invitation to attend an execution. The information about who is involved in the execution process is not public information and is not accessible unless the witnesses or media representatives first agree to the Department’s restriction. There is no possible application of the rules to “third-party publishers.” Because petitioners are bound by an agreement that requires them to keep the identities of prison officials confidential, the holding in Nachtigal is inapposite.
Typically, when statutes or rules provide for a prior restraint on the content of expression as do the rules in this case, the statute or rule is unconstitutional unless a historical exception exists. State v. Robertson, 293 Or 402, 412, 416-17, 433-34, 649 P2d 569 (1982). However, the content/historical exception analysis does not necessarily apply under circumstances where the restraint on expression is not a general prohibition against anyone who might disclose or discuss the details of a government activity, but is a restraint on the expression of one who undertakes to exercise official responsibility that carries with it attendant obligations of confidentiality. For instance, in In re Lasswell, 296 Or 121, 125, 673 P2d 855 (1983), the issue was whether a restriction in a disciplinary rule on a prosecutor that prohibited communication about a pending prosecution was constitutional under section 8. The court explained that the Robertson test was not controlling, because the rule at issue
“is not a general prohibition against anyone who might disclose or discuss facts bearing on a pending criminal prosecution. The parts of [the rule] involved here are addressed specifically to ‘[a] lawyer * * * associated with the prosection of a criminal matter.’ And the potential sanction, though of course serious to a lawyer, is not punitive but professional. It is civil, not penal. The provisions relevant here are not even addressed to all lawyers but to prosecutors, who are officially and professionally responsible for proceeding with due regard for the prosecuted person’s right to a fair trial by an impartial jury.”
In this case, the restraint on expression contemplated by the rules is also not a general prohibition against expression. Instead, it is directed at witnesses to executions who receive a quid pro quo in exchange for their agreement to keep certain observations confidential, i.e., the ability to view an execution. The rules expressly provide that “witnesses” enter into an agreement to keep confidential the identity of the persons involved in the execution process as a condition of access to information. Moreover, the covenant of nondisclosure is limited in nature. It does not apply to “any information now or hereafter voluntarily disseminated by the Superintendent or Department to the public, or which otherwise becomes part of the public domain through lawful means.” OAR 291-024-0017(1)(C). Thus, under the rules, a witness or media representative agrees to waive limited rights of expression under section 8 in exchange for the opportunity to be present at an execution.
In that sense, the waiver contemplated by the rules is analogous to a public employee who enters into an agreement with a public body that requires that the employee personally not exercise certain constitutional rights in exchange for the privilege of working for the public body. A public body is not free to require unconstitutional prerequisites to the attainment of official positions. On the other hand, it does have the authority, without violating the constitution, to enforce rules that require employees to waive their constitutional rights so long as the waiver bears a reasonable relationship “to the promotion of efficiency, integrity, and discipline of the public service and [the rules] are not arbitrary or discriminatory.” Minielly v. State, 242 Or 490, 498-99, 411 P2d 69 (1966).
Our inquiry then is whether the underlying purposes for the rules in this case have a reasonable nexus to the restraint that they impose on expression. The rules provide that witness are not allowed to “reveal the identity of any person, excluding only the Superintendent, that is directly involved in the conduct of the execution or supervision of the condemned inmate.” Their purpose is expressed within the rule itself:
“[T]o protect the safety and security of Department staff and other persons involved in the conduct of the execution * * *, and the safety and security of the their families, and to protect the personal privacy interests of such persons and insure their anonymity.”
The Department argues that “allowing the identities of those who carry out the sentence of death to become public would increase the chances that those person would be subjected to attacks by other inmates, thereby threatening institutional security.” When it comes to determining what is in the best interest for the safety and security of the prison under the circumstances, again, we elect to defer to the Department’s judgment.
We conclude that the reach of the rules prohibiting the revelation of the identity of prison officials involved in the execution process is reasonably related to the promotion of the safety of prison officials, their families and others who work or reside within the penitentiary. Therefore, they do not violate section 8.
