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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Portland City Attorney opinion on how Fire Bureau is not covered by HIPAA

This is a legal opinion from the Portland City Attorney’s Office explaining why HIPAA does not apply to the Portland Fire Bureau. In sum, it says that because the fire bureau is not engaged in a transaction involving fees and health care service, it is not a covered entity. This is important because some fire departments have decided that because they are EMTs they potentially are health care providers. But HIPAA only applies to certain entities and according to this opinion does not apply to the Portland Fire Bureau.

Courtesy of Therese Bottomly, The Oregonian

March 30, 2004

INTEROFFICE MEMORANDUM

TO:Rob Hawks

Portland Fire Bureau, EMS Coordinator

John Bisenius

Portland Fire Bureau, EMS Deputy Chief
EditRegion3

Linda Hockett Portland Fire Bureau

FROM: David L. Jorling

Senior Deputy City Attorney

SUBJECT: HIPAA Privacy Regulations and the Portland Fire Bureau

QUESTION PRESENTED: You have asked whether new federal privacy regulations issued under the Health Insurance Portability and Accountability Act (HIPAA) apply to the Portland Fire Bureau.

ANSWER: No.

FACTS: My understanding of the Bureau’s involvement with medical treatment and medical records is, in general, as follows: The Bureau, as part of its daily emergency operations, responds to medical emergencies throughout the City. Bureau responders include Emergency Medical Technician Paramedics and Emergency Medical Technician Basics (EMT-Ps and EMT-Bs) that provide emergency medical care. This care, of which I won’t go into detail here, includes the administration of critical lifesaving medical treatment. Medical records of these encounters are kept electronically by the entry of “patient care reports,” which contain medical histories, medication history and use, allergy histories, notes on previous medical conditions, and the care that was administered. These records are on the Bureau’s computer system on Bureau forms contained in the system. Technologically advanced medical equipment automatically records some of the medical records of treatment directly into the equipment used, which is kept as part of the medical record as well. After a medical response, one or more of the responders involved will prepare and complete the “patient care report” of an emergency response on computer generated forms, which constitute the medical records of the Bureau.

Typically, Fire Bureau paramedics administer the care outlined above until the arrival of ambulances operated by American Medical Response (AMR). When AMR arrives on-scene, the first responders give the AMR responders medical information gathered before they arrived. After a medical response, one or more of the Fire Bureau responders involved will prepare and complete the patient care report of an emergency response on computer generated forms. The Fire Bureau does not request copies of any information from AMR to complete these patient care reports and they do not give a completed copy directly to AMR.

Multnomah County Emergency Medical System (EMS) contracts with American Medical Response (AMR) to provide ambulance services in Multnomah County . Multnomah County EMS has an Agreement with the Portland Fire Bureau which stipulates that they are entitled to reimbursement from Multnomah County EMS for disposable medical supplies used in the course of their First Responder duties. On a quarterly basis, Portland Fire provides Multnomah County EMS with a bill listing the total supplies used over a given time period.

Medical Records are occasionally shared between representatives of the Fire Bureau and AMR. The Fire Bureau may hold a Critical Incident Stress Debriefing (CISD) session with AMR personnel involved where additional Protected Health Information (PHI) may be disclosed from AMR personnel. These reviews are conducted through Multnomah County EMS . The records are shared with the Medical Director, currently Dr. John Jui, a physician who is a County Employee assigned to EMS . In some cases, completion of the record is delayed 72 hours if the record cannot be finished on a particular responder’s shift. Currently the Bureau generates approximately 35,000 records of individuals per year. These records concern those who have been provided medical services from the Bureau, and anyone having access to a Bureau computer can access these records within the 72-hour period. The records are catalogued and are accessed by the “run number” assigned to the response by the Bureau of Emergency Communications. There is no catalogue or search of records available by patient name.

After 72 hours, the only individuals that can access these records are Bureau personnel at the EMS office. These records are kept forever in the EMS database. The records are accessed and copied so that they can be provided to entities and individuals outside the Bureau pursuant to a court order, patient authorization or subpoena. They are also used internally for quality assurance, research and statistics. The records are also shared with the Medical Director who is a County employee and physician with a M.D. degree. The Bureau contracts with Multnomah County that provides the Medical Director service to the Bureau. The Medical Director’s duties include providing advice and training to the Bureau EMS personnel. It is my understanding that the Medical Director considers patients treated by Bureau EMS personnel to be patients of the Medical Director.

DISCUSSION: The HIPAA privacy regulations are applicable to any “Covered Entity.” There are three types of covered entities that are identified as follows:

(1) A health plan;

(2) A health care clearinghouse;

(3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. (Emphasis added) (footnote: 45 CFR 160.102)

I am certain that the Bureau is neither a Health Plan nor a Health Care Clearinghouse  as those terms are defined by HIPAA. 45 CFR § (section symbol) 160.103. Whether the Bureau is a “health care provider” depends not only on whether the Bureau’s medical operations fall within this definition, but also a second definition of “health care provider” contained further on in the regulations. I will deal with this second definition first.

