Filed: October 7, 1999
OREGONIAN PUBLISHING COMPANY, an
Oregon corporation, doing business
under the assumed business name of
The Oregonian; and ERIN HOOVER SCHRAW,
Respondents on Review,
v.
PORTLAND SCHOOL DISTRICT NO. 1J,
Petitioner on Review.
En Banc
On review from the Court of Appeals.*
Argued and submitted September 14, 1998.
James N. Westwood, of Miller, Nash, Wiener, Hager & Carlsen LLP, Portland, argued the cause on behalf of petitioner on review. With him on the petition and brief on the merits was Bruce L. Campbell.
Charles F. Hinkle, of Stoel Rives LLP, Portland, argued the cause and filed the response on behalf of respondents on review. With him on the brief on the merits was Per A. Ramfjord.
Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General, Salem, filed a brief on behalf of amicus curiae Oregon Attorney General.
Monica A. Smith, of Smith, Gamson, Diamond & Olney, Portland, filed a brief on behalf of amici curiae Portland Association of Teachers, Oregon Education Association, and National Education Association.
KULONGOSKI, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
* Appeal from Multnomah County Circuit Court,
Ancer L. Haggerty, Judge, and Charles H. Turner,
Judge Pro Tempore.
(keywords for search: school discipline records investigation theft property personnel action)
144 Or App 180, 925 P2d 591 (1996), modified and adhered to 152 Or App 135, 952 P2d 66 (1998).
KULONGOSKI, J.
Plaintiffs Oregonian Publishing Company (Oregonian
Publishing) and its employee, reporter Erin Hoover Schraw, filed
this action for injunctive relief seeking to compel defendant
Portland School District No. 1J (the district) to release as
public records several documents relating to an investigation of
alleged misuse and theft of school property by district
employees. The circuit court ordered release of two of the
documents sought by plaintiffs. Defendant appealed, and the
Court of Appeals affirmed. Defendant released one of the two
documents, but sought review of the Court of Appeals' decision
regarding the other document. We allowed review and now affirm
on other grounds the decision of the Court of Appeals.
We take the following undisputed facts from the Court
of Appeals' original and modified opinions and from the record.
In early 1993, Ross, the campus monitor at Benson High School,
notified McElroy, deputy superintendent of the district, that
Ross and several other Benson High School employees had
participated in misuse and theft of school property. McElroy
asked the Portland School Police, an agency organized under ORS
332.531,(1) to investigate the matter. Sergeant Leedom of the
school police conducted the investigation. After interviewing a
number of district employees, Leedom prepared a report entitled
"Personnel Investigation," describing problems with control of
school property at Benson High School. That report is the
subject of this opinion.
The report was delivered to McElroy, who retained it in
a file in his office while the district school board reviewed the
matter.(2) Ultimately, the district resolved the matter
internally. Three employees ended their employment with the
district. One of the employees, Parr, the principal of Benson
High School, retired and sent a letter to Benson High School
faculty and staff announcing his retirement. That letter was
quoted at length a few days later in The Oregonian, a newspaper
owned by Oregonian Publishing.
A reporter for The Oregonian subsequently telephoned
the district and made a request under the public records law to
review "[a]ll records contained in the Portland School Police
investigation of the misuse of district property by [district
employees]." The district refused to release the requested
records, claiming that they pertained to a confidential personnel
matter and thus were exempt from disclosure under former ORS
192.502(8) (1995)(3) and former
ORS 342.850(7) (1995),(4) renumbered
as ORS 192.502(9) (1997) and ORS 342.850(8) (1997), respectively.
Pursuant to ORS 192.450 and ORS 192.460, Oregonian
Publishing requested that the Multnomah County district attorney
review the disputed public records and determine whether they
were exempt from disclosure requirements under the public records
law. The district attorney reviewed the records and determined
that they were exempt from disclosure under ORS 192.502(9) and
ORS 342.850(8) as records in a personnel file.
