Jordan v. Motor Vehicles Division

781 P.2d 1203, 308 Or. 433

• Court: Oregon Supreme Court
• Decided: October 26, 1989
• Docket: TC 86C-12207; CA A43742; SC S35844
• Status: Published

Opinions

FADELEY, J.

At issue is an exemption to disclosure in Oregon’s public records statutes. ORS 192.410 to 192.505. The statutes provide for disclosure as the general rule but grant an exemption for “information of a personal nature * * * if the public disclosure thereof would constitute an unreasonable invasion of privacy * * ORS 192.502(2).¹ Relying on that exemption, the Motor Vehicles Division (MVD) refused to disclose to Lawrence Wm. Jordan an individual’s residence address contained in its records. The Attorney General, circuit court, and Court of Appeals upheld MVD’s refusal. Jordan v. MVD, 93 Or App 651, 763 P2d 420 (1988). Jordan seeks review, claiming as a matter of law that an individual residence address in an Oregon public record is never exempt from disclosure. Because the trial court’s finding that disclosure would constitute an unreasonable invasion of privacy is correct, under the facts of this case, and because the individual residence address is information of a personal nature, we affirm.

The individual (Citizen), whose address Jordan seeks, wrote to MVD, asking that it not disclose her address or phone number to anyone, especially not “an individual from the Salem community * * * [who] has monitored my activities by following me from my home * * * [and whose] pursuits are unwelcome.” MVD refused Jordan’s later request for the address, citing the ORS 192.502(2) exemption. Jordan petitioned the Oregon Attorney General to order disclosure under ORS 192.450(1), which provides a fast-track review of an agency’s refusal to disclose. The Attorney General sided with MVD.²

Jordan then instituted proceedings in circuit court under ORS 192.450(2). The circuit court disposed of the case on cross-motions for summary judgment. Citizen submitted through MVD an extensive affidavit, stating that she was a former friend of Jordan. Citizen swore that, in attempting to avoid Jordan, she established an unlisted phone number, obtained a post office box for use as an address, placed utility services in the names of housemates, rescheduled her day-today activities including religious and recreational ones, and caused a private attorney to write Jordan asking him to refrain from following her. Jordan did not submit any factual material to contradict Citizen’s affidavit or to support his request, but rather claimed an absolute legal right to obtain the address record.

The circuit court granted MVD’s motion for summary judgment under ORS 192.450(2), finding that MVD had proved that the information is personal in nature, that disclosure of the address would result in an unreasonable invasion of Citizen’s privacy, and that the public interest did not require disclosure. In addition, the circuit court found that Jordan had not sustained his burden of proving that disclosure would not constitute an unreasonable invasion of privacy or that the public interest required disclosure. The Court of Appeals affirmed the decision of the circuit court.

Jordan bases his claim of an unqualified legal right to inspect the address records of MVD on ORS 192.420, which states: “Every 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.” MVD relies upon ORS 192.502(2), which exempts “information of a personal nature * * * if the public disclosure thereof would constitute an unreasonable invasion of privacy * * *.” Before considering the controlling and statutorily linked issues of whether the address is “of a personal nature” and whether its disclosure will unreasonably invade privacy, we review the statutory scheme, our prior decisions concerning disclosure of public records, and some uses of MVD records.

LEGISLATIVE HISTORY

The exemption is set in a statutory context designed to enforce disclosure of public affairs. ORS 192.410 to 192.505 (Public Records); ORS 192.610 to 192.690 (Public Meetings). In the realm of records, ORS 192.420 grants every one a “* * * right to inspect any public record * * * except as otherwise expressly provided * * by statutory exemption. This right is not a new one. The Oregon Legislative Assembly on October 11, 1862, established the right, passing the following law: “Every citizen of this state has a right to inspect any public writing of this state, except as otherwise expressly provided by this code or some other statute.” General Laws of Oregon, ch 8, § 707, p 326 (Civ Code) (Deady 1845-1864). In Or Laws 1909, chapter 98, however, the legislature limited the opportunity to persons having occasion to inspect the records “for any lawful purpose.” Fifty-two years later, the legislature again broadened the availability of public records by deleting this limitation. Or Laws 1961, ch 160, § 4.

