*1 April December Argued reversed and remanded and submitted COLBY, Craig Plaintiff-Appellant, GUNSON, Karen Examiner, State Medical Defendant-Respondent. Court
Marion
Circuit
County
06C15785; A133979
Kaye Senior Assistant Attorney General, argued the cause for With her respondent. on General, brief were Hardy Myers, Attorney and H. Mary Williams, Solicitor General. Edmonds,
Before Presiding Wollheim, and Judge, Judge, Sercombe, Judge. SERCOMBE, J.
Wollheim, J., concurring.
SERCOMBE, J. defendant, the state This case concerns whether examiner, obliged copy was with supply plaintiff under report tests demanded autopsy laboratory The trial the Public Records ORS 192.410 192.505. dis- exempt court concluded that record was 192.502(9)(a), and a judgment closure under ORS entered judg- After dismissing complaint. review of plaintiffs law, App 133 Or Oregon, ment for errors of Withers v. State of con- den, 891 P2d rev we clude that the record not we reverse the judgment Accordingly, proceedings.
and remand for further allegations plead was based on judgment plaintiffs complaint. are taken from ings; largely facts killed 4, 2006, a Portland Police Officer shot and January On investigated Young’s compiled Defendant death and Young. of an and labora included results par was s рerformed Young5 tests on Plaintiff tory Young. was he ent, child, personal representative. Nor spouse, *3 the death. to criminal or civil for subject potential liability for of the Nonetheless, copy asked defendant plaintiff record to subject that was and was report, arguing public the report, Defendant refused to disclose inspection. public Plain it was from disclosure. concluding exempt public that to determine whether Attorney tiff the General petitioned report subject public inspection. the was denying plaintiffs The issued an order Attorney General petition. under ORS then instituted this proceeding
Plaintiff 192.450(2), an order defendant to disclose seeking requiring the court was Because the before report. only question the disclose defendant required whether relevant statutes pleadings. moved for on the report, judgment plaintiff 146.035(5), court that ORS The trial concluded ORCP B. reports examiner below, exempts autopsy discussed is report person seeking from disclosure unless public 146.035(5). Accord- in ORS within the class of listed the record exempt the court determined that was ingly, as a matter of law. under ORS disclosure court issued order defendant on the granting judgment judgment and entered a of dismissal. pleadings general Plaintiff appeals. report
Plaintiff contends that disclosure of the is required provision the Public Records Law. The core that law, 192.420(1), states that has a “[e]very person right any body record of a in this inspect state, otherwise ORS 192.501 except provided by expressly to 192.505.”1 Plaintiff argues report expressly is not 192.505, and, from disclosure exempt under ORS 192.501 to therefore, has a it. plaintiff ORS 192.501 and ORS 192.502 list categories of records are disclosure under Public Records Law. Defendant asserts that medical examiner are exempt from disclosure 192.502, under ORS which provides, part: following public “The are exempt from disclo- sure under ORS 192.410 to 192.505: iji % i|i
iji “(9)(a) Public records or information the which prohibited or or restricted otherwise made confi- dential or privileged under law.”
Defendant argues that disclosure of the laboratory report tests restricted which provides, in part:
“Any spouse, parent, personal representative child or deceased, any person may or criminally civilly who death, liable for the respectively, may or their authorized representatives copies any
examine and obtain of medical report, autopsy report laboratory report examiner’s ordered test a medical ORS 146.117.” parties dispute “public do is a record.” ORS 192.410(4)(a) “public record,” purposes defines of the Record “any writing relating pub include that contains information to the conduct *4 business, including records, mortgages, lic’s records, but not limited court and deed to owned, prepared, by public body regardless physical used or of retained law; “public body” form or The is a under characteristics.” medical examiner 192.410(3) “public “every only ORS defines to include state officer.” The issue bod/’ 192.420(1) partiеs concerning between the the enforcement of ORS is whether the report exempt “expressly provided medical examiner is as ORS disclosure 192.501 to 192.505.” 146.035(5) ambiguous, ORS to be
Defendant reads reports arguably limiting public access to medical examiner sug- only persons specified in the statute. Defendant to those necessary implication enumerating gests “[t]he of those may examine a medical-examiner individuals who deny inspection report right Defendant is to of others.” 192.502(9)(a) construed to that, reasons if ORS is allow reports persons, all medical examiner then examination of 146.035(5) meaningless. Finally, is defendant rendered legislative history on relies (House chapter Oregon section 4 Bill 2279), legislative intent to medical to confirm to allow access reports by legitimate those with interest examiner report, provide the medical examiner to but to discretion to explained inspection by conclude below, refuse others. As we 146.035(5) operation does not make the that requested report from disclosure under ORS 146.035(5) text to deter- first examine the of ORS We category type it mine if is the of law fits within the text of ORS laws defined 192.502(9)(a) exempts “[p]ublic rеcords or disclosure prohibited restricted information the disclosure ofwhich is or privileged or or otherwise made confidential question initial whether ORS Thus, law.” prohibits records or information restricts the disclosure of or privileged so or otherwise makes records confidential effect their nondisclosure. not face, on does have