“Health care provider means a provider of services (as defined in section 1861(u) of the Act, 42 U.S.C. 1395x(u)), a provider of medical or health services (as defined in section 1861(s) of the Act, 42 U.S.C. 1395x(s)), and any other person or organization who furnishes, bills, or is paid for health care in the normal course of business.” 45 CFR §(section symbol) 160.103.

The cross-references to other laws in this second definition include by those references certain activities within the definition of heath care provider (through reference to 42 U.S.C. 1861(u)). Entities such as hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and certain “funds” that are not relevant to this inquiry are in this way included within the definition of health care provider. The second statutory reference (42 U.S.C. 1395x) includes by reference under the HIPAA definition of health care provider those “medical and other health services” that are set forth in detail in this particular statute. It is too long and not relevant enough to repeat in its entirety here. Simply stated, this referenced statute makes the provision of virtually all physician services and supplies (from antigens to colorectal screening tests) within the definition of health care provider under HIPAA. While this section also references “nurse practitioners” and “physician assistants,” (which therefore specifically makes them fall within the definition of a health care provider under HIPAA), no mention is made of paramedics. So an inference may be drawn that paramedics were not intended to be deemed medical providers for purposes of HIPAA.

It is clear that the medical operatio ns of the Fire Bureau as set forth in the facts above fall within this definition. The clause “any other person or organization who furnishes, bills, or is paid for health care in the normal course of business” is expansive and all-inclusive. It appears that as long as any one of the qualifiers are met (“furnishes, bills, or is paid”), a medical provider is encompassed by this definition. Clearly the work of the Bureau constitutes the “furnishing” of medical care.

Fortunately for our analysis, the definition of “health care provider” must be read in conjunction with the description of “health care provider” in the identifications of “Covered Entities” mentioned at the outset of this discussion. That is, does the Bureau transmit health information in connection with a transaction covered by this subchapter? To determine this we must look at what HIPAA considers a “transaction.”

Only health care providers that conduct any “standard transaction” electronically, or that engage third parties (such as billing services) to process such transactions electronically, are subject to the rules.° The “Standard Transaction” that may apply to the First Responders is “Health care claims or equivalent encounter information.”

Health Care Claims or equivalent encounter information transaction is either of the following:

a) A request to obtain payment, and necessary accompanying information, from a health care provider to a health plan, for health care.

b) If there is no direct claim, because the reimbursement contract is based on a mechanism other than charges or reimbursement rates for specific services, the transaction is the transmission of encounter information for the purpose of reporting health care.±

There is no reference to the care of any specific patient when the Bureau bills Multnomah County . Further, the Bureau does not bill anyone for the care provided to any individual. Multnomah County is reimbursed by AMR for Portland Fire’s expense as part of their franchise fee. There is no direct claim because the reimbursement contract is based on a mechanism other than charges or reimbursement rates for specific services to specific individuals. Therefore, the Bureau does not engage in transactions covered by HIPAA.

We have not found anything in the laws or regulations that specifically mentions Fire Bureau operations, particularly the EMT aspects of those operations. This includes the official comments accompanying the regulations, the legislative history, the “Q and A’s” issued by the Department of Health and Human Services (HHS), the numerous commentaries, educational materials, or legal summaries that have been published regarding the regulations. There is no direct answer to the question of whether the medical work of a Fire Bureau is included within the scope of HIPAA.

The Office of Civil Rights has been designated as the agency that will enforce the Privacy regulations. Their guidance² provided no definition or further clarification for “Emergency Medical Provider,” “Ambulance,” “First Responder,” or “First Aid.” All references to “encounter information” were under the Final Transaction and Code Sets Rule for standardization and appear to relate to the codes for administrative simplification.

Steve Wirth and Doug Wolfberg of Page, Wolfberg & Wirth, LLC are widely recognized and the leading authority on the EMS industry. In an online article dated June 2003, they offer examples of covered and non-covered entities. Their example of a non-covered entity is:

A municipal fire department provides a First Response service in its community. While the department initiates patient care (thereby providing direct treatment to the patient), the department neither transports nor bills the patient’s insurance or Medicare for services rendered. The First Response service is not a covered entity.³

Research of Fire Departments acting in accordance with HIPAA regulations across the country yielded many. However, they all indicated that the HIPAA “hook” was their  billing for services.µ

CONCLUSION: We emphatically believe that the HIPAA regulations do not apply to the Fire Bureau. However, we may not have a definitive answer until such time as the regulations are further clarified by Congress or the Department of Health and Human services, or case law develops from the imposition of a fine or a criminal prosecution.