Between 1909 and 1973, various exceptions from inspection were adopted by statute, but the general rule mandating disclosure of public records remained, after 1961, otherwise intact. In 1973, the legislature produced and adopted a general revision of the records law. Or Laws 1973, ch 794.

The revision continued the general rule mandating disclosure of public records unless an exemption expressly applies. The 1973 revision adopted the exemption which we are called on to interpret in this case.

Throughout legislative consideration the exemption required an unreasonable invasion of privacy as a necessary condition for exempting information of a personal nature from the disclosure mandate. Amendments in committee emphasized this requirement by adding a repetition of it and by assigning burdens of proof for efforts to overcome it to obtain disclosure notwithstanding an initial showing that disclosure would constitute an unreasonable invasion of privacy. This unreasonable invasion requirement is similar in language to that in a Washington initiative measure which became effective January 1,1973, and which guarded against an “unreasonable invasion of personal privacy,” but was otherwise unique to Oregon.³ (Emphasis added.)

OUR DECISIONS

Our decisions reflect the preference for a policy of governmental openness in Oregon. MacEwan v. Holm et al, 226 Or 27, 359 P2d 413 (1961), states the strong and enduring policy that public records and governmental activities be open to the public. The plaintiff in MacEwan sought disclosure of records of the Oregon State Board of Health concerning exposure of Oregonians to radiation. The court held:

“We are of the opinion that the public interest will best be served by giving the term ‘records and files’ a broad construction embracing all writings in the custody of public officers, rendering such writings subject to inspection unless there are circumstances justifying nondisclosure.” 226 Or at 48.

Ayers v. Lee Enterprises Inc., 277 Or 527, 533-34, 561 P2d 998 (1977), involved a tort claim for invasion of privacy by printing the address of a victim who reported a rape to police. We held that, where a rape report was made to the police which included the address of the victim, the police report was a public record and publication of the address was not a tortious invasion of privacy. 277 Or at 533-37.

In Pace Consultants v. Roberts, 297 Or 590, 687 P2d 779 (1984), this court held that the investigatory information exemption to the public records act, now found in ORS 192.501(8), did not exempt from disclosure the name and address of a person against whom a complaint of unfair employment practice was filed with the Oregon Labor Commissioner. The court distinguished between the complaint, which was not expressly declared exempt, and the investigatory material, which was, and applied the general rule to mandate disclosure of the complaint’s contents. 297 Or at 595, 597. A public interest argument favoring nondisclosure was presented but the countervailing public interest in permitting inspection was sustained by the court. 297 Or at 598; see also Sadler v. Oregon State Bar, 275 Or 279, 284, 550 P2d 1218 (1976) (involving the “information submitted to a public agency in confidence” exemption from disclosure now in ORS 192.502(3)). In the process of extending case decisions to a new question, we keep in mind that it is an exception we are expounding, not the general rule.

USES OF ADDRESSES

The “information of a personal nature” exemption relates to a “public record,” which is defined in ORS 192.410(4):

“ ‘Public record’ includes any writing containing information relating to the conduct of the public’s business, prepared, owned, used or retained by a public body regardless of physical form or characteristics.”

MVD records contain addresses of over two million Oregon citizens who have applied for driver’s licenses or vehicle titles.⁴ MVD requires individual details of address, age, and weight as a condition of obtaining a license to drive a motor vehicle in Oregon, ORS 807.050, and an address for a vehicle registration or title certificate. After receiving a driver’s license or vehicle registration, a citizen has a legal duty to advise MVD of address changes. ORS 803.220, 807.560.

The uses of the address of a licensed driver, or of a vehicle owner, in “the conduct of the public’s business” are for the public convenience relating to drivers and owners (ORS 803.370); for financing (ORS 803.050) and insurance interests (ORS 806.060(2) (a)) arising out of the use of a motor vehicle; for licensing agency operations; and for public safety aspects of governmental activity. ORS 802.220(1) and (2). ORCP 7D(4)(a) provides for service of process, through serving MVD, on any defendant, other than a foreign corporation maintaining a registered agent in Oregon, in any action arising out of the operation of a motor vehicle on the roads, highways, or streets of this state. MVD also raises some revenue by disclosing the information, sometimes in bulk,⁵ for a fee. ORS 802.230 permits MVD to make charges for services; OAR 735-10-030, an agency rule, permits sale in bulk.