Petitioners also argue that the rules violate the First Amendment. Under the First Amendment, when one voluntarily assumes “a duty of confidentiality, governmental restrictions on disclosure are not subject the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public.” United States v. Aguilar, 515 US 593, 606, 115 S Ct 2357, 132 L Ed 2d 520 (1995). Instead, the Court proceeds to balance the government’s interest in imposing the restriction against the restraint on the constitutional right. For instance, the court in United States v. Marchetti, 466 F2d 1309, cert den 49 US 1063 (1972), ruled that the federal government could constitutionally impose secrecy requirements on its employees (in that case, a central intelligence agency officer) and enforce the restrictions through a system of prior censorship, so long as the information was classified and not officially disclosed to the public. On balance, we hold that the interests of safety of prison personnel outweigh the interest of reporting the identify of those involved in the execution process. As we previously discussed, the rules provided for a limited waiver rights of expression and are reasonably related to the promotion of safety of prisons officials, their families and others who work or reside within the penitentiary. Accordingly, we conclude that the rules do not violate the First Amendment.
Petitioners’ other arguments do not require discussion in light of our holdings and the rationales underlying them. In summary, we hold that OAR 291-024-0017(2)(b), (c) and (e), OAR 291-024-0020(3)(d)(D), OAR 291-024-0065, OAR 291-024-0070 and OAR 291-024-0080 do not violate Article I, section 8, or Article I, section 10, of the Oregon Constitution or the First Amendment to the United States Constitution in any way that petitioners assert.
Rules held valid.
——————————————————————————–
1. ORS 183.400 provides, in part:
“(1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. * * *
“* * * * *
“(4) The court shall declare the rule invalid only if it finds that the rule:
“(a) Violates constitutional provisions[.]”
——————————————————————————–
2. In AFSCME, 315 Or at 79, the court explained:
“We emphasize at the outset the limited scope of the Court of Appeals’ review (and ours) under ORS 183.400. Aside from questions that might arise concerning the facts surrounding the process of adopting a rule–questions not raised in this case–judicial review under ORS 183.400 is limited to the face of the rule and the law pertinent to it. Numerous individual fact situations can arise under any rule, but judicial review of the rule as applied to each of those situations is reserved to other forums. ORS 183.400(1). See, e.g., ORS 183.482, ORS 183.484 (providing for judicial review of agency orders in various fact-specific situations). Petitioners’ petition for review in this case refers to actions alleged to be occurring pursuant to the rules at issue here, but the legality of any particular application of the rules is premature, and not subject to review under ORS 183.400.”
The court applied its holding in AFSCME regarding the scope of appellate review under ORS 183.400 in GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 464-65, 900 P2d 495 (1995), cert den 517 US 1155 (1996).
——————————————————————————–
3. Moreover, the Supreme Court has consistently defined the word “adjudication” in other contexts as an event that occurs in judicial proceedings. In Vasquez v. Courtney, 272 Or 477, 479, 537 P2d 536 (1975), the court stated that “[a]n ‘adjudication’ is defined as ‘the giving or pronouncing a judgment or decree in a cause.’ Black’s Law Dictionary (Rev 4th Ed 1968).” In State v. Hoffman, 236 Or 98, 103, 385 P2d 741 (1963), the court defined “adjudication” as “a final judgment of the court, that is, it involves an exercise of the judicial power in hearing and determining the issues and rendering a judgment thereon.”
——————————————————————————–
4. In fact, it is far from clear that section 8 extends to access to government records. In State ex rel KOIN-TV v. Olsen, 300 Or 392, 400-11 and n 17, 711 P2d 966 (1985), the court said that it is not self-evident that section 8 entitles a television station to copy a videotape of a deposition that had been played in open court and that it had not been given any persuasive rationale that would support such a claim.
——————————————————————————–
5. Justice Linde, in his concurrence in State ex rel Oregonian Pub. Co. wrote:
“[Article I, section 8,] assures reporters and editors, along with any other observer or interested citizen, the freedom to discuss what they know, or think they know, or surmise, or advocate, without fear of sanctions beyond civil damages for private harm. * * * But this unrestrained freedom to speak, write, print, and express opinions ‘on any subject whatever’ is not itself an ‘Open, Sesame’ to public offices, or records, or other information. It does not give journalists a constitutional claim to the information which it gives them the freedom to publish. That they are left to get for themselves.” 289 Or at 287.