At least its grants the described that effect. reports. The statute does certain medical examiner disclosing prevent the medical examiner from those
not person named in the law. ORS not not make a medical examiner сonfidential does penalize privileged, does the disclosure of a nor explicitly report.2 Because ORS does law, 146.780, By comparison, statute in the medical examiner another example regulating records. ORS 146.780 makes a law injuries by physicians mandatory reports the medical examiner of confidential provides: under ORS 146.750. ORS 146.780
671 reports prohibit restrict the disclosure ofmedical privileged, or make those records confidential 192.502(9)(a) scope is not within exemption. an
Defendant asserts that ORS has restricting implicit reports of effect of disclosure medical examiner brings pur- and that effect within this statute 192.502(9)(a). disagree view ofthe laws described ORS with We propositions, that that both creates implicit any implicit operation effect and that of a qualify to sufficient the law
Defendant reasons restricts grants to medical access examiner records because only persons to those to access certain and necessar- ily implies right. that other lack that Defendant statutory expressio construction, relies on maxim of unius expression est alterius, exclusio “the of is the of one exclusion qualified determining othеrs.” We the value of that maxim in statutory City County intent in State ex rel Powers Coos of Airport, App 222, 201 Or 234, 225, 119 rev den, P3d 341 (2005): “[B]oth we and the Court Supreme repeatedly have warned expressio unius
the bench and bar
is not
a rule of law
is instead a
guide
understanding legislative
but
intent.
* * *
applied
The maxim to
merely
‘is be
with caution and
auxiliary
an
legislative
rule to determine the
intention.’
City [Cottage]
al.,
Cabell et al. v.
et
Grove
256,
170 Or
see also Frank E. Horack
(1942);
Jr.,
Thus, the unius intent supplies, meaning corroborates, rather than to a statute. relating “Notwithstanding provisions ORS 192.410 192.505 accessibility records, confidentiality public inspection and provisions made under the of ORS are confidential and are 146.750 public inspection.” not accessible for Interpretation generally Dickerson, Reed See (1975) (citing expressio Application Statutes, 23 unius as of of “maxims example masquerade [that] inter- rules of doing nothing describing pretation while more than results means”). legislative completely If intent reached other regulate text an area can be inferred from the or context negates regulation necessarily law, then the statement theof a different rule. example, Hocking, v. Anchor 330 Or
For Waddill App recons, adh’d 78 P3d P3d to on pursue the issue was whether a defendant could 570 defense on
appeal plaintiff failed to state ultimate that complaint *6 in to constitute a facts the that were sufficient argued plaintiff claim. that the defense could be raised specified only at the manner in ORCP the times and in G(3) specifications did not rais- 21 and that the rule’s include ing appeal. time the defense for the first on The defendant adoption procedure argued rule, of civil that, before the the Oregon party raise defense of court decisions allowed to the appeal. to a claim the first time on The court failure state for G(3) manner concluded that ORCP 21 stated the exclusive party may adoption the of which the raise the defense because any procedure “superseded” civil different common rules deter- Id. It was in that context that the court law. at 384. specifica- expressio maxim, “the that, mined unius * * * limit of three indicates an intent to tion times which a those times party may at raise defense to those three Id. at 382. and to make the defense otherwise unavailable.” depended finding of on The exclusive effect legislative rule regulate procedure completely to civil intent parts law. other nothing or context of ORS There is text legislative perspective supplies on a similar suggests legislative purpose intent to ofthe statute that policy
completely state’s on disclosure of describe the As noted examiner records the terms ORS regulate earlier, does not the text of comprehensive policy. certainly not records, аnd it does state pro- of the medical examiner statutes do The remainder any purported comprehensive accompaniment to vide describing procedures production policy by for records
673 resolving about processes disputes disclosure.3
Instead, another statutory scheme, Records sets out state for the policies right records, including medical examiner copy public reports. Similar statutes existed before the of ORS adoption in Oregonian Publishing in 1973. As described Portland Dish 1J, School No. 398-99, Or 393, 329 987 P2d (1999):
“Oregon long-standing policy has access favor of public general records. The of legislative policy statement regarding public virtually unchanged records has remained years. for almost 140 originally granted An 1862 law any the statutory ‘inspect public citizens state, writing except of this provided as otherwise this 8, code or other Oregon, some statute.’ General Laws of ch 1845-1864). 707, (Deady p Although Legis- § the 1909 lature pose,’ that right persons having pur- limited ‘a lawful
Or legislature Laws ch deleted that years restriction general right later and restored the inspect any record, subject public statutory to certain exemptions, legislature 4. The § made a structural revision records law gathering reсords chapter organ- statutes into ORS izing the basic structure of the records law as it is today.”