ANALYSIS

The exemption states some examples of what may be “information of a personal nature” and disclaims that those examples are comprehensive. The subsection contains no general definition of the terms “information of a personal nature” or “unreasonable invasion of privacy.” The agency initially and the courts ultimately, therefore, determine whether information in a public record is exempt from disclosure by application of these statutory words to a particular request.⁶

This exemption statute requires answers to three questions — whether the information is of a personal nature, whether disclosure unreasonably invades privacy, and whether the public interest nonetheless requires disclosure. The first and second questions must be answered affirmatively as a threshold matter in order to make relevant the remaining question which serves to limit further the exemption. A showing that making disclosure as requested will unreasonably invade privacy is necessary before information of a personal nature comes within the exemption. But even then a public interest may require disclosure in the particular instance.

The statute assigns burdens of proof. The public body or agency withholding a record nonetheless has a general burden “to sustain its actions.” ORS 192.490(1). Once the requisite invasion of privacy is shown, clear and convincing evidence must show that the public interest requires disclosure to overcome the exemption.

1. Of a Personal Nature

The Court of Appeals has adopted the view that information that “normally would not be shared with strangers” is information of a personal nature. Morrison v. School District No. 48, 53 Or App 148, 154-55, 631 P2d 784, rev den 291 Or 893 (1981). Home addresses, like one’s age, weight, and residential telephone number, are always personal in the sense of being individual information. We are not writing here about a person’s right of privacy, but simply the generic definition of what is or is not personal information. Webster’s Third New International Dictionary, at 1686 (Unabridged 1971), defines “personal” as meaning “1: of or relating to a particular person: affecting one individual or each of many individuals: peculiar or proper to private concerns: not public or general * * * (personal baggage): * * * 6: exclusively for a given individual (a personal letter) * *

An address filed with MVD is information that MVD could determine is of a personal nature within the meaning of the exemption statute. It is information specific to one individual even though it is in a public record containing over two million such addresses. The purpose of the exemption is not to prevent disclosure of personal information, as such, but rather to protect privacy from unreasonable invasion. To reason that an individual’s address is not and cannot be personal information because it is in the public record would both thwart the legislative purpose of protecting an individual whose personal information is otherwise subject to disclosure from unreasonable invasion and ignore some of the words of the statute creating the exemption, contrary to statutory guides for interpreting legislation. ORS 174.010. Additionally, the statutory reference to “information of a personal nature” refers to information in a public record. The legislature must have contemplated that placing information in a public record would not prevent it from being of a personal nature if it otherwise would fit that classification.

2. Unreasonable Invasion

A determination that the information is of a personal nature does not end our inquiry (nor that of an agency dealing with a request for record inspection). That the information would not be shared with strangers is not enough to avoid disclosure. The statute permits exemption of personal information records only “if the public disclosure thereof would constitute an unreasonable invasion of privacy * * (Emphasis added.) The legislative linkage of the two elements, personal information and unreasonable invasion, results in an objective test — whether disclosure will constitute an unreasonable invasion of privacy — which controls disclosure decisions, and the disposition of this case.

The legislature did not define “unreasonable invasion of privacy.” We understand that the legislature intended to use those terms in their common meaning as a generic description. The legislature would find it difficult if not impossible to specifically enact terms defining what would be an unreasonable invasion of privacy under particular circumstances involving a particular person or record.⁷ The legislature did not attempt to do so but instead chose the generic term “unreasonable invasion of privacy” to limit the exemption.

Therefore, under the statute, if the information is established to be of a “personal nature,” and the agency holding the records is shown that disclosure would constitute an “unreasonable invasion of privacy,” the exemption applies and may only be erased in favor of disclosure if clear and convincing evidence of the public interest in disclosure of the record is produced or if the showing of unreasonable invasion is overcome.