RECOMMENDATIONS:

1) Until the federal agencies involved with HIPAA issue clarifying guidance on the applicability of the Privacy regulations to first responders, we believe it would be prudent for the Bureau to develop a uniform and consistent policy regarding patient confidentiality. First of all, there are significant civil fines (up to $25,000 per person per year for each type of violation) and even criminal penalties (up to 10 years in prison and a $250,000 fine) that can result from non-compliance. Secondly, recent word from Health and Human Services indicates that enforcement of the HIPAA regulations will be complaint driven. The Bureau (and the City) will have to defend itself on compliance issues on a case by case basis.

2) Create the computer and physical firewalls that will assure that no one other than those determined above have any access to the medical records.

3) Establish policies and procedures so that these records are handled and disclosed in a consistent manner.

DLJ:CCJ

c: Julie Kennedy

Chief Ed Wilson

Yvonne Deckard

Anna Kanwit

Cheri Greenwood

Health plan means an individual or group plan that provides, or pays the cost of, medical care (as defined in section 2791(a)(2) of the PHS Act, 42 U.S.C. 300gg-91(a)(2)).

(1) Health plan includes the following, singly or in combination:

(i) A group health plan, as defined in this section.

(ii) A health insurance issuer, as defined in this section.

(iii) An HMO, as defined in this section.

(iv) Part A or Part B of the Medicare program under title XVIII of the Act.

(v) The Medicaid program under title XIX of the Act, 42 U.S.C. 1396, et seq.

(vi) An issuer of a Medicare supplemental policy (as defined in section 1882(g)(1) of the Act, 42 U.S.C. 1395ss(g)(1)).

(vii) An issuer of a long-term care policy, excluding a nursing home fixed-indemnity policy.

(viii) An employee welfare benefit plan or any other arrangement that is established or maintained for the purpose of offering or providing health benefits to the employees of two or more employers.

(ix) The health care program for active military personnel under title 10 of the United States Code.

(x) The veterans health care program under 38 U.S.C. chapter 17.

(xi) The Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)(as defined in 10 U.S.C. 1072(4)).

(xii) The Indian Health Service program under the Indian Health Care Improvement Act, 25 U.S.C. 1601, et seq.

(xiii) The Federal Employees Health Benefits Program under 5 U.S.C. 8902, et seq.

(xiv) An approved State child health plan under title XXI of the Act, providing benefits for child health assistance that meet the requirements of section 2103 of the Act, 42 U.S.C. 1397, et seq.

(xv) The Medicare + Choice program under Part C of title XVIII of the Act, 42 U.S.C. 1395w-21 through 1395w-28.

(xvi) A high risk pool that is a mechanism established under State law to provide health insurance coverage or comparable coverage to eligible individuals.

(xvii) Any other individual or group plan, or combination of individual or group plans, that provides or pays for the cost of medical care (as defined in section 2791(a)(2) of the PHS Act, 42 U.S.C. 300gg-91(a)(2)).

(2) Health plan excludes:

(i) Any policy, plan, or program to the extent that it provides, or pays for the cost of, excepted benefits that are listed in section 2791(c)(1) of the PHS Act, 42 U.S.C. 300gg-91(c)(1); and

(ii) A government-funded program (other than one listed in paragraph (1)(i)-(xvi)of this definition):

(A) Whose principal purpose is other than providing, or paying the cost  of, health care; or

(B) Whose principal activity is:

(1) The direct provision of health care to persons; or

(2) The making of grants to fund the direct provision of health care to persons.

Health care clearinghouse means a public or private entity, including a billing service, repricing company, community health management information system or community health information system, and “value-added” networks and switches, that does either of the following functions:

(1) Processes or facilitates the processing of health information received from another entity in a nonstandard format or containing nonstandard data content into standard data elements or a standard transaction.

(2) Receives a standard transaction from another entity and processes or facilitates the processing of health information into nonstandard format or nonstandard data content for the receiving entity.

° 45 CFR § section symbol  160.103 (defining “covered entity”)

± 45 CFR § section symbol 162.1101

² http://www.hhs.gov/ocr/hipaa/privacy.html

³ http://www.merginet.com/index.cfm?searched=admin</ul>management/legal/HIPAAPrivacy.cfm.

µ Lincoln , Massachusetts , St. Joseph Township , Fort Wayne , Indiana , Austin/Travis County Emergency Medical Services, Shiller Park , Illinois , Charleston County South Carolina, Tualitin <cm+NT[thomas-m]: ? spelling? -NT>Valley Fire & Rescue, Beaufort County South Carolina , Munson , Ohio , Andover , Connecticut , Miami Florida Department of Fire-Rescue, Pewaukee Fire Department Waukesha , Wisconsin , Tampa Fire Rescue, Tampa , Florida ;

Oregon Court of Appeals rules Portland Police disciplinary records in Kendra James case are open

FILED: June 1, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CITY OF PORTLAND,
an Oregon municipal corporation,

Appellant,

v.

OREGONIAN PUBLISHING COMPANY,

Respondent.

0310-11712; A124262

Appeal from Circuit Court, Multnomah County.