Comprehensive on policy the disclosure of medical examiner *7 146.035(5) reports is found than someplace other ORS and its 146.035(5) statutory Thus, the neighborhood. setting of ORS does not that the suggest prescribes the exclusive means by production which of medical reports examiner may fact, process reports In a record nondisclosure examiner review medical 146.035(5) repealed by was HB 2279 when ORS was 1973. in Before the passage 1973, repealed by of HB ORS Or Laws ch former 35, provided persоn § that a who has been denied access to medical examiner reports “may compel provided to access the records in the manner ORS 432.130.” 25, provided ORS 432.130 amended that a § “court, petitioner record, proper if satisfied that the a direct and in the has interest directing authorizing inspection specified shall make an order and record ofthe 146.560(2) Moreover, petition.” implied medical exam that the former deny authority reports. repeal iner had access to to some medical examiner away any implied authority that statute in 1973 took оf the medical examiner to deny access. compelled. appropriate presume it is not to Therefore,
be applica- from text of alone effect expressio tion of unius maxim. argues, comprehen- nonetheless, that
Defendant 146.035(5), an sive nature of ORS access effect to allow and restrict reports, to medical examiner should be inferred meaning Defendant rea- because the statute lacks sons otherwise. reports that, if access medical to 146.035(5), persons if listed in the restricted ORS copies others, as well as can under thе obtain then ORS redundant Records allowing to the exists and has access otherwise ruges practical effect. a construction of ORS no Defendant gives meaning. some meaning application comes from the of ORS That 146.035(5) together parts of the Public Records with Law including public records, that examiner right access to disallow reports. earlier, As creates a noted including records, medical examiner “except expressly provided by reports, as otherwise 192.501 ORS 192.502 list cat- 192.501 192.505.” ORS egories exempt obligation of records that are from dis- exemptions At could the med- close. least two of those excuse obligation provide report ical examiner provides, part: requestor. 192.501 following public exempt “The from disclo- records are inter- to 192.505 unless sure under ORS 192.410 requires particular est disclosure in the instance:
* * * *
“(3)
compiled for criminal
Investigatory information
*”
* *
purposes.
law
exemption to shield records
have construed this
We
“balancing
investigations
upon
criminal
based
against
secrecy,” including protecting
purposes for
various
personal privacy.” Jensen v.
unwarranted invasion of
“an
(1976).
App
An
675 Similarly, provides exemption an ORS 192.502 apply requirement of disclosure that could to some medi- reports. provides, part: cal That statute followingpublic “The records are from disclo- sure under ORS192.410to 192.505:
* * [*] [*] “(2) personal of a such Information nature as but not kept personal, file, limited to that medicalor similar if public disclosure would constitute an inva- unreasonable privacy, public sion of unless the interest clear and con- requires vincing instance. particular evidence disclosure in the party seeking The disclоsure shall have the bur- showing public den of that disclosurewouldnot constitute privacy.” an unreasonable invasionof legal any effect of ORS is to override excuse not disclose medical examiner 192.501(3), might listed in the exist ORS parts or other of the Public Records Law. An exemption from disclosure under the Public Records Law require, allows, but does not nondisclosure of the record. As Publishing County noted in v. Dist., Guard Co. Lane School public body “[i]f 32, 37-38, P2d is justi satisfied that a claimed disclosure may, required fied, to, but is not withhold of the scope operation, Within information.” removes its any discretion not disclosе a medical examiner report legal available under the Public Records Law. That
effect statute undercuts defendant’s construction implied meaning ofthe to have law and broader because a reading practical consequence. literal of the statute no has
Moreover, defendant’s assertion that ORS implied exemption creates an from disclosure under the Pub way Oregon lic Records Law is with inconsistent courts exemptions scope construe determine that law and of Any exemption from disclosure. Public Records Law must be from disclosure undеr the
explicitly stated statute and merely implied by underlying policy law. public Public Records Law favors the disclosure records. “strong enduring policy ahas governmental open public.” activities be to the Jordan (1989). Consistently P2d 1203 MVD, 308 Or policy, creates a broad with this inspect “except expressly pro- otherwise *9 exemp- by ORS 192.505.” That means vided 192.501 to “expressly” stated the law. tions from disclosure must be 192.420(1) any implicit giving and ORS forbids effect meaning statutory exemption a from disclosure broader under ORS 192.501 to 192.505 of
than
what
statute
statutory
“expressly”
allows. That is no less true when
incorporates
еxemption
statutes, as
other
is the case with
192.502(9). Only
“express”
statutes,
effect
those
ORS
of
exemption analysis
ORS
well,
as
is
to the
relevant
146.035(5)
192.420(1).
