Bialostosky v. Cummings
| Decision Date | 27 April 2022 |
| Docket Number | A172134 |
| Citation | 319 Or.App. 352,511 P.3d 31 |
| Parties | Rory BIALOSTOSKY, an individual in pro se, Plaintiff-Appellant, v. Teri CUMMINGS, aka Theresa Cummings, in her official capacity as a West Linn City Councilor, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Nathan R. Morales, Portland, argued the cause for appellant. Also on the briefs were Julia E. Markley and Perkins Coie LLP.
Christopher K. Dolan argued the cause for respondent. Also on the brief were Timothy V. Ramis and Jordan Ramis PC.
Before Pagán, Presiding Judge, and Lagesen, Chief Judge, and DeVore, Senior Judge.*
This case requires us to decide whether defendant, an elected member of the West Linn City Council (the council), is herself a "public body" subject to the Oregon Inspection of Public Records law, ORS 192.311 - 192.478, and, if so, whether the notes that she made during her work as a councilor are public records that must be disclosed. Plaintiff sued defendant under Oregon's public records laws, seeking production of handwritten notes that defendant created while serving on the council. The trial court concluded that defendant was not a "public body" and, therefore, her notes were not "public records," as defined by ORS 192.311, and it entered summary judgment in defendant's favor. For the reasons explained, we conclude otherwise and reverse and remand.
The facts, as they relate to the determination of this appeal, are undisputed. Defendant was a city councilor for the City of West Linn. Plaintiff requested the opportunity to inspect and copy defendant's handwritten notes made during the course of her work as a West Linn city councilor. According to defendant, the notes were created during city council meetings, work sessions, goal-setting sessions, interview sessions, neighborhood association meetings, citizen advisory group meetings, and constituent meetings. Defendant conceded that she had created handwritten notes in her role as a city councilor, and that she was in possession of those notes at the time plaintiff made the requests.
Believing the records to be city records, plaintiff originally requested them from the West Linn City Recorder, who explained that the city did not have the requested records in its possession, but that the city had requested that defendant provide the records for plaintiff's inspection. Defendant then refused to provide the records because she did not believe that her notes were "public records" under ORS 192.311(5). The city told plaintiff that it was "not the custodian of the requested records" and therefore its response was complete. The city provided him with no documents. Plaintiff then sent defendant a direct request for the records. Defendant never responded to the request.
Subsequently, plaintiff filed this action for declaratory and injunctive relief under the Inspection of Public Records law, specifically ORS 192.427 and ORS 192.431.1
Soon after, plaintiff moved for partial summary judgment to establish the "notes and notebooks taken and maintained in [defendant's] official capacity as a West Linn City Councilor to be public records under ORS 192.311." Defendant responded and cross-moved for summary judgment on the basis that she could not constitute a "public body" under ORS 192.311(4). After a hearing, the trial court concluded that defendant was not a public body and granted defendant's motion.
On appeal, assigning error to both the denial of his motion for partial summary judgment and the grant of defendant's similar motion, plaintiff reprises his argument that defendant is a "public agency of this state," and therefore a "public body" under ORS 192.311(4). Alternatively, plaintiff contends that the West Linn City Council is itself a public body and that defendant's notes were "prepared, owned, used or retained" by the council, and thus are subject to disclosure.
In response, defendant contends that the text, context, and legislative history of ORS 192.311(4) support a far narrower meaning of "public body," one that excludes local elected officials such as defendant. According to defendant, the only natural persons subject to the Inspection of Public Records law are "state officers" and that as a local elected official, defendant is not a state officer. With the parties’ arguments and procedural posture in mind, we turn to our analysis.
Although this case was decided on cross-motions for summary judgment, the ultimate question of this case is one of statutory interpretation. Our duty when interpreting a statute "is simply to ascertain and declare what is, in terms or in substance, contained therein." ORS 174.010. We are not to rewrite a statute through additions or omissions, and where possible, we adopt a construction that gives effect to all provisions of a statute. Id. Our goal in construing a statute is to "pursue the intention of the legislature if possible." ORS 174.020. "In construing a statute, [a] court is responsible for identifying the correct interpretation, whether or not asserted by the parties." Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997).
In order to properly construe a statute, we employ the familiar framework set forth in PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d 1143 (1993), and State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009). In this framework, we begin with the text and context of a statute, and to the extent we deem it useful, the legislative history underpinning an enactment. Gaines , 346 Or. at 171-72, 206 P.3d 1042. If the legislature's intent is still unclear after our examination of the text, context, and legislative history, we may resort to general maxims of statutory construction to resolve any remaining uncertainty. Id. at 172, 206 P.3d 1042.
Turning to our construction of the relevant statute, we begin with the text. Whether defendant is a "public body" and whether her notes constitute "public records" depends on the interplay between two subsections in the definitional provisions of the Inspection of Public Records law.
The first subsection defines "public body" and provides:
" ‘Public body’ includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state."
Both parties agree that the text, on its face, does not unambiguously encompass an individual local elected official, like defendant; the local governmental entities listed appear to be just that: entities and not individuals. Defendant points to this fact, in addition to the provision's explicit reference to a "state officer," to argue that the legislature's omission of any reference to a local officer means that local officials are excluded from its coverage. Plaintiff points to the legislature's use of the word "includes" as indicative of a legislative intention that the list of covered bodies is not exclusive. Plaintiff further argues that the legislature's use of the word "agency" indicates an intention to include individual public officials as well as entities, noting that the definition of "state agency," contained in ORS 192.005(6)(a), includes "state officer[s]," an indication that the legislature views the word "agency" as encompassing individuals. In other words, in plaintiff's view, the word "agency" includes both individuals and entities, such that the legislature's use of it in several places in ORS 192.311(4) demonstrates a broad intention that individual public officials would qualify as public bodies.
As both parties’ readings of the statutory text are plausible, we turn to its context. As explained, that context points in the direction of plaintiff's reading because it points towards the conclusion that the legislature intended for ORS 192.311(4) to be a broadly inclusive provision.
Context includes prior judicial opinions interpreting a statutory provision, State v. Lam , 176 Or. App. 149, 154, 29 P.3d 1206 (2001), and the Supreme Court previously interpreted the provision at issue in State ex rel. Frohnmayer v. Oregon State Bar , 307 Or. 304, 307-08, 767 P.2d 893 (1989) (). In that case, the court indicated that, consistent with the use of the word "includes," the provision should be read broadly and inclusively. In its determination whether the Oregon State Bar, a "public corporation and instrumentality of the Judicial Department of the State of Oregon," constituted a "state agency" or an "other public agency of this state," the Oregon Supreme Court first observed that the definitions in the statute did not mention either "public corporation" or an "instrumentality." Id. at 307-08, 767 P.2d 893. The court observed that the definition of "state agency" in the statute is "inclusive and the examples given therein are illustrative rather than exclusive." Id. at 308, 767 P.2d 893. At the time, former ORS 192.410(2) (1987) provided that " ‘State Agency’ includes every state officer, agency, department, division, bureau, board and commission."2 The court then referred to a statute defining the status of the bar, ORS 9.010, to conclude that the bar was a state agency, because it was "an instrumentality of the Judicial Department, and *** it perform[ed] statewide functions on behalf of that department." Id. at 309, 767 P.2d 893.3
The Frohnmayer analysis points toward the conclusion that a city councilor is part of the "governing body" of a city. The present structure of the provision defining "public body" is identical to the prior structure of the provision defining "state agency." Compare ORS 192.311(4) with former ORS 192.410(2) (1987). Provided that identical structure, it would be inconsistent to construe present ORS 192.311(4) as "exclusive," while reading former ORS...
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