——————————————————————————–
6. We need not decide whether members of the public have a right to attend the execution itself under the First Amendment or otherwise on the ground that, historically, executions were public events. Petitioners do not argue that they have been denied access to executions, only to the pre-execution procedure.
——————————————————————————–
7. The plaintiff-relator in Nachtigal was the publisher of a weekly trade newsletter, which announced that a shoe manufacturer was planning to introduce a new design of running shoe. The manufacture alleged that the newsletter had obtained a copy of its internal, confidential specifications.
No related posts.
Cameras in courts rule — UTCR3.180
Uniform Trial Court Rule 3.180 (Cameras in courts)
Click on UTCR3-180 to get full rule on “public access coverage” that means cameras in courtrooms.
District attorneys in Baker County and Clackamas County order disclosure of notices of tort claims
Baker County District Attorney orders school district to disclose tort claim records
Matthew B. Shirtcliff, District Attorney for Baker County
Court House
1995 Third Street – Suite 320
Baker City, Oregon 97814
Main office: (5431) 523-8205
Support Enforcement: (541) 523-6414
FAX: (541) 523-3913
Public Records Disclosure Request
Order
On January 8, 2003 Baker City Herald editor, Mark Furman
formally requested that the Baker County District Attorney conduct a
review of the Baker School District 5J’s denial of the Baker City
Herald’s request to review records. ORS 192.450 governs such a review.
The burden of proof is on the entity denying the disclosure to
demonstrate why the records should not be disclosed.
There are two requests made by the Baker City Herald in relation
to disclosure. The Herald seeks any information, including a possible
tort claim or other legal proceeding, regarding complaints made by
Dennis or Lisa Beyer related to the employment of David Giles with the
school district. The second request is for records pertaining to the
district’s investigation of any complaints that led to Mr. Giles
resignation.
The Baker School District 5J cites O.R.S. 192.501(1), the
exemption for records pertaining to litigation, as its basis for denying
disclosure of any tort claim notice. O.R.S. 192.501(1) does create a
exemption for records pertaining to litigation; however, the Oregon
Court of Appeals in Lane County School District v. Parks. 55 Or App 416,
(1981), interpreted this statute and created a rule of law which must be
reviewed in determining if a record falls within the litigation
exemption or must be disclosed.
The Court of Appeals, in Parks considered three factors in
reviewing a trial courts findings:
1. Was litigation reasonably likely to occur.
2. Did the records sought contain data which when disclosed,
might reveal a cause of action against the party or the extent or
magnitude of a cause of action, or will the records being sought
materially assist persons prosecuting such litigation against the party,
3. Do the records sought contain data developed or compiled by
the body for which litigation is anticipated for use in litigation.
At first glance it might appear the school district is correct
that the exemption would apply as a tort claim notice clearly reveals a
potential cause of action or the magnitude of one. However, the tort
claim notice does not meet the third part of the test.
In order for the record to be exempt it must be compiled,
created or developed by the party anticipating the litigation. This
would typically be a document or record the party might create
internally to prepare for litigation. In this situation, the party
anticipating litigation, the Baker School District 5J, did not create,
compile or develop the record. Instead it was created by the party who
may or may not pursue a cause of action against the school district.
This tort claim notice is not a document created by the school district
in anticipation of litigation therefore it is not exempt from disclosure
pursuant to O.R.S. 192.501(1).
The second request for disclosure made by the Baker City Herald
is for information related to the school district’s investigation into
any complaints against Mr. Giles. O.R.S. 192.501(12) creates an
exemption from disclosure of records contained in personnel discipline
actions, or materials or documents supporting that action. This
exemption only applies to completed disciplinary actions when a sanction
is imposed. This exemption does not apply when an employee resigns
during an employer investigation or in lieu of disciplinary action. [See
Portland v. Rice, 308 Or 118 (1989) and The Attorney General’s Public
Records and Meetings Manual p. 38]
David Giles resigned his employment on October 7, 2002 and it
appears that occurred prior to any completed personnel discipline
action. Normally this would preclude the exemption and the investigatory
records compiled by the district would be subject to disclosure.