rights
face,
creates
On its
copy
records. It does
examine and
certain medical examiner
expressly limit
records. There-
not
fore,
access to those
restrict
right
“express” exception
inspection
of
is
to the
there
no
provided
See Morrison
for those records
App 148, 152,
Or
struction ofthe Public Records Law
narrowly
Exemptions
con
from disclosure are
be
the rule.
Publishing
In
Co.,
37;
Or
see also
310
at
strued.” Guard
App 160, 168, 112 P3d
OHSU,
v.
199 Or
Animals
Defense of
(2005).
of a
A “narrow construction”
con
That “narrow
is one that favors disclosure.
ambiguity
applied
about
rule
resolve
struction”
scope
can
exemption.
statutory public
The “narrow
of
plausible
con
that, if there
construction” rule means
favoring
public records,
of a
disclosure of
struction
prevails. Here, a construction of
that is the construction
146.035(5)
creating,
only that views the statute
restricting,
cоpyrecords, and
rather than
preferred.
our
sum,
text ORS
to be
In
of
construing statutory exemptions
required
to the
method of
exemptions
to those
records confine
disclosure
are
exemptions by
preclude
explicitly
law and
stated
argument
implication.
that ORS
Defendant’s
implicitly
of medical examiner
restricts disclosure
reasons.
fails
those
under ORS
192.502(9)(a)
Finally,
supports
the context of ORS
is not a
referenced
the conclusion that
law
construing
exemption,
In
the statu
tory
methodology of PGE Bureau
Labor
construction
v.
Industries,
606, 610-12,
317 Or
The 1973 the two stat- controversy Oregon utes that the frame in this case. Laws chapter 794, codified the current structure of the right Public Records Law. The new law created inspect any public “except expressly pro- record as otherwise vided 11 of section this 1973 Act.” Or Laws prohibitions, Oregon § 3. One of the unconditional chapter ll(2)(h), exempted 794, section disclosure:
“Public records or information disclosure which is prohibited or restricted or otherwise made confidential or 7.211, privileged 1.440, 7.215, 41.675, 44.040, under ORS 57.850, 146.780, 179.495, 181.540, 173.230, 306.129, 308.290, 314.835, 314.840, 336.195, 341.290, 342.850, 344.600, 351.065, 416.230, 418.135, 411.320, 418.770, 419.567, 432.060, 432.120, 432.425, 432.430, 474.160,
476.090, 657.665, 706.720, 706.730, 483.610, 656.702, 715.040, 721.050, 744.017[.]” 731.264 or 192.500(2)(h) (1973) That was codified as precursor of ORS and is the Assembly separate legislation, Legislative
In examiner statutes. Or Laws medical rewrote 4(6) rights inspect created and ch 408. Section copy law reports and codified as certain medical examiner was is now with some modi- and 146.780, 29 of the 1973 law rewrote ORS fications. Section noted to injury confidentiality reports earlier, confirm the by physicians under ORS 146.750. the medical examiner parts of the 1973 medical examiner statutes were Those adopted Records at the same time as the 1973 Public subject pari matter, and read in relate to the same should be Poppen, and harmonized with each other. Bauer materia (1973) (public App 474, 478, 510 P2d records and adopted law in 1947 at the same time related “were * * * subject [and] matter should be and relate to the same harmonized”). pari and read in materia things significant purposes, are For our two medical statutes interaction of the text new exаminer First, the new med- the new Records Law in 1973. classify physician ical examiner statute continued to public inspection.” “not for But confidential and accessible protections medical exam- law did not include similar laboratory reports, autopsy reports, test results. iner a limited those Instead, the law created documents. specifically Law
Second, the new Public Records report confidentiality physician 146.780, classified statute in statutes, as one of the new *11 by exempt from mak- that make a record statutes restricting ing to the record. record or access the confidential classify did not the new Records Law But report 146.035(5), then numbered ORS access 192.500(2)(h) one of those statutes.4 ORS ORS (1973) as many among laws, as a law 146.780, other listed ORS 146.035(5) 146.035(6) 1987, Or in 1987. Laws was renumbered as ORS ORS 142, ch 1.§ a or making privileged.” record “confidential dis- public did list closure not former ORS law that or restricted access to a record. prohibited public (1973) Rather, legal effect of ORS was former disclosure of medical examiner require reports, autopsy reports, and test members of the laboratory family civilly criminally deceased and who be or liable may death, for the that the other- notwithstanding might records 1973, wise disclosure under Laws 794, section chapter 11. adoption 1973,
