Oregon Supreme Court grants access to Portland School District records of alleged employee theft

Filed: October 7, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

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.

(CC 9308-05795; CA A83594; SC S45020)

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.

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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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Appeals Court rules prisoner execution preparations are public under Constitution

Court rules preparations for prisoner executions are public

FILED: September 9, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON
OREGON NEWSPAPER PUBLISHERS
ASSOCIATION, a not for profit
association, J. LEROY YORGASON,
its President, WILLAMETTE VALLEY
CHAPTER OF SOCIETY OF PROFESSIONAL
JOURNALISTS, a not for profit
society of journalists, ROB
PRIEWE, chapter President, THE
ASSOCIATED PRESS, a not for profit
news cooperative, ELAINE NORTON
HOOKER, its Chief of Bureau for
Portland, Oregon, THE OREGON
PUBLISHING COMPANY, an Oregon
corporation, THE OREGON
ASSOCIATION OF BROADCASTERS, a
non-profit association, BILL
JOHNSTONE, its executive director,
THE STATESMAN JOURNAL, a daily
newspaper published in Salem,
Oregon, and JULIA WALLACE, its
Executive Editor,

Petitioners,

v.

DEPARTMENT OF CORRECTIONS
and STATE OF OREGON,

Respondents.

(CA A97110)

Judicial Review of Department of Corrections Administrative Rules.

Argued and submitted May 15, 1998.

Les Swanson, Jr., argued the cause and filed the briefs for petitioners.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondents. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong, Judge, and Warden, Senior Judge.

EDMONDS, P. J.

Rules held valid.

EDMONDS, P. J.

Petitioners raise constitutional challenges to OAR 291-024-0017(2)(b), (c) and (e), OAR 291-024-0020(3)(d)(D), OAR 291-024-0065, OAR 291-024-0070 and OAR 291-024-0080, all of which were promulgated by the Department of Corrections (Department) on February 7, 1997, regarding the witnessing of executions of prison inmates. Petitioners contend that the rules violate Article I, section 8, and Article I, section 10, of the Oregon Constitution and the First and Fourteenth Amendment to the United States Constitution. We affirm.

Petitioners attack the constitutionality of the rules pursuant to ORS 183.400.(1) Under that statute, our review is limited to whether the rules violate the state and federal constitutions on their face. AFSCME Local 2623 v. Dept of Corrections, 315 Or 74, 79, 843 P2d 409 (1992).(2)

I. THE RIGHT TO VIEW PRE-EXECUTION PROCEDURES

We first address petitioners’ claim that they have a right to view procedures that occur during the preparation for an inmate’s execution. In essence, OAR 291-024-0065, OAR 291-024-0070 and OAR 291-024-0080 prevent all witnesses from viewing the inmate until after the inmate is strapped down and the intravenous catheter, through which the death-causing drugs will be administered, has been inserted. We address plaintiffs’ state constitutional claims first and then their federal constitutional claims.

Article I, section 10, of the Oregon Constitution provides, in part, that, “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay.” (Emphasis supplied.) The phrase “justice shall be administered” has been interpreted by the Supreme Court to be limited to “adjudications.” In Oregonian Publishing Co. v. O’Leary, 303 Or 297, 303, 736 P2d 173 (1987), the court explained that “[t]he primary limitation on the scope of section 10 is that it is directed only at adjudications. To the extent that adjudications are not involved, the administration of justice is not governed by it.” (Emphasis supplied.) The parties also agree that the threshold issue in this case is whether the execution of an inmate is an “adjudication” within the meaning of section 10.

The state argues that “adjudications” are limited to judicial proceedings and actions by judges. It asserts that because an execution of an inmate is not a judicial proceeding, it cannot be an “adjudication.” On the other hand, petitioners assert that “[t]he ultimate adjudication issued by an Oregon Court is the judgment of death.” They explain:

“An adjudication of death is not complete until death occurs, and the fact that the execution of the judgment of death occurs after the judgment of death is pronounced, does not insulate this single most powerful act that the state is authorized to perform from the open administration of justice provision of Article I, section 10, of the Oregon Constitution.”

The issue necessarily turns on the definition of “adjudication” for purposes of section 10.

There are a number of cases that have interpreted the clause “justice shall be administered, openly and without purchase, completely and without delay.” One of the earlier cases is State v. Endsley, 214 Or 537, 546, 331 P2d 338 (1958). In that case, the court limited section 10 issues to those “adjudicated in a circuit court.” Id. In State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284, 613 P2d 23 (1980), the court held that Article I, section 10, guarantees a right of access to the public to most judicial proceedings. It explained, however, that section 10 does not guarantee access to all judicial proceedings; for example, jury deliberations have historically been closed to the public. The holding in Deiz illustrates that not all proceedings that occur in a court are “adjudications” in the sense contemplated by section 10. In Oregonian Publishing Co., the plaintiff newspaper sought access to a summary hearing in a murder trial regarding whether a witness who refused to testify on the ground that he would incriminate himself could be compelled to testify. Pursuant to a statute, the defendant trial judge ruled that the hearing was closed to the public. The court noted that, although section 10 is absolute in its terms, not every proceeding involving the administration of justice is required to be open to public scrutiny. The court said that, “[t]he primary limitation on the scope of section 10 is that it is directed only at adjudications. To the extent that adjudications are not involved, the administration of justice is not governed by it.” 303 Or at 303. The court then reasoned that because a fundamental function of a court is to determine legal rights based on the presentation of evidence and argument, the legal determination required by the statute at issue constituted an “adjudication” within the meaning of section 10. Id.

In State v. Wagner, 305 Or 115, 146, 752 P2d 1136 (1988), vacated on other grounds 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), rev’d in part on other grounds 309 Or 5, 786 P2d 93, cert den 498 US 879, 111 S Ct 212, 112 L Ed 2d 171 (1990), the defendant argued that the death penalty violated section 10 “because it is incompatible with the concept of complete justice.” In response, the court pointed out that the death penalty statutes were adopted by an overwhelming majority of Oregon voters and held that the administration of “justice” required by section 10 is