However, because the Teachers Standards and Practices Commission has
instituted an investigation into this matter O.R.S. 342.176(4) is
triggered. This statute makes the documents and materials used in the
investigation and the report of the executive director confidential and
not subject to public inspection unless the commission makes a final
determination that the person charged had violated O.R.S. 342.143 or
O.R.S. 342.175. Because records compiled by the school district in its
investigation have been forwarded to the Teachers Standards and
Practices Commission they are deemed confidential pursuant to O.R.S.
342.176(4).
O.R.S. 192.502(9) becomes triggered by the investigation of the
Teachers Standards and Practices Commission. O.R.S. 192.502(9) is a
general exemption statute which indicates that records are exempt if the
record or information the disclosure of which is prohibited or
restricted or otherwise made confidential or privileged under Oregon
law. Here, other Oregon law O.R.S. 342.176(4) makes the records
confidential if they are used in the investigation by the Teachers
Standards and Practices Commission. Because the Teachers Standards and
Practices Commission is currently investigating this matter using
records compiled by the school district those records are exempt from
disclosure at this time.
CONCLUSION
The tort claim notice filed by Dennis or Lisa Beyer against the
Baker School District 5J is not exempt from disclosure under Oregon’s
public records statutes and shall be made available for inspection by
the Baker City Herald. Personnel records of Dave Giles relating to this
matter are exempt from disclosure at this time.
So ordered on
January 10, 2003
(signature)
Matthew B. Shirtcliff
District Attorney for Baker County
Clackamas County District Attorney orders county to disclose tort claim records
John S. Foote, District Attorney for Clackamas County
Clackamas County Courthouse
807 Main Street, Room 7
Oregon City, Oregon 97045
503 655-8431
FAX 503 650-8943
www.co.clackamas.or.us/da/
September 9, 2003
Noelle Crombie, Oregonian Newspaper Staff Writer
365 Warner Milne Road, Suite 110
P O Box 2500
Oregon City, Oregon 97045
James M. Coleman
Clackamas County Counsel
906 Main Street
Oregon City, Oregon, 97045
RE: Public Record Petition
Public Record Holder: James M. Coleman, Clackamas County Counsel
Petitioner: Noelle Crombie, Oregonian Newspaper Staff Writer
Date of Request: September 2, 2003
Dear Noelle Crombie and James M. Coleman:
This letter is the District Attorney’s order on your petition
for disclosure of records under the Oregon Public Records Law, ORS
192.410 to 192.505.
FINDINGS OF FACT
1. On September 2, 2003, Oregonian staff writer Noelle Crombie
(Petitioner) verbally requested a tort claim notice filed on behalf of
Damon Coates from Assistant County Counsel Ed McGlone (Public Record
Holder). Said request was denied by Public Record Holder on that same
date.
2. By letter dated and received by the District Attorney’s
Office on September 2, 2003, Petitioner requested disclosure of said
tort claim notice.
3. By fax transmission dated September 4, 2003 and received by
the District Attorney’s Office September 5, 2003, Petitioner cited the
2001 Oregon Attorney General’s Public Records and Meetings Manual
claiming that a tort claim notice does not meet the statutory exemption
for public records pertaining to litigation.
By letter dated September 9, 2003 and received by fax
transmission on that same date, Public Record Holder neither confirmed
or denied the existence of any tort claim notices and provided no
records for review. The Public Record Holder claimed ORS 192.501(1),
Records Pertaining to Litigation, as authority for its position.
CONCLUSIONS OF LAW
1. The Public Records Law is primarily a disclosure rather than
a confidentiality law. The general policy of the law favors public
access to government records. A public body that denies a records
inspection request has the burden of proving that the requested
information is exempt from disclosure. ATTORNEY GENERAL’S PUBLIC RECORDS
AND MEETING MANUAL (1999) at 18.
2. ORS 192.501(1) conditionally exempts:
Records of a public body pertaining to litigation to which the
public body is a party if the complaint has been filed, or if the
complaint has not been filed, if the public body shows that such
litigation is reasonably likely to occur. This exemption does not apply
to litigation which has been concluded, and nothing in this subsection
shall limit any right or opportunity granted by discovery or deposition
statutes to litigation or potential litigation[.]