After Public Records Law in every legislative subsequent assembly amended ORS former 192.500(2)(h) to add to or correct the list of limiting laws or disclosure of restricting public creating records confiden- tial or privileged records. Statutes were added list to the See, e.g., had been adopted before 1973. Or 1975, Laws ch 308, 1 (adding 346.146, reference to ORS had § which been 1971, adopted 1971, 312, Or ch 4); 1977, Laws Or Laws § 587, ch 1 (incorporating 482.141, reference ORS which § 3). had been enacted in Or 1971, 1971, Laws ch In 195, addi- § 192.500(2)(h) tion, ORS was amended to add statute former Seе, adopted at the same e.g., legislative session. Or Laws 1975, ch 582, (adding reference to ORS to the list, § 722.414 a law 1975, 582, Or 113); Laws ch Or Laws § ch 92 (adding references to § ORS 40.225 to 40.295 priv- 32). ileges enacted § Between 1973 and 1987, legislature added new or previously enacted statutes to the list referenced former 192.500(2)(h) ORS six times. None of those laws references 146.035(6). ORS It is beyond dispute that former former categorized by was law 192.500(2)(h) exemption in prohibiting former restricting the disclosure record or creating con- fidence or legislature privilege. put former 146.035(6) on the list nor neither initially put among statutes added to the legislаtive list six subsequent Thus, sessions. between 1973 and regu- lated under what is now were not exempted from disclosure under predecessor
680 192.500(2)(h) list in ORS had 1987, the of statutes
By
in
than
references. As noted
from 39 to more
60
grown
(1985)
192.500(2)(h)
more
Oregonian Publishing, “ORS
listed
Oregon
than
statutes and
in
Revised
chapters
60 individual
to maintain as a
Statutes,
comprehensive
but it was difficult
amended, added, and
list
legislature
repealed
because the
each
affecting
during
laws
the disclosure of
result,
1987
146.035(5) exempted autopsy certain medical examiner public Any exemption from disclosure. such must be expressly implied. in scope stated and not is not within the trial court can determine whether the of ORS remand, On
requested record is exempt parts under disclosure other of the Public Records Law.
Reversed and remanded. concurring. WOLLHEIM, J., autopsy, thing I die, When and if there is an the last perfect stranger my autopsy report. I want is for a to review perfect stranger plaintiff, requested aHere to decedent, copy autopsy report ofthe from the medical examiner. That is wrong. Yet, follow, for reаsons that I with must concur majority result reached this case be proceedings. reversed and remanded for further Oregon’s This case arises under Public Records requested copy ORS 192.410 to 192.505. Plaintiff of the report, including copy autopsy medical examiner’s report laboratory performed on tests the decedent. Plain- request provides tiff based his on ORS right which “every person inspect any public has a record of a public body except provided by in this state, as otherwise examiner, ORS 192.501 to The medical 192.505.” Attorney plaintiffs General, all and the trial court denied argu-
request ing copy appealed, the documents. Plaintiff Law that the Public Records mandates disclosure the the autopsy laboratory performed report and on tests decedent. complex. basics, to the this case is not
Reduced
public
mandates
records unless
all
exempt
record is
from disclosure. Disclosure
Publishing
County
Dist,
Lane
rule. Guard
Co. v.
School
(1990);Kluge Oregon
Bar, 172
It the 1973 did be that strangers perfect disclosed to legislature both the deceased when statute. to the medical examiner and revisions Records Law But ch 408. 794; Or Laws exempt autopsy reports laws do not bers of the to mem-
public, including strangers perfect to the dece- legislature autopsy reports dent. If the does not want dis- strangers, up legislature closed to such then it is prohibit amend ORS some other disclosure. respectfully reasons, these
For I concur with by majority. result reached joins
Edmonds, J.,P. in this concurrence.