Michael C. Zusman, Judge pro tempore.

Argued and submitted February 1, 2005.

Harry Auerbach argued the cause for appellant. On the brief was Tracy Pool Reeve.

Charles F. Hinkle argued the cause and filed the brief for respondent.

Before Wollheim, Presiding Judge, and Edmonds* and Schuman, Judges.

SCHUMAN, J.

Affirmed.

*Edmonds, J., vice Ceniceros, S. J.

SCHUMAN, J.

The Circuit Court of Multnomah County, affirming an order of the county’s district attorney, ordered the City of Portland to produce certain documents relevant to the investigation and discipline of a police officer who killed a civilian during a traffic stop. The city argues that the benefit flowing to the public from nondisclosure–namely, that public employees will be more likely to evaluate their supervisors, subordinates, and colleagues with candor if they know the evaluation will not be made public–clearly outweighs the benefit flowing to the public from disclosure itself. ORS 192.502(1). We disagree with the city, and therefore we affirm.

The following facts were included in material that has already been disclosed to the public, and they are not disputed in this appeal. On May 5, 2003, Portland Police Officer Bean made a traffic stop of a car carrying a driver and two passengers. One passenger, Kendra James, was riding in the back seat. When Bean discovered that the driver could not produce a license and that both passengers had outstanding arrest warrants, he decided to take all three occupants into custody. Officer McCollister, the police officer whose disciplinary investigation generated the documents at issue in this case, and another officer answered Bean’s call for assistance. After the driver was taken into custody, Bean attempted to arrest James. She locked the door and refused to get out of the car. When Bean tried to reach through an open window to unlock the door, James climbed from the back seat into the front seat and turned on the ignition. All three officers ran toward the driver’s door. McCollister arrived first. As he tried to pull James out, he leaned into the car, putting most of his body weight inside.

James struggled. McCollister attempted to subdue her with pepper spray, but either the cannister malfunctioned or he did not find the trigger. He then tried to gain control of her with a “hair hold,” but that tactic failed because James was wearing a wig-like hair weave that came off in McCollister’s hand. At that point, James shifted the car into gear and started to drive away. Because of his position halfway inside the car, McCollister believed that, unless he could stop the car, he would fall out and be either dragged or run over. He unholstered his gun and ordered James to turn off the ignition. When James did not comply, McCollister then shot her one time. McCollister then fell out of the car unhurt. When the car stopped a few yards away, the officers removed James, laid her on the pavement, and handcuffed her. She died shortly thereafter.

An internal Portland Police Bureau investigation of McCollister ensued, resulting in the imposition of a disciplinary sanction: 900 hours unpaid leave. After the city disclosed the contents of the letter from then Chief of Police Mark Kroeker to McCollister informing him of the sanction, the Oregonian Publishing Company (the Oregonian), invoking the Oregon Public Records Law, ORS 192.410 to 192.505, formally requested that the City of Portland produce other documents related to the shooting. Specifically, the Oregonian requested “the documents that fill the gap between the criminal investigation and the disciplinary letter to McCollister.” The city refused, and the Oregonian exercised its statutory right to obtain review by the Multnomah County District Attorney. ORS 192.450 – 192.460. District Attorney Schrunk issued a letter ordering the city to produce the requested records with a few specified redactions. The city then filed this action in Multnomah County Circuit Court, id., seeking a declaration that the city was not required to disclose the documents. Both parties moved for summary judgment. The court granted the Oregonian’s and denied the city’s. The city appeals.

Under ORS 192.420(1), “Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.501 to 192.505.” The city argues that it need not disclose the documents at issue in this case because of the exemption in ORS 192.502(1):

“Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.” (1)

When a public body withholds public records from disclosure, that body carries the burden of sustaining that action on appeal. ORS 192.490(1); Kluge v. Oregon State Bar, 172 Or App 452, 455, 19 P3d 938 (2001). Therefore, the city has the burden in this case.

That burden is daunting. Oregon has a “strong and enduring policy that public records and governmental activities be open to the public,” Jordan v. MVD, 308 Or 433, 438, 781 P2d 1203 (1989), a policy embodied in a statutory presumption that documents will be disclosed to the public. ORS 192.420. Exemptions from disclosure are to be narrowly construed. Oregonian Publishing v. Portland School Dist. No. 1J, 144 Or App 180, 184, 925 P2d 591 (1996), aff’d on other grounds, 329 Or 393, 987 P2d 480 (1999). Further, the exemption at issue in this case does not impose an evenly weighted balancing test; the city must prove that the public interest in nondisclosure “clearly” outweighs the interest in disclosure.

The city relies primarily on the affidavit of the Portland Chief of Police, Derrick Foxworth, (2) in which he makes the following argument:

“I strongly believe that in order to encourage greater candor and critical self-evaluation, Bureau members need to feel comfortable that honest, candid assessments will be used solely to improve the performance of a particular employee (through disciplinary action should that be necessary) or to assist in improving the performance of the Bureau as a whole. In my opinion, public disclosure of records of the type at issue in this case would have a chilling effect on the free flow of frank, uninhibited advice and self-critical observations within the Bureau.”