The exemption is a narrow one and pertains only to records
“compiled or acquired by the public body for use in ongoing litigation
or *** litigation [that] is reasonably likely to occur.” The exemption
applies only to records developed or compiled by the public body for use
in the litigation. A notice of tort claim against the public body is an
indication that litigation is likely to occur. The statute exempts notes
or reports <cm+NT(thomas-m): originally underlined; here italicized
-NT>(emphasis added) prepared in response to such a notice. ATTORNEY
GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL (1999) AT 24-25; ATTORNEY
GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL (2001) AT 26-27.
DISCUSSION AND RULING
A telephone call placed by this office to the Attorney General’s
Office on September 9, 2003 has confirmed that there are no reported
cases or Attorney General’s opinions on point regarding the central
issue of whether a tort claim notice, standing alone, is exempt from
disclosure pursuant to ORS 192.501(1). Records “pertaining to
litigation” are exempted by that statute.
ORS 30.275 requires that a notice of claim must be given to a
public body prior to instituting an action for loss or injury against a
public body. A formal notice of a claim is a written communication from
a claimant or representative of a claimant ORS 30.275(4). The written
notice is notice of the litigation, it is not of the litigation itself
such as records or notes that might be generated by the public body and
exempted by ORS 192.501(1). By way of analogy, a complaint filed by a
party claiming damages against a public body would be public notice of a
legal proceeding and therefore a public record. It follows that the
notice that such a claim will be asserted against a public body would
therefore also constitute a public record.
The general policy governing Public Records Law favors public
access to government records. It is primarily a disclosure rather than a
confidentiality law. We cannot find that a tort claims notice is the
type of public records exempted form disclosure under ORS 192.501(1).
IT IS HEREBY ORDERED that to the extent that said tort claim
notice exists that petitioner’s request is allowed.
Sincerely,
(signature)
David F. Paul, #81332
Deputy District Attorney
DFP/lc
]]>
Related posts:
Jackson County District Attorney orders school district to release names, responses of residents who commented on health curriculum
Jackson County, Oregon
District Attorney’s Office
Mark Huddleston
District Attorney
To: Cathy Noah and Tim Gerking
Fax: 776-4376 772-7249
Subject: public records petition
Date: December 2, 2005
Ms. Noah and Mr. Gerking:
This letter constitutes my order in response to Ms. Noah’s public records petition requesting that I review the Medford School District’s (District) denial of a public records request made by the Mail Tribune (Tribune) on November 23, 2005. The request was for the release of “the e-mail and written comments on the proposed health curriculum, as well as the names of the people commenting.” The District responded on November 29, 2005, agreeing to furnish to the Tribune the written and e-mail comments received by the District. However the District indicated that it would “redact the names and e- mail addresses from the comments, because such information is personal in nature and disclosure of such information would have a chilling effect on the Districts future ability to receive communication from the community on such important and sensitive matters.”
There is no question but that the Medford School District is a public body subject to the Oregon Public Records Act. ORS 192.420. “The Public Records Law is primarily a disclosure law, rather than a confidentiality law. Exemptions …are limited in their nature and scope of application because the general policy of the Jaw favors public access to government records.” Attorney General’s Public Records and Meetings Manual, p.21 (2004) citing Jordan v. MVD, 308 Or 433, 438 (1989). It is also well-settled that when examining any request for a record kept by a public body, the presumption is in favor of disclosure unless there is a clear and overriding reason not to do so. Coos County v. Department of Fish & Wildlife, 86 Or App 168, 173 (1987).
In his letter to me of December 1, 2005, Mr. Gerking indicates that there were 57 e-mails received by the District. The letter indicated that those e-mails were not solicited by the District. However, in a telephone conversation with me on December 2, 2005, Mr.- Gerking advised that he had looked further into the matter and told me that the District had received a total of 67 e-mails on this matter as of December 2nd.
Of the 67 e-mails, 58 were received through a web page that the District had appended to its home page, which had a link to the proposed curriculum, and invited people to send comments to the District about the proposed changes. Mr. Gerking further advised that on November 22nd, that web page was changed to indicate that it was optional for the person sending in comments to identify that person’s name and/or e- mail address. Of the 45 comments that were received by the District between November 15 and November 22, 2005, all were identified by name and e-mail address. Of the 13 comments received by the District through that web page after November 22nd, only two people did not leave either a name or an e-mail address. Mr. Gerking also advised that 4 e-mails were sent directly to Superintendent Long, and 5 others came to the District through the home page site for the District. Those 9 e-mails all came with the sender’s name and e-mail address identified.