The statutory tests for the exemption from inspection are met in the record and rulings of the circuit court in this case. The subject of the record, a residence address, is personal information, and the individual gave prior notice to MVD in writing of the reasons why disclosure would affect her privacy. Her affidavit filed in the trial court sufficiently established that disclosure to the requester would more likely than not unreasonably invade her privacy because providing the information would allow Jordan to harry her incessantly to the extent that an ordinary reasonable person would deem highly offensive.⁸ Both requirements for threshold entitlement to the exemption are thus established and MVD is justified in relying upon ORS 192.502(2) and refusing disclosure until a showing is made either involving a public interest or that the disclosure would not constitute an unreasonable invasion of privacy.⁹

Jordan, the “party seeking disclosure,” has done nothing to meet his burden of proof to overcome the entitlement to the exemption which has been established. He does not attempt to prove that any “* * * public interest by clear and convincing evidence requires disclosure * * *.” ORS 192.502(2). We see no substitute suggestion of an overriding public interest in disclosure since none of the uses of MVD records, canvassed above, appear to be involved here. Jordan offers nothing to prove that the invasion of privacy by disclosure for his personal use is especially in the public interest or other than unreasonable. Our review of the record indicates that the relevant findings and conclusions of the circuit court are correct. Therefore, Citizen is entitled to the protection of the exemption in ORS 192.502(2).

The decision of the Court of Appeals affirming the judgment of the circuit court is affirmed.

1 ORS 192.502(2) provides that the following is exempt from disclosure under ORS 192.410 to 192.505:

“Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy[.]” (Formerly codified as ORS 192.500(2)(b).)

2 The Attorney General’s letter-order sustained the agency’s denial on the ground that the “individual * * * does treat her address as confidential. She has, for example, not listed her name, address and telephone number in the telephone directory.” The order did not discuss the unreasonable-invasion-of-privacy requirement which we construe as a necessary element that must be present before an exemption from the general rule of disclosure is permitted. However, the trial upon a complaint of unjustifiable denial of a disclosure request is de novo in circuit court. ORS 192.490(1). It is the action of that court, affirmed by the Court of Appeals, which we review.

3 Washington Laws 1973, chapter 1, section 26(1), provides:

“Each agency, in accordance with published rules, shall make available for public inspection and copying all public records. To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.”

(Emphasis added.)

The federal Freedom of Information Act adopted several years before the Washington initiative differs from Oregon’s statute in that the federal statute exempts disclosure which would constitute a “clearly unwarranted invasion of personal privacy.” 5 USC § 552(3)(6).

4 In 1987, Oregon recorded 2,143,728 licensed drivers and 2,183,172 passenger vehicles registered. Oregon Bluebook 121 (1989-1990).

5 See Or Laws 1989, ch 396, permitting licensees to request that their addresses “be excluded from any lists compiled and sold or otherwise supplied by the division for direct mail advertising purposes.”

6 ORS 192.490(1) provides in part:

“The Court shall determine the matter de novo and the burden is on the public body to sustain its action.”

In MacEwan v. Holm et al, 226 Or 27, 46, 359 P2d 413 (1971), this court stated:

“Ultimately, of course, it is for the courts to decide whether the explanation is reasonable and to weigh the benefits accruing to the agency from nondisclosure against the harm which may result to the public if such records are not made available for inspection.”

MacEwan was decided before the enactment of Oregon Laws 1961, chapter 160 section 4, which deleted the “lawful purpose” requirement. In any event, the facts of this case do not impact the principle of governmental openness.

7 For a wide range of settings in which privacy interests may arise and be invaded, see Fried, Privacy, 77 Yale L J 475 (1968) (note especially pages 483, 488 and 493); Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 NYU L Rev 962 (1964).

8 Jordan continues to pursue Citizen’s residence address in the courts. He sought to compel disclosure of her address through mandamus after his public records request was denied. See Jordan v. MVD, 98 Or App 511, 779 P2d 217 (1989).

9 The statute construed in this opinion mentions “unreasonable invasion” twice in two separate sentences. Both must be given meaning. ORS 174.010. The first mention, in the first sentence of ORS 192.502(2), requires that the individual whose information of a personal nature is a part of the public record must show to the agency that disclosure would constitute an unreasonable invasion of privacy in order to claim entitlement to this statutory exemption. Because a public agency always has the burden of sustaining applicability of an exemption to avoid disclosure, ORS 192.450(1), 192.490(1), when its decision to exempt is questioned, the agency must be given a sufficient basis for finding that both parts of the threshold for entitlement are met. The second mention, a completely new sentence added by amendment in committee, permits the requester to attempt to overcome that showing and assigns requester the burden of proof at that point.