In addition, Foxworth’s affidavit cites a report by the Police Assessment Resource Commission (PARC) concluding that there was anecdotal evidence that Bureau members were “hesitant to be critical” in after action reports and that “[p]eople are afraid to ask hard questions. People are afraid to hurt feelings.”

Although we do not disagree that most people may be more willing to make candid statements when they know the statements will remain confidential, we are unpersuaded that, in this case, the benefits of confidentiality clearly outweigh the benefits of disclosure. First, we observe generally that, although people may be more candid when they know that their statements will not be disclosed to the public and, in particular, to the people about whom the statements are made, they are also more likely to be vindictive, careless, or speculation–and therefore unreliable.

Second, and more importantly, like the district attorney and the trial court, we have reviewed the requested documents in camera and find that they contain nothing that could cause a chilling effect of such magnitude as to outweigh the benefit to be reaped by allowing the public to determine whether a full, frank, and thorough investigation of this highly inflammatory and widely reported incident occurred. Because our decision in this case may not be the last word, we will not moot the potential for a meaningful Supreme Court review by disclosing the contents of the documents. We can, however, describe them generally.

They consist of three items: an “after action memorandum” from Officer McCollister’s supervisor, Commander Bret Smith, addressed to then Assistant Chief Foxworth; a “confidential memorandum” from the “Review Level Committee” containing recommendations to Chief Kroeker; and logs kept by the Review Level Committee reflecting how each member voted on questions relating to whether McCollister violated Police Bureau procedures and what his sanction should be. We describe each in turn.

Smith, Commander of the North Precinct, submitted a lengthy after action memorandum to Foxworth. It includes an overview of the goals of police missions and the procedures used to complete them; a step-by-step analysis of the James shooting incident; and a frank assessment including his opinions and perspectives on what occurred and what should have occurred. A section entitled “Physical Evidence,” in which the evidence from the scene, particularly the gun powder patterns, is assessed in comparison to witness statements, is included as an attachment to the memorandum. Also attached is a set of diagrams illustrating the officers’ positions during the traffic stop and applicable general orders and statutes.

The Review Level Committee (Foxworth, Assistant Chief Lynnae Berg, Assistant Chief Andrew Kirkland, and Commander Bret Smith) submitted a confidential memorandum to Chief Kroeker. It is two pages long; most of the second page was ordered redacted and the Oregonian does not contest that decision. The remaining material identifies in general terms some procedures and policies “identified * * * for internal review and action.” It does not mention any officers or incidents by name.

After the full review of the incident, each of the four members of the Review Level Committee voted on whether he or she believed that McCollister or the other officers had conducted themselves according to bureau policies and procedures and on what they thought was the appropriate level of discipline. The Oregonian requests disclosure of the voting logs that pertain to McCollister.

None of these documents contains material the disclosure of which would have a seriously chilling effect on future investigations, particularly in light of the fact that the description of events, the findings, and the discipline imposed were already disclosed before the Oregonian made its request. No otherwise anonymous whistle blower is identified; no personal criticism (as opposed to findings regarding which actions fell outside of bureau policies) is leveled. Supervisory personnel render judgments, but they are clinical and detached. To conclude that public disclosure of such judgments, made pursuant to supervisory duties, would discourage future candor is an insult to the supervisors themselves.

The city argues that the need for confidentiality in the present case is weightier than normal: “[I]t is particularly in ‘high profile’ cases that recognizing [the exemption in ORS 192.502(1)] will do the most good in encouraging * * * self-critical investigation and analysis[.]” (Emphasis in original.). That may be. It is beyond dispute, however, that the public’s (and the police bureau’s) need to have complete confidence that a thorough and unbiased inquiry has occurred is most urgent and compelling in “high profile” cases where a police officer has killed a citizen in the line of duty. That confidence comes from transparency and its value is not outweighed by the speculation that transparency will quell candor at some future date. This is not a close case. (3)

Affirmed.

1. In its petition to the district attorney and in its complaint in circuit court, the city also claimed exemptions under ORS 192.501(12) and ORS 181.854. The former exempts “[a] personnel discipline action, or materials or documents supporting that action” unless the public interest requires disclosure in the particular instance. The latter prohibits disclosure of “information about a personnel investigation of a public safety employee * * * if the investigation does not result in discipline of the employee.” In its counterclaim in circuit court, the Oregonian sought disclosure of the requested documents and it renewed that request in its motion for summary judgment without reference to particular statutes. On appeal, the city assigns error only to the trial court’s conclusion “that the City failed to demonstrate that, under ORS 192.502(1), in this instance, the public interest in encouraging frank communication * * * outweighs the public interest in disclosure of the records sought by Oregonian.” Therefore, this appeal raises no issue regarding ORS 192.501(12) or ORS 181.854.

