open oregon

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.

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

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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 ;

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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FILED: October 27, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CITY OF PORTLAND, a municipal corporation,

Appellant,

v.

DAVID ANDERSON and THE OREGONIAN,

Respondents.

(99711-09411; CA A101699)

Appeal from Circuit Court, Multnomah County.

Ann Fisher, Judge pro tempore.

Argued and submitted November 30, 1998.

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

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

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

BREWER, J.

Affirmed.

Deits, C. J., concurring.

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

BREWER, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Affirmed.

DEITS, C. J., concurring.

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

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

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

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

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

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

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Related posts:

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

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Lawyer-client privilege doesn’t apply to pure facts

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

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orr JUDGE ORDERS SAIF TO ANSWER QUESTIONS, TURN OVER RECORDS 07/03/2004 ======================================================================
THE OREGONIAN
Copyright (c) 2004, The Oregonian Publishing Company
Saturday, July 3, 2004
EDITION: SUNRISE
SECTION: LOCAL STORIES
PAGE: D03 LENGTH: 56 lines
HEADLINE: JUDGE ORDERS SAIF TO ANSWER QUESTIONS, TURN OVER RECORDS
BYLINE: JANIE HAR – The Oregonian
DATELINE: SALEM
TEXT:

Summary: The state-owned workers’ compensation insurer faces a separate hearing for not producing public records

Saif Corp. lost twice Friday when a Marion County judge ordered the state-owned workers’ compensation insurer to answer opponents’ questions and denied the agency’s request to keep certain records confidential.

Both orders are in advance of a hearing next month to determine whether Saif should be held in contempt for not producing records despite an appellate court decision last year ordering many of the agency’s business records to be made public.

The plaintiff is a nonprofit group financed mostly by Saif rival Liberty Northwest and represented by attorney John DiLorenzo.

Last month, DiLorenzo produced an affidavit by a former Saif employee who claimed top agency officials told him to delete public documents, prompting the contempt hearing.

On Friday, Circuit Judge Paul Lipscomb said Saif officials must answer DiLorenzo’s detailed questions about how the agency searched for documents to satisfy his public records requests and a subpoena from the state ethics commission.

DiLorenzo contends Saif officials failed to hand over documents that were produced for the ethics commission, and he wants to know why.

Michael Mueller, Saif’s top attorney, said the possibility that Saif used different methods to search for records has little bearing on the issue of whether the agency “willfully” hid public documents.

“The harm in it is that it allows Mr. DiLorenzo to continue to push this discovery process far outside of the boundaries of what this hearing is really about,” he said.

Lipscomb also ruled that the internal business records of Gard & Gerber, a private company that manages public relations for Saif, must be turned over to DiLorenzo.

A Saif attorneyargued that the documents — which include calendars, memos and notes — are the property of a private third party and are not shared with Saif officials. DiLorenzo contended that communications among Gard & Gerber employees may “indicate what documents were received from Saif or should have gone to Saif.”

“I find it patently unreasonable for Saif to take the position (that) documents that are parked off campus are not subject to public inspection when they involve” a public agency, DiLorenzo said.

Saif officials submitted affidavits to Lipscomb this week rebutting the accusation by Mark Cohen, a former public affairs employee, that top agency officials had ordered him to erase records to avoid making them public.

The officials also submitted a manager’s notes contending that Cohen’s job performance was poor and prompted them to ask him to resign in March.

No related posts.

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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2. Marion Judge orders SAIF to turn over records
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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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1. District attorneys in Baker County and Clackamas County order disclosure of notices of tort claims
2. Josephine County judge rules teacher resignation agreement is public
3. Multnomah District Attorney rules attorney-client privilege doesn’t apply to factual information

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