In his December 1st letter, Mr. Gerking cites ORS 192.502(2), the personal privacy exemption, as authority for the District’s position. That statutory exemption allows the public body to decline to disclose public records if:
1. the information is of a personal nature;
2. the disclosure of the information would constitute an unreasonable invasion of privacy; and
3. there is no overriding public interest in disclosure.
Jordan, supra at 440 et. seq. Attorney General’s Public Records and Meetings Manual, p.58 et. seq- (2004).
I analyze these three questions below:
1. Are names and e-mail addresses personal in nature?
Personal information “includes all information ‘relating to a particular person,’ such as a person’s home address, age, weight and residential telephone number.” Attorney General’s Public Records and Meetings Manual, p.59 (2004), citing Jordan, supra- I agree with Mr. Gerking’s analysis that the names and e-mail addresses of the persons who submitted e-mail comments to the District are “personal” within the meaning of the Oregon Public Records laws.
2. Would the disclosure of such personal information constitute an unreasonable invasion of privacy?
The Attorney General’s Public Records and Meetings Manual notes that whether disclosure of personal information constitutes an unreasonable invasion of privacy involves an objective test. “An invasion of privacy will be unreasonable where Ian ordinary reasonable person would deem {it} highly offensive.” Attorney General’s Public Records and Meetings Manual, p.60 (2004), citing Jordan, supra at 441. In weighing this factor, the public body may consider how the entity requesting the information will use the information if released. Jordan, supra at 444.
In this case, the Tribune indicated in its November 23, 2005 e-mail to the District that receiving the names and e-mail addresses of the persons submitting comments to the District would allow the Tribune to “gauge the tenor of the comments and see who is involved in the process. We would always contact people independently to verify their comments before publishing them -” From this, it is apparent that the Tribune may choose to attribute by name, specific comments that individuals submitted to the District concerning the proposed revision to the health curriculum.
In determining whether releasing the names and e-mail address in this case would constitute an unreasonable invasion of privacy, the primary question is whether a reasonable person who submitted an e-mail comment would consider it “highly offensive” to have those comments publicly printed in the Tribune, with an attribution as to the name of the person who submitted the comment. Certainly the people who cared enough about this issue to submit written comments to the District meant what they said and intended that the District consider their input. Anonymous comments are not given nearly the weight as comments coming from an identified constituent. The question then is whether persons submitting comments did so with a reasonable expectation that those comments would not be publicly attributed to them. If such was the expectation, the final question is whether it would be offensive to the reasonable person to have the comments published with the attribution, regardless of the expectations at the time of submission.
While the subject matter in question may be politically and emotionally charged, I doubt that the people who submitted the comments would be unwilling to have the comments published and identified as having coming from them. The situation is not dissimilar to making a comment at a school board meeting. Those comments are public by their very nature, and a reasonable person would not be surprised, or offended, to find those comments quoted in the next day’s paper. Absent some assurance on the part of the District that comments submitted on this topic would remain confidential, there is no reason to believe that a reasonable person would have expected that comments submitted might not be used in a public forum of some sort.
I believe it is relevant to this issue to note that of the 13 people who submitted e-mail comments to the District through the redesigned link which allowed them to opt not to list their name or e-mail address, only two did not provide either piece of information.
Accordingly, I find that the District has failed to meet its burden that disclosure of the names and e-mail addresses of persons who submitted comments to the District would constitute an unreasonable invasion of privacy.
3. Is there is an overriding public interest in disclosure?
Although my decision noted above decides the issue in favor of the Tribune, I feel that the final test should also be addressed. The District cites the “chilling effect” that disclosure of this information might have on people who in the future may wish to weigh in on matters of concern to the District. I note that the Oregon Public Record Act does contain a provision for public bodies to limit the disclosure of information “submitted to the public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by disclosure.” ORS 192.502(4). I do not address whether such a procedure could have been utilized by the District in this case to solicit confidential submissions, as a public interest test is still required under this section of the Act. However, the fact that such an approach was potentially available and was not utilized lends further support to the fact that e-mailed comments to the District were not solicited with a reasonable expectation on the part of the District that they were confidential in nature.