Oregonian Publishing then filed this action for
injunctive relief, seeking to compel the district to release the
documents in its possession relating to the investigation of
alleged misuse and theft of school property by district
employees. The circuit court ordered the release of two of those
documents, reasoning that Parr's letter announcing his retirement
had been circulated widely and therefore was not exempt from
disclosure, and that the district had waived any exemption it
might have had for the school police investigation report. The
circuit court also ruled that the other documents requested by
Oregonian Publishing were exempt from disclosure under the public
records law. The district appealed, and the Court of Appeals
affirmed. Oregonian Publishing v. Portland School Dist. No. 1J,
144 Or App 180, 925 P2d 591 (1996), modified and adhered to 152
Or App 135, 952 P2d 66 (1998).
After the Court of Appeals affirmed the judgment of the
circuit court, the district released Parr's letter. The district
then petitioned for review of the Court of Appeals' decision that
the investigation report was not exempt from disclosure. On
review, the district contends that the Court of Appeals adopted
an inappropriately broad waiver standard that alters the nature
of public records law exemptions and that, under an appropriate
waiver standard, it did not waive the statutory exemption for
documents in a personnel file under ORS 192.502(9) and ORS
342.850(8). The district further asserts that, because it placed
the investigation report in a personnel file, the report is
exempt from disclosure under ORS 192.502(9) and ORS 342.850(8).
On review, we do not reach the issue of waiver because we hold
that the investigation report prepared by the school police is
not exempt from disclosure under ORS 192.502(9) and ORS
342.850(8).
Oregon has a long-standing policy in favor of access to
public records. The general statement of legislative policy
regarding public records has remained virtually unchanged for
almost 140 years. An 1862 law originally granted Oregon citizens
the statutory 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 (Deady
1845-1864). Although the 1909 legislature limited that right to
persons having "a lawful purpose," Or Laws 1909, ch 98, the
legislature deleted that restriction 52 years later and restored
the general right to inspect any public record, subject to
certain statutory exemptions, Or Laws 1961, ch 160, § 4. The
Oregon legislature made a structural revision of public records
law in 1973, gathering records statutes into ORS Chapter 192 and
organizing the basic structure of the public records law as it is
today. The current statement of legislative policy regarding
public records, ORS 192.420, provides that "[e]very person has a
right to inspect any public record * * * except as otherwise
expressly provided by ORS 192.501 to 192.505." A 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." ORS 192.410(4).
The 1987 legislature adopted a "catchall exemption" in
former ORS 192.502(8) (1987), renumbered as ORS 192.502(9)
(1997), as a replacement for former ORS 192.500(2)(h) (1985). Or
Laws 1987, ch 764, § 1; Or Laws 1987, ch 898, § 26; Attorney
General's Public Records and Meetings Manual, 36-38 (1989). ORS
192.500(2)(h) (1985) exempted from disclosure "[p]ublic records
or information the disclosure of which is prohibited or
restricted or otherwise made confidential or privileged under
* * * ORS 342.850 * * *." ORS 192.500(2)(h) (1985) attempted to
list every statute outside the public records law that in any way
prohibited or restricted disclosure of public records. In
addition to ORS 342.850, ORS 192.500(2)(h) (1985) listed more
than 60 individual statutes and chapters in the Oregon Revised
Statutes, but was difficult to maintain as a comprehensive list
because the legislature amended, added, and repealed laws
affecting the disclosure of public records during each
legislative session. The replacement for ORS 192.500(2)(h)
(1985), former ORS 192.502(8) (1987), renumbered as ORS
192.502(9) (1997), exempts from disclosure under the public
records law "[p]ublic records or information the disclosure of
which is prohibited or restricted or otherwise made confidential
or privileged under Oregon law."
"When the legislature adopts an exemption to disclosure
of public records * * * [o]ur task * * * is to determine and
declare the legislature's meaning in the exemption adopted."
