MacEwan v. Holm

• Citation: 359 P.2d 413,85 A.L.R.2d 1086,226 Or. 27
• Parties: , 85 A.L.R.2d 1086 Dr. Alan M. MacEWAN, Appellant, v. Dr. Carl A. HOLM, Dr. Forrest E. Rieke, Dr. Leo C. Skelley, Dr. R. Brandt Bartels, Dr. Herbert W. Goodman, Dr. Wendell H. Hutchens, Dr. A. V. Jackson, Orville Corbett, Dr. Harold M. Erickson, who constitute the Oregon State Board of Health, Respondents.
• Decision Date: 11 January 1961
• Court: Oregon Supreme Court

Page 413

359 P.2d 413

226 Or. 27, 85 A.L.R.2d 1086

Dr. Alan M. MacEWAN, Appellant, v. Dr. Carl A. HOLM, Dr. Forrest E. Rieke, Dr. Leo C. Skelley Dr. R. Brandt Bartels, Dr. Herbert W. Goodman, Dr. Wendell H. Hutchens, Dr. A. V. Jackson, Orville Corbett, Dr. Harold M. Erickson, who constitute the Oregon State Board of Health, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 15, 1960.

Reargued and Submitted Jan. 11, 1961.

Reuben G. Lenske, Portland, argued the cause and submitted a brief for appellant.

Floyd A. Fredrickson, Portland, argued the cause for respondents. On the brief was H. Lawrence Lister, Portland.

O'CONNELL, Justice.

Plaintiff brings this suit to require the defendants, who constitute the State Board of Health, to make available to the plaintiff data requested by him relating to nuclear radiation sources which defendants had collected in the course of carrying out their duties under ORS ch. 453. Plaintiff appeals from a decree granting defendants' motion to dismiss.

Under ORS ch. 453 enacted in 1957, the State Board of Health is charged with the duty of making a two-year study relating to radiation sources, after which it is required to 'promulgate regulations and standards, in conformance with the policy expressed in ORS 453.620, for the safe use, handling, disposal and control of all radiation sources within this state * * *.'

The Board was directed to promulgate the regulations and standards in conformance with the declaration of policy stated in ORS 453.620, which reads as follows:

'453.620 Declaration of public policy. Whereas radiation can be instrumental in the improvement of health, welfare and productivity of the public if properly utilized, and may impair the health, welfare and productivity of the public and the industrial and agricultural potentials of the state if improperly utilized, it hereby is declared to be the public policy of this state to encourage the constructive uses of radiation and to control any associated harmful effects.'

The Board was also directed to appoint a Radiation Advisory Committee to advise it 'on matters relating to radiological health and radiation protection.'

At the time plaintiff made his request for the data relating to radiation, the defendant had begun making tests to determine the amount of radioactive materials in the air. Defendants admitted in their answer to plaintiff's complaint that they had 'collected certain data designed to aid in determining the amount of radioactive material in the air and that defendants keep certain records.'

On April 22, 1958, plaintiff began his effort to obtain information from the Board. He first went to the Board's Portland office where he was referred to Dr. Sullivan, Director of Occupational Health. Dr. Sullivan was not in his office at the time but plaintiff made his request known to Mr. Moser, a chemist employed by the Board. Moser showed plaintiff the apparatus which was used to capture and count radioactive particles but plaintiff obtained no data in that conference. Plaintiff was then referred to Mr. Lamb, the administrative assistant to Dr. Harold Erickson, State Health Officer. Plaintiff testified that Lamb informed him that the Board had data on the amount of radioactive substances in the air and in rain water and that this information was available to the public but that it could be obtained only upon a written request.

On April 24, 1958, plaintiff wrote the first of a series of letters requesting information from the Board. In his first letter, which was addressed to the Director of Sanitary Engineering and delivered by plaintiff to Mr. Hatchard, an engineer in the Board's office, he asked for the Board's published report on radiation, or if the report was not available then the opportunity to examine the Board's findings. Mr. Hatchard informed plaintiff that his letter would be answered by Mr. Lamb. On May 12, 1958, having received no response to his letter of April 24, plaintiff mailed a letter to Mr. Lamb asking for a reply to his request for information. On the same day plaintiff received the following letter:

'* * *

'Dear Mr. MacEwan:

'The Oregon State Board of Health has been periodically collecting air or rain water samples for radioactivity measurements at the Portland station since May 1956 through participation in the Radiation Surveillance Network. These samples are submitted to the Public Health Service Radiological Health Laboratory in Washington, D. C. and consolidated reports of measurements for all stations are prepared.

'We do not have available published extracts for the Portland station and the Network instructions prevent the release of any data obtained from sampling stations located in other states.

'We regret that staff limitations prevent the preparation of an individual report for year use. However, the State Board of Health does make informational releases whenever minor variations in the radiation measurements occur.

'Very truly yours,

'[signed] H. M. Erickson

'Harold M. Erickson, M.D.

'State Health Officer'

On May 14, 1958, plaintiff wrote to Dr. Erickson referring to plaintiff's original letter in which he requested the opportunity to examine the Board's findings on radioactivity. On May 21, 1958, plaintiff received the following reply:

'* * *

'Dear Mr. MacEwan:

'* * * I regret the delay in reply, but because of the importance of your request, I presented it to the State Board of Health at their recent meeting.

'The State Board of Health was sympathetic to your wishes, but after reviewing the basis on which our sampling station was established and our agreements with United States Public Health Service in regard to release of information, the Board decided that your request could not be granted.

'The data involved is technical and must be interpreted to be of any value. I can assure you that according to the standards established by the United States Public Health Service, there have been no increases in radioactivity in the Portland area of sufficient magnitude to notify the Public Health Service.

'All health department records are not public, nor are they open to inspection by any citizen as are many governmental records. We regret that we cannot give you further information.

'Sincerely yours,

'[signed] Harold M. Erickson hd

'Harold M. Erickson, M.D.

'State Health Officer'

By letter dated June 19, 1958, plaintiff requested Dr. Erickson to send him a copy of the agreement between the Board and the United States Public Health Service relating to the release of information which was referred to in Dr. Erickson's letter of June 13. Plaintiff also requested Dr. Erickson to cite the statute which authorized the Board to withhold information from him.

On June 24, 1958, Dr. Erickson wrote to plaintiff stating that 'Your * * * request and explanation of it will be called to the attention of the Board at its next meeting in late July, 1958.' On August 10, 1958, plaintiff wrote again asking for a reply to his letter of June 24. He received a reply on August 13, 1958, which stated:

'* * *

'Dear Mr. MacEwan:

'* * * The Oregon State Board of Health, meeting August 1, 1958, again considered your request. It was decided that you should be offered the opportunity of a hearing before the Radiation Advisory Committee at their next meeting.

'The Radiation Advisory Committee is expected to meet in September. Pleas advise this office if you wish to appear before this committee and you will be advised of the time and place, when that information is available.

'Sincerely yours,

'[signed] R. H. Wilcox

'for

'Harold M. Erickson, M.D.

'Secretary'

Plaintiff's final letter on August 28, 1958, read in part, as follows:

'* * *

'Dear Dr. Erickson:

'* * * It is now about four months since I first asked for the opportunity to see these records. For me to have a hearing before a committee of your board would serve no good purpose; it would only contribute to the already too long delay to which you have subjected me. I have asked Mr. Reuben Lenske to institute a mandamaus proceeding for the Court to order you to make these records available to me.

'Sincerely yours,

'Alan M. MacEwan'

Plaintiff contends that since the data on radiation collected by defendants and similar data sent by the United States Public Health Service to the State Board of Health are compiled and tabulated in recorded form they are, therefore, a part of the public records of the state of Oregon. Plaintiff rests his claim of the right of inspection upon ORS 192.010 and 192.030. These sections provide as follows:

'192.010 Right to inspect public writings. Every citizen of this state has a right to inspect any public writing of this state, except as otherwise expressly provided by statute.'

'192.030 Officers to furnish opportunities for inspection of records. All officers having custody of any state, county, school, city or town records shall furnish proper and reasonable opportunities for inspection and examination of records and files in their respective offices, and reasonable facilities for making memoranda or abstracts therefrom, during the usual business hours, to all persons having occasion to make examination of them for any lawful purpose. The custodian of the records and files may make reasonable rules and regulations necessary for the protection of the records and files and to prevent the interference with the regular discharge of the duties of such officer.'

At early common law the right to inspect public records was limited generally to those who could show a need for the information in maintaining or defending an action. Nowack v. Auditor General, 1928, 243 Mich. 200, 219 N.W. 749, 60 A.L.R. 1351; North v. Foley, 1933, 238 App.Div. 731, 265 N.Y.S. 780; Nolan v. McCoy, 1950, 77 R.I. 96, 73 A.2d 693; Cross, The People's Right to Know, pp. 25-26 (1953). Judicial decisions in some states have enlarged the right of inspection beyond such strict limits. Nowack v. Auditor...