Return to previous location.

2. At the time of the incident and investigation, Foxworth was Assistant Chief of Police. He was a participant in the review of McCollister and his voting log is one of the documents the Oregonian wants the city to disclose.

Return to previous location.

3. Although the city states in the first paragraph of its brief (“Nature of the proceeding and the relief sought”) that it “seeks reversal of the trial court’s order granting Oregonian’s petition for costs and attorney fees pursuant to ORS 192.490(1),” the brief contains neither an assignment of error nor any argument regarding costs and fees. We therefore leave the trial court’s award undisturbed.

Return to previous location.

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Related posts:

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

Several courts have ruled that defendants’ mental health reports are public

Rulings opening mental health reports in criminal trials

The Oregonian has won rulings in three Oregon counties (Multnomah,

Tillamook and Lincoln) that mental health reports ordered by the court

to determine the competency of a defendant to stand trial are public

under the open courts provisions of the state Constitution. Here is one

such ruling in the case of State v. Morris (note that the defendant

specifically is notified that there is no confidentiality). The evaluation follows the court ruling:

David W. Hantke Circuit Judge(503) 84.2-8014 Ext. 114

Rick W. Roll, Circuit Judge (503) 842-2598 Ext. 112

CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF TILLAMOOK

Tillamook County Courthouse

201 Laurel Avenue

Tillamook, Oregon 97141

Trial Court Administrator (503) 842-2596 Ext. 124

Calendering (503) 842-7914 Ext. 110

FAX (503) 842-2597

January 2, 2004

William B. Porter, Tillamook County District Attorney

Office of the Tillamook County District Attorney

201 Laurel Avenue

Tillamook, OR 97141

Glenn Faber, Attorney at Law

Moberg, Canessa, Faber & Hooky, P.C.

842 Broadway

Seaside, OR 97138

Charles M. Fryer

Attorney at Law

101 SW Washington

Hillsboro, OR 97123

Charles F. Hinkle, Attorney

Stoel, Rives, LLP

900 SW 5th Avenue, Suite 2600

Portland, OR 97204

Re: State of Oregon vs. Edward Paul Morris Tillamook County

Circuit Court Case No.: 02-1283

On December 1, 2003, oral argument was heard on the Oregonian

Publishing Company’s Motion to Unseal the reports prepared by. Dr

George Suckow, Dr. Richard Hulteng and the Oregon State Hospital

regarding the defendant’s capacity to proceed pursuant to ORS 161.360

and ORS 161.365.

During oral argument, defendant objected to release of the

reports claiming the psychotherapist-patient privilege pursuant to OEC

504. Following oral argument, the Court permitted the Oregonian to file

additional argument to address the psychotherapist-patient privilege.

With regard to the privilege, the burden rests with the

defendant to show that he and the information sought to be protected are

within the ambit of the privilege. In its Memorandum regarding the

privilege, the Oregonian identifies three (3) reasons why the defendant

cannot meet the burden.

Taking the Oregonian’ s third argument first, the Oregonian

argues that the reports fall within a general exception of the

psychotherapist-patient privilege under OEC 504 (4)(b)(A) in that the

communications are relevant to the issue of the mental or emotional

condition of the defendant in a proceeding in which the defendant relies

on the condition as an element of his claim or defense. However, as was

argued by Mr. Faber on December 1, 2003, the defendant’s capacity to

proceed is not a claim or defense. ORS 161.365(1) provides that whenever

the Court has reason to doubt the defendant’s fitness to proceed by

reason of incapacity, the Court may call to it’s assistance in

reaching it’s decision, any witness and may appoint a psychiatrist or

psychologist to examine the defendant and advise the Court. In this

case, Dr. Hulteng’s report was submitted to the Court, providing the

Court with reason to doubt the defendant’s fitness to proceed. The

State then requested that Dr. George Suckow evaluate the defendant,

which was done. Finally, the Court had the defendant evaluated at the

Oregon State Hospital. The exception contained in OEC 504(4)(b)(A) does

not apply.

However, the other two (2) arguments made by the Oregonian have

merit. Specifically, that the reports were prepared for the purpose of

drawing the Court’s attention to the issue of the defendant’s

fitness to proceed and assist the Court in evaluating the defendant’s

capacity to procee

d. Although communications made to Dr. Hulteng may

have been confidential communications made for the purpose of diagnosis

or treatment of the defendant’s mental or emotional condition, the

submission of the report to the Court would constitute a waiver of any

privilege as to the contents of the report and for the purpose of

determining the defendant’s capacity to proceed. As to Dr. Suckow’s

report and the Oregon State Hospital report, there would be no

confidential communication issue in that the defendant participated in

the evaluations understanding that the reports were for the Court’s

use in  determining the defendant’s capacity to proceed and each was

intended to be disclosed to at least the Court and the State. In any

event, any privilege was waived as to the contents of the reports when

submitted to the Court.

