Colby v. Gunson

• Decision Date: 24 December 2008
• Docket Number: A133979.,06C15785.
• Citation: 224 Or. App. 666,199 P.3d 350
• Parties: Craig COLBY, Plaintiff-Appellant, v. Karen GUNSON, State Medical Examiner, Defendant-Respondent.
• Court: Oregon Court of Appeals

199 P.3d 350

224 Or. App. 666

Craig COLBY, Plaintiff-Appellant, v. Karen GUNSON, State Medical Examiner, Defendant-Respondent.

06C15785.

A133979.

Court of Appeals of Oregon.

Argued and Submitted on April 11, 2008.

Decided December 24, 2008.

Craig P. Colby, Portland, argued the cause and filed the briefs pro se.

Kaye Ellen McDonald, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

This case concerns whether defendant, the state medical examiner, was obliged to supply plaintiff with a copy of the autopsy and laboratory tests report demanded under the Public Records Law, ORS 192.410 to 192.505. The trial court concluded that the record was exempt from public disclosure under ORS 192.502(9)(a), and entered a judgment dismissing plaintiff's complaint. After review of that judgment for errors of law, Withers v. State of Oregon, 133 Or.App. 377, 382, 891 P.2d 675, rev. den., 321 Or. 284, 896 P.2d 1213 (1995), we conclude that the record is not exempt from disclosure under ORS 192.502(9)(a). Accordingly, we reverse the judgment and remand for further proceedings.

The judgment was based on allegations in the pleadings; the facts are largely taken from plaintiff's complaint. On January 4, 2006, a Portland police officer shot and killed Young. Defendant investigated Young's death and compiled a report that included the results of an autopsy and laboratory tests performed on Young. Plaintiff was not Young's parent, spouse, child, or personal representative. Nor was he subject to potential criminal or civil liability for the death. Nonetheless, plaintiff asked defendant for a copy of the report, arguing that it was a public record and was subject to public inspection. Defendant refused to disclose the report, concluding that it was exempt from public disclosure. Plaintiff petitioned the Attorney General to determine whether the report was subject to public inspection. ORS 192.450(1). The Attorney General issued an order denying plaintiff's petition.

Plaintiff then instituted this proceeding under ORS 192.450(2), seeking an order requiring defendant to disclose the report. Because the only question before the court was whether the relevant statutes required defendant to disclose the report, plaintiff moved for judgment on the pleadings. ORCP 21 B. The trial court concluded that ORS 146.035(5), discussed below, exempts medical examiner autopsy reports from public disclosure unless the person seeking the report is within the class of persons listed in ORS 146.035(5). Accordingly, the court determined that the record was exempt from disclosure under ORS 192.502(9) as a matter of law. The court issued an order granting defendant judgment on the pleadings and entered a general judgment of dismissal. Plaintiff appeals.

Plaintiff contends that disclosure of the report is required by the Public Records Law. The core provision in that law, ORS 192.420(1), states that "[e]very 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."¹ Plaintiff argues that the report is not expressly exempt from disclosure under ORS 192.501 to 192.505, and, therefore, plaintiff has a right to inspect it. ORS 192.501 and ORS 192.502 list categories of records that are exempt from disclosure under the Public Records Law. Defendant asserts that medical examiner reports are exempt from disclosure under ORS 192.502, which provides, in part:

"The following public records are exempt from disclosure under ORS 192.410 to 192.505:

"* * * * * "(9)(a) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law."

Defendant argues that disclosure of the autopsy and laboratory tests report is restricted by ORS 146.035(5), which provides, in part:

"Any parent, spouse, child or personal representative of the deceased, or any person who may be criminally or civilly liable for the death, or their authorized representatives respectively, may examine and obtain copies of any medical examiner's report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117."

Defendant reads ORS 146.035(5) to be ambiguous, arguably limiting public access to medical examiner reports to only those persons specified in the statute. Defendant suggests that "[t]he necessary implication of enumerating those individuals who may examine a medical-examiner autopsy report is to deny the right of inspection to others." Defendant reasons that, if ORS 192.502(9)(a) is construed to allow examination of medical examiner reports by all persons, then ORS 146.035(5) is rendered meaningless. Finally, defendant relies on the legislative history of the statute, adopted in 1973 as Oregon Laws 1973, chapter 408, section 4 (House Bill 2279), to confirm legislative intent to allow access to medical examiner reports by those with a legitimate interest in the report, but to provide discretion to the medical examiner to refuse inspection by others. As explained below, we conclude that the operation of ORS 146.035(5) does not make the requested report exempt from disclosure under ORS 192.502(9)(a).

We first examine the text of ORS 146.035(5) to determine if it is the type of law that fits within the category of laws defined by ORS 192.502(9). The text of ORS 192.502(9)(a) exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law." Thus, the initial question is whether ORS 146.035(5) prohibits or restricts the disclosure of records or information or otherwise makes records confidential or privileged so as to effect their nondisclosure.

At least on its face, ORS 146.035(5) does not have that effect. The statute grants the described persons a right to inspect certain medical examiner reports. The statute does not prevent the medical examiner from disclosing those reports to a person not named in the law. ORS 146.035(5) does not make a medical examiner report confidential or privileged, nor does it penalize the disclosure of a medical examiner report.² Because ORS 146.035(5) does not explicitly restrict or prohibit the disclosure of medical examiner reports or make those records confidential or privileged, ORS 146.035(5) is not within the scope of the ORS 192.502(9)(a) exemption.

Defendant asserts that ORS 146.035(5) has an implicit effect of restricting disclosure of medical examiner reports and that this effect brings the statute within the purview of the laws described by ORS 192.502(9)(a). We disagree with both propositions, that ORS 146.035(5) creates that implicit effect and that any implicit operation of a statute is sufficient to qualify the law under ORS 192.502(9)(a).

Defendant reasons that ORS 146.035(5) restricts access to medical examiner records because it grants that access to those records to only certain persons and necessarily implies that other persons lack that right. Defendant relies on a maxim of statutory construction, expressio unius est exclusio alterius, "the expression of one is the exclusion of others." We qualified the value of that maxim in determining statutory intent in State ex rel City of Powers v. Coos County Airport, 201 Or.App. 222, 234, 119 P.3d 225, rev. den., 341 Or. 197, 140 P.3d 580 (2006):

"[B]oth we and the Supreme Court have repeatedly warned the bench and bar that expressio unius is not a rule of law but is instead a guide to understanding legislative intent. * * * The maxim `is to be applied with caution and merely as an auxiliary rule to determine the legislative intention.' Cabell et al. v. City of [Cottage] Grove et al., 170 Or. 256, 281, 130 P.2d 1013 (1942); see also Frank E. Horack Jr., 2 Sutherland Statutory Construction § 4917, 418 (3d ed. 1943) (warning that the maxim `requires great caution in its application, and in all cases is applicable only under certain conditions')."

Thus, the expressio unius guide to legislative intent corroborates, rather than supplies, meaning to a statute. See generally Reed Dickerson, The Interpretation and Application of Statutes, 23 (1975) (citing expressio unius as an example of "maxims [that] masquerade as rules of interpretation while doing nothing more than describing results reached by other means"). If legislative intent to completely regulate an area can be inferred from the text or context of a law, then the statement of the regulation necessarily negates a different rule.

For example, in Waddill v. Anchor Hocking, 330 Or. 376, 8 P.3d 200, adh'd to on recons., 190 Or.App. 172, 78 P.3d 570 (2003), the issue was whether a defendant could pursue a defense on appeal that the plaintiff failed to state ultimate facts in the complaint that were sufficient to constitute a claim. The plaintiff argued that the defense could be raised only at the times and in the manner specified in ORCP 21 G(3) and that the rule's specifications did not include raising the defense for the first time on appeal. The defendant argued that, before the adoption of the civil procedure rule, Oregon court decisions allowed a party to raise the defense of failure to state a claim for the first time on appeal. The court concluded that ORCP 21 G(3) stated the exclusive manner by which a party may raise the defense because the adoption of the civil procedure rules "superseded" any different common law. Id. at 384, 8 P.3d 200. It was in that context that the court determined that, under the expressio unius maxim, "the specification of those three times indicates an intent * * * to limit the times at which a party may raise that defense to those three and to make the defense otherwise unavailable." Id. at 382, 8 P.3d 200....