I believe there is a strong public interest in disclosure of the names of people who choose to submit comments to a public body. As indicated above, those comments are normally submitted with the intent of influencing the deliberative process that a public body is undertaking. In the case of the District, the decision whether to adopt the proposed curriculum will be made by the school board. Board members are elected by popular vote of the people within the District. Just as voters are entitled to know who is contributing money to a political candidate, so too are people within the District entitled to know who is saying what about this issue. Ordering disclosure in this instance will allow the public, as well as the Tribune, to “gauge the tenor of the comments and see who is involved in the process.” I believe that public interest outweighs any chilling effect such disclosure may have.
Accordingly, the Tribune’s Petition for disclosure of public records is hereby granted. The District is ordered to make available for inspection by the Tribune the names and e-mail addresses of the persons who submitted e-mail comments to the District regarding the proposed health curriculum. The District has seven days to comply with this order unless during that time period the District Institutes proceedings under ORS 192.450(2) for injunctive or declaratory relief in the Circuit Court for the State of Oregon for Jackson County.
This order is effective December 2, 2005.
Mark Huddleston
District Attorney
]]>
Related posts:
- District attorneys in Baker County and Clackamas County order disclosure of notices of tort claims
- Josephine County judge rules teacher resignation agreement is public
- Multnomah District Attorney rules attorney-client privilege doesn’t apply to factual information
Josephine County judge rules teacher resignation agreement is public
Judge rules resignation agreements public
A Josephine County judge ruled in June 2005 that the Three Rivers School
District must make public a resignation agreement in which the board
paid $10,000 to an instructor who was later barred from teaching in
Oregon. The judge said just because an item is placed in a teacher’s
personnel file does not make the item exempt from public scrutiny. The
document, he said, did not include any of the sensitve, personal privacy
interests protected by state law.
GERALD C. NEUFELD, Circuit Judge
ALLAN M. COON, Circuit Judge
LINDI L. BAKER, Circuit Judge
MICHAEL NEWMAN, Circuit Judge
State of Oregon
Josephine County Circuit Court
June 2, 2005
Mr. Jack L. Orchard
Attorney at Law
One Main Place
101 SW Main Street, Suite 1100
Portland, OR 97204-3219
Ms. Jennifer L. Hungerford
Attorney at Law
615 High Street
Oregon City, OR 97045
RE: Courier Publishing Company v. Three Rivers School District;
Case No. 04CV0631; Motions for Summary Judgment
Dear Counsel:
On May 26, 2005, this Court heard defendant’s Motion for
Summary Judgment and plaintiff’s Cross-Motion for Summary Judgment.
During said hearing, counsel agreed that the facts of this case were not
disputed, and each party claimed that they should receive summary
judgment as a matter of law. The Court took the matter under advisement
for review of the facts, the law, argument, and an in camera review of
the document in question, to wit: the “RESIGNATION AGREEMENT”. I
have come to the conclusion that plaintiff’s Motion for Summary
Judgment must be granted and that defendant’s Motion for Summary
Judgment must be denied.
The law is clear, just because an item is placed in a
teacher’s personnel file does not make the item exempt from public
scrutiny. Defendant urges that the document is exempt pursuant to ORS
342.850 and ORS 192.502(9). The former statute is clearly intended to
protect the privacy interest of school teachers and school districts
from disclosure of teacher evaluations, performance improvement
procedures, in-house disciplinary procedures, and other such internal
activities between teachers and school administrators pertaining to
teacher employment. All such activity, as reflected in the school
district personnel files, is exempt from disclosure pursuant to ORS
192.502(9).
However, pursuant to ORS 192.505, if non-exempt information is
mingled with exempt information, then the public body is required to
separate the exempt and non-exempt material and make the non-exempt
material available for examination. This Court finds that the
“Resignation Agreement” is non-exempt material.
The Resignation Agreement is a settlement agreement between the
Three Rivers School District and one of its teachers, Steven Koller.
This agreement does not recite any of the facts which provides the basis
for the school district seeking the resignation of Mr. Koller. Instead,
the agreement simply specifies the terms, conditions and restrictions
that each party gives and receives in exchange for Mr. Koller resigning
from his position as a teacher with the Three Rivers School District.
While it is not unreasonable for such document to be placed in Mr.
Koller’s personnel file, in order to provide closure to such file; it
is also quite reasonable and logical that the agreement be stored in
other locations within the district in that it pertains to school
district administration and does not recite the any of the sensitive,
personal privacy interests held by Mr. Koller pursuant to ORS 342.850
and 192.502(9).
It is primarily for this reason that the Court will order that
the defendant’s School District exercise its duty under ORS 192.505
and separate the non-exempt Resignation Agreement from the balance of
the exempt Koller personnel file and provide said information to
plaintiff forthwith.
For counsel’s information, and in order to complete the
record, the Court also finds that the School District and Mr. Koller
have both waived the provisions of ORS 342.850 and, 192.502(9) as
alleged by plaintiff in their Memorandum and Affidavits in Support of
their Motion for Summary Judgment.
Mr. Orchard may provide an order and judgment accordingly.
Very truly yours,
Allan H. Coon
Circuit Court Judge
AHC:mp
]]>
Related posts:
- District attorneys in Baker County and Clackamas County order disclosure of notices of tort claims
- Marion Judge orders SAIF to turn over records
- Oregon Court of Appeals rules Portland Police disciplinary records in Kendra James case are open
Marion Judge orders SAIF to turn over records
orr JUDGE ORDERS SAIF TO ANSWER QUESTIONS, TURN OVER RECORDS 07/03/2004 ======================================================================
THE OREGONIAN
Copyright (c) 2004, The Oregonian Publishing Company
Saturday, July 3, 2004
EDITION: SUNRISE
SECTION: LOCAL STORIES
PAGE: D03 LENGTH: 56 lines
HEADLINE: JUDGE ORDERS SAIF TO ANSWER QUESTIONS, TURN OVER RECORDS
BYLINE: JANIE HAR – The Oregonian
DATELINE: SALEM
TEXT:
Summary: The state-owned workers’ compensation insurer faces a separate hearing for not producing public records
Saif Corp. lost twice Friday when a Marion County judge ordered the state-owned workers’ compensation insurer to answer opponents’ questions and denied the agency’s request to keep certain records confidential.
Both orders are in advance of a hearing next month to determine whether Saif should be held in contempt for not producing records despite an appellate court decision last year ordering many of the agency’s business records to be made public.
The plaintiff is a nonprofit group financed mostly by Saif rival Liberty Northwest and represented by attorney John DiLorenzo.
Last month, DiLorenzo produced an affidavit by a former Saif employee who claimed top agency officials told him to delete public documents, prompting the contempt hearing.
On Friday, Circuit Judge Paul Lipscomb said Saif officials must answer DiLorenzo’s detailed questions about how the agency searched for documents to satisfy his public records requests and a subpoena from the state ethics commission.
DiLorenzo contends Saif officials failed to hand over documents that were produced for the ethics commission, and he wants to know why.
Michael Mueller, Saif’s top attorney, said the possibility that Saif used different methods to search for records has little bearing on the issue of whether the agency “willfully” hid public documents.
“The harm in it is that it allows Mr. DiLorenzo to continue to push this discovery process far outside of the boundaries of what this hearing is really about,” he said.
Lipscomb also ruled that the internal business records of Gard & Gerber, a private company that manages public relations for Saif, must be turned over to DiLorenzo.
A Saif attorneyargued that the documents — which include calendars, memos and notes — are the property of a private third party and are not shared with Saif officials. DiLorenzo contended that communications among Gard & Gerber employees may “indicate what documents were received from Saif or should have gone to Saif.”
“I find it patently unreasonable for Saif to take the position (that) documents that are parked off campus are not subject to public inspection when they involve” a public agency, DiLorenzo said.
Saif officials submitted affidavits to Lipscomb this week rebutting the accusation by Mark Cohen, a former public affairs employee, that top agency officials had ordered him to erase records to avoid making them public.
The officials also submitted a manager’s notes contending that Cohen’s job performance was poor and prompted them to ask him to resign in March.
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Multnomah District Attorney rules attorney-client privilege doesn’t apply to factual information
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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Oregon Court of Appeals ruling granting access to Portland police disciplinary records
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:
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Oregon Supreme Court grants access to Portland School District records of alleged employee theft
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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