Even if the psychotherapist-patient privilege applied and was

not waived, it is this Court’s opinion that Article 1, Section 10 of

the Oregon Constitution requires that the reports be unsealed. Although

in this case there was no testimony taken nor formal Court proceeding

held, the three (3) reports were used by the Court, pursuant to

agreement of the parties, in reaching its decision on whether or not the

defendant had the capacity to proceed. Therefore the Court relied upon

the reports in reaching its decision and the reports were filed with the

Court for the purpose of allowing the Court to carry out its role in

“administering justice” under Article 1, Section 10.

If the reports were to be received in evidence at a formal

hearing to determine the defendant’s capacity and testimony were taken

from the doctors or other persons, the public would have a right to be

present at that hearing and then would have access to the testimony and

the reports.

What would have been public in a Court hearing should not be

allowed to be kept secret when the Court relied on the same information

in reaching its decision.

Finally, the Court must balance the public’s right of access

to the reports against the defendant’s ability to receive a fair

trial.   One interest of the public is to know that their Courts are

operating in a lawful manner. There may be no other way to accommodate

this interest without disclosure of materials relevant to the purpose of

the Court proceeding. In this case that would be the determination of

the Defendant’s capacity to proceed.

However, there may be a way to accommodate the Defendant’s

ability to receive a fair trial by allowing time to pass between

allowing public access to the records and through the use of voir dire.

Since it appears the Defendant’s interests can be appropriately

protected, the balance tilts in favor of the public’s right to access.

The Oregonian’s Motion is allowed.

DAVID W. HANTKE

CIRCUIT COURT JUDGE

DWH/mh

Department of Human Services

Oregon State Hospital

2600 Center Street NE

Salem, OR 97301-2682

(503) 945-2800 (Voice)

(503) 945-2996 (TTY)

FAX (503) 945-2807

FILED

CIRCUIT COURT

TILLAMOOK COUNTY STATE COURTS

2003 AUG 14 PM  1:08

TRIAL COURT ADMINISTRATOR

BY

August 12, 2003

The Honorable David W. Hantke

Tillamook County Courthouse

201 Laurel Avenue

Tillamook, Oregon 97141

RE: MORRIS, Edward

OSH#: 69987

WARD: COE

Dear Judge Hantke:

Please find enclosed the report of the evaluation on the

above-named individual.

If you have any questions, please do not hesitate to contact the

author of the report, who can be reached at the telephone number listed

at the top of this page.

Sincerely,

Steven Fritz, MD

Chief Medical Officer

Oregon State Hospital

SF/rp

Encl.

03-07-15.COV/087.WRD/69987

OREGON STATE HOSPITAL

REPORT OF EVALUATION

NAME: MORRIS, Edward

OSH#: 69987

TYPE: Court Ordered Evaluation

UNIT: Forensic Evaluation Service

DATE OF REPORT: 8/4/03

DATE OF EVALUATION: 7/15/03

DOCKET NUMBER(S):02-1283

IDENTIFYING INFORMATION: This is the first Oregon State Hospital

referral for Mr. Edward Morris, a 38-year-old widowed white male, born

on March 10, 1965. He is charged with seven counts of Aggravated Murder,

an unclassified Measure 11 felony in Tillamook County Circuit Court. The

defendant was referred for a 30-day inpatient evaluation of his ability

to aid and assist in his own defense pursuant to Oregon Revised Statute

(ORS) 161.365, in an order dated June 20, 2003, signed by the Honorable

David W. Hantke.

EVALUATION PROCEDURES AND INFORMATION: The defendant was

interviewed by Carlene Shultz, PsyD, on July 15, 2003, for five hours

and 35 minutes and an additional 50 minutes for psychological testing on

July 16, 2003, at the Oregon State Hospital Forensic Evaluation Service.

Present throughout the first three and a half hours of the evaluation

was Gail Mason, PhD, as an observer. Additional information considered

in this evaluation included:

1. Tillamook County Court documents, including an indictment

dated January 23, 2003.

2. A factual brief of the case provided by William B. Porter,

District Attorney for Tillamook County, in a phone conversation on July

17, 2003, for 50 minutes.

3. Law Enforcement Data System (LEDS) criminal history sheets.

4. A report from jail medical staff to Linda Brandeberry, LCSW,

on June 23, 2003.

5. A Psychological Report by Richard J. Hulteng, JD, PhD, dated

May 28, 2003.

6. A Psychiatric Report by George R. Suckow, MD, dated June 6,

2003.

7. Summary and case notes by Teresa Shelby, MD, for visits on

February 28, 2003, April 11, 2003, and May 23, 2003.

8. A letter written by the defendant, dated April 24, 2003.

9. Raw psychological test data obtained by Dr. Laura Sebastian

for prior Minnesota Multiphasic Personality Inventory ­ Second Edition

(MMPI-2) and Rorschach administrations.