City of Portland v. Rice, 308 Or 118, 122, 775 P2d 1371 (1989);
see also PGE v. Bureau of Labor and Industries, 317 Or 606, 610,
859 P2d 1143 (1993) ("In interpreting a statute, this court's
task is to discern the intent of the legislature."). Our first
step in discerning that intent is to examine the text and context
of the statute. Id. at 610-11. When a statute does not define a
word or term, we give that word or term its plain, natural, and
ordinary meaning. Id. at 611. Context includes "other
provisions of the same statute and other related statutes," id.,
as well as relevant judicial construction of those statutes. See
Owens v. Maass, 323 Or 430, 435, 918 P2d 808 (1996) (context
includes judicial construction of earlier versions of relevant
statutes). If our analysis of those sources discloses the
legislature's intent, we proceed no further. PGE, 317 Or at 611.
ORS 342.850, which deals exclusively with public school
teacher evaluations and personnel files, provides, in part:
"(8) The personnel file shall be open for
inspection by the teacher, the teacher's designees
and the district school board and its designees.
District school boards shall adopt rules governing
access to personnel files, including rules
specifying whom school officials may designate to
inspect personnel files."
ORS 342.850(8) does two things. First, it explicitly guarantees
that certain people (the teacher, the district school board, and
the designees of each) have the right to inspect teacher
personnel files. Second, it explicitly requires the district to
adopt rules governing access to teacher personnel files. Acting
pursuant to the authority delegated in ORS 342.850(8), the
district adopted rules restricting the public's access to the
district's personnel files. Teacher personnel files thus fall
within the ambit of the "catchall exemption" to the public
records law in ORS 192.502(9).
The district argues that it may keep the investigation
report from public view by placing that public record in a
personnel file and claiming an absolute exemption for the report
under ORS 342.850(8) and ORS 192.502(9) based on the report's
location, rather than its content. The resolution of that issue
determines the outcome of this case.
ORS 342.850 neither explicitly defines the term
"personnel file" nor does it list the appropriate contents of
such a file.(5) Accordingly, we rely on the plain, natural, and
ordinary meanings of the words "personnel" and "file" to
determine the meaning of the statutory term "personnel file."
The word "personnel" means "persons of a particular (as
professional or occupational) group" or "a body of persons
employed in some service." Webster's Third New Int'l Dictionary,
1687 (unabridged ed 1993). The word "file" has two meanings
relevant to this case: "a container in which papers are kept"
(e.g., a folder or a metal cabinet); and "a collection of cards
or papers usu[ally] arranged or classified" (i.e., the collection
of papers residing in such a container). Id. at 849. Thus, a
"personnel file" is a container for papers arranged or classified
as to a person in a particular group or employment category, or a
collection of such papers in such a container. Those definitions
accord with our understanding of the term "personnel file" as it
is commonly used. Both meanings are significant here.
The district has the authority to compile and maintain
such files as are necessary to perform its statutory obligation
under ORS 332.505(1)(b) to "[e]mploy personnel, including
teachers and administrators, necessary to carry out the duties
and powers of the board and fix the duties, terms and conditions
of employment * * *." Such "personnel files" would usually
include information about a teacher's education and
qualifications for employment, job performance, evaluations,
disciplinary matters or other information useful in making
employment decisions regarding an employee.(6) The grant of
rulemaking authority to the district contained in ORS 342.850(8)
allows the district to adopt rules governing access to the
containers of "personnel files." ORS 342.850(8) also allows the
district to control access to the records stored in each such
container, because controlling access to the container itself
would have no meaning without the authority to control access to
the collection of papers in the container.
ORS 342.850(8) does not, however, authorize the
district to exempt a public record from disclosure by placing it
in a district personnel file and claiming an exemption based on
the report's title or location, rather than its content. In
light of the "strong and enduring policy that public records and
governmental activities be open to the public," noted by this
court in Jordan v. MVD, 308 Or 433, 438, 781 P2d 1203 (1989), and
in other cases, the legislature clearly did not intend such a
result. This court stated in Guard Publishing Co. v. Lane County
School Dist., 310 Or 32, 39, 791 P2d 854 (1990):
"A public body may not exempt itself from its
responsibilities under the Inspection of Public Records
law by adopting a policy that seeks to deprive citizens
of their right under the law to inspect public records.
Disclosure is the norm; exclusion is the exception that
must be justified by the public body."
The report at issue in this case resulted from Deputy
Superintendent McElroy's request that the school police
investigate allegations that Benson High School staff had stolen
or otherwise misappropriated school district property. That is a
matter of paramount public interest and concern. Although the
title of the investigation report is "Personnel Investigation,"
the subject noted in the heading of the report is "Misuse and
Theft of School District Property," without any reference to any
individual school district employee. The focus of the report is
the general "atmosphere" at Benson High School regarding school
district property, with documentation and discussion of misuse
and theft of such property by several school district employees.
The investigation report also discusses the policies in place at
the school regarding donated and surplus property, and the need
for improvement regarding those policies and their enforcement by
the school district.
Testimony by school police officers at trial indicated
that, although school police routinely handle what are called
"personnel investigations," the school police do not write
personnel evaluations of school district employees, nor are they
familiar with the personnel evaluation procedures followed by the
district. The recommendation at the close of the report concerns
the adoption of new policies and more stringent inventory
controls at Benson High School.
The investigation report does not address an individual
school district employee's terms and conditions of employment;
neither does it recommend any employment decision regarding the
individual school district employees who were the subject of the
investigation.(7) The district cannot restrict access to public
records simply by placing the records in a personnel file or
using a label, such as "Personnel Investigation," for those
records. We conclude that the school district must disclose the
investigation report because it is not exempt from disclosure
under ORS 342.850(8) and ORS 192.502(9) either as part of a
personnel file or because it is labeled "Personnel
Investigation."
For the reasons stated above, the investigation report
at issue here is not the type of document that the legislature
intended to exempt from disclosure as part of a teacher personnel
file. The circuit court did not err in ordering the district to
release the investigation report to Oregonian Publishing.
The decision of the Court of Appeals and the judgment
of the circuit court are affirmed.
1. ORS 332.531(1) provides, in part:
"The district school board of any school district
may establish a law enforcement agency and employ such
personnel as may be necessary to insure * * * the
security of the real and personal property owned,
controlled or used by or on behalf of the school
district."
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2. McElroy discussed the subject matter of the report with
the Multnomah County district attorney, who declined to
investigate whether criminal charges should be filed against any
district employee.
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3. Former ORS 192.502 (1995) provided, in part:
"The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
"* * * * *
"(8) Public records or information the disclosure
of which is prohibited or restricted or otherwise made
confidential or privileged under Oregon law."
The wording of that section remained the same when it was
renumbered as ORS 192.502(9) in 1997. Or Laws 1997, ch 825, § 1.
Except as where otherwise noted, we refer to the current
numbering of the statute, ORS 192.502(9), throughout this
opinion.
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4. Former ORS 342.850(7) (1995) provided:
"The personnel file shall be open for inspection
by the teacher, the teacher's designees and the
district school board and its designees. District
school boards shall adopt rules governing access to
personnel files, including rules specifying whom school
officials may designate to inspect personnel files."
The wording of that section remained the same when it was
renumbered as ORS 342.850(8) in 1997. Or Laws 1997, ch 864, § 9.
Except as otherwise noted, we refer to the current numbering of
the statute, ORS 342.850(8), throughout this opinion.
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5. Neither do the district regulations. District Regulation 5.20.110(1) suggests general categories of personnel file documents, such as "records * * * which relate to * * * character, personal history, scholarship, school reports, and other data of a confidential nature * * *."
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6. We also have considered the wording of statutes that at least arguably are contextual to those we construe today, ORS 351.065 and ORS 353.260. See PGE, 317 Or at 611 (first level of analysis of legislative intent behind statute includes wording of contextual statutes). We have found no contextual statute that detracts from our construction of ORS 192.502(9) and ORS 342.850(8).
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7. In noting the absence of such material, we do not mean to suggest that inclusion in the report of personnel action recommendations, whether volunteered by Leedom or sought by McElroy, necessarily would change the result we announce today.
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