Colby v. Gunson

199 P.3d 350, 224 Or. App. 666, 2008 Ore. App. LEXIS 1789
CourtCourt of Appeals of Oregon
DecidedDecember 24, 2008
Docket06C15785; A133979
StatusPublished
Cited by45 cases

This text of 199 P.3d 350 (Colby v. Gunson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colby v. Gunson, 199 P.3d 350, 224 Or. App. 666, 2008 Ore. App. LEXIS 1789 (Or. Ct. App. 2008).

Opinions

[668]*668SERCOMBE, 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 plaintiffs complaint. After review of that judgment for errors of law, Withers v. State of Oregon, 133 Or App 377, 382, 891 P2d 675, rev den, 321 Or 284 (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 plaintiffs 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 Young5 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 plaintiffs 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 [669]*669court 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:
iji iji % i|i
“(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.”

[670]*670Defendant 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).

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Bluebook (online)
199 P.3d 350, 224 Or. App. 666, 2008 Ore. App. LEXIS 1789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colby-v-gunson-orctapp-2008.