10. Minnesota Multiphasic Personality Inventory ­ Second

Edition, completed July 11, 2003.

11. Personality Assessment Inventory (PAI), completed July 11,

2003.

DOCUMENTTION-EVALUATION

OSH-STK: 75069-MR 1-3/2002

MR#: 62-00-0779-00

NAME: MORRIS, Edward

OSH#:69987

TYPE: Court Ordered Evaluation

UNIT: Forensic Evaluation Service

DATE OF REPORT: 8/4/03

DATE OF EVALUATION: 7/15/03

DOCKET NUMBER(S):02-1283

PAGE: 2

12. Structured Interview of Reported Symptoms (SIRS),

administered July 15, 2003.

13. Rorschach Inkblot Test, administered July 16, 2003.

14. MacArthur Competency Assessment Tool ­ Criminal

Adjudication (MacCAT-CA), administered July 15, 2003.

15. Phone conversation with Chuck Fryer, counsel for the

defense, for 30 minutes on July 14, 2003.

16. Phone conversation with Richard J. Hulteng, JD, PhD, on July

21, 2003, for 90 minutes.

17. Phone conversation with George Suckow, MD, on July 21, 2003,

for 15 minutes.

18. A note written by the defendant to the evaluator on July 18,

2003.

19. Consultation with the Ward 48C Interdisciplinary Treatment

Team (IDT).

20. The Oregon State Hospital record for the current inpatient

psychiatric admission.

21. Evaluation observations by Gail Mason, PhD, dated July 25,

2003.

NOTIFICATION OF RIGHTS: Prior to interview, the defendant was

advised of his rights and of the limits of confidentiality.

Specifically, he was informed of his right to refuse to answer questions

and to consult with his attorney or to have his attorney present during

the interview. He was told that none of the information he provided

would remain confidential and that a report of the evaluation results

would be sent to the court and the attorneys in the case. The defendant

expressed a clear understanding of these rights, including his right to

have his attorney present as “there might be all kinds of sensitive

questions asked that a

person might not be in their best interest to

answer.” He further reported a conversation with his attorney in which

his attorney had advised him to proceed with the evaluation without his

attorney present.  Mr. Morris indicated that he understood his rights,

signed the Patients Right form, and agreed to proceed with the

interview.

BACKGROUND INFORMATION: The following information was obtained

from the defendant’s self-report and available records.

SOCIAL/DEVELOPMENTAL HISTORY: The defendant, Mr. Edward Morris,

was born and raised in Portland, Oregon, by his mother and her parents

as his parents divorced when he was 2 years of age. He describes his

mother as “a very nice overweight woman.” He reports having had a

stepfather as a

DOCUMENTATION-EVALUATION

OSH-STK 75069-MR 1-3/2002

MR#: 62-00-0779-00

CONFIDENTIAL

George R. Suckow

Physician

773 Linda Ave NE

Keizer, OR 97303-4549

June 6, 2003

William B. Porter

District Attorney

Tillamook County Courthouse

201 Laurel Ave

Tillamook, OR 97141

RE: Edward Paul Morris

Dear Mr. Porter:

At your request I conducted a psychiatric evaluation of Edward

Paul Morris on June 3, 2003 at the Tillamook County Correctional

Facility in a conference room. Present were myself, Mr. Morris, his

attorney Charles M. Fryer and yourself, William Porter, District

Attorney of Tillamook County. Prior to examining Mr. Morris he was

advised of his rights including the right to remain silent, knowledge

that anything he said could be used in a court of law, the right to

consult his attorney before making any statement, the right to ask his

attorney to be present (he was), the right to not discuss or answer any

question at any time and to understand that there is no privilege or

confidentiality between doctor and patient in a court-ordered or

forensic examination. Mr. Morris understood those rights and consented

to proceed.

Prior to the interview I was asked by Mr. Fryer not to inquire

into the charges pending against Mr. Morris other than his knowledge of

what he might be accused of.

Prior to examining Mr. Morris I also had the opportunity to

review a report by Richard J. Hulteng, JD, Ph.D. concerning his

examinations of Mr. Morris; the report being dated May 28, 2003. I had

previously been furnished by you with transcripts of interviews of Mr.

Morris and had previously reviewed them, dated January 4, 2003 and

January 4, 2003 approximately three hours earlier. I also reviewed a

copy of Mr. Morris’ military records and an affidavit for a search

warrant dated December 23, 2002 concerning the investigation of the

offense for which Mr. Morris is currently charged. I also reviewed a

copy of a letter written by Mr. Morris on Thursday the 24th of April,

2003.

Diagnosis:

Axis I: v71.09, no diagnosis

Axis II: 301.9, personality disorder, mixed

No related posts.

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.

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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[.]”

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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).

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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.”

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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.

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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.

Return to previous location.

——————————————————————————–

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.

Return to previous location.

——————————————————————————–

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.

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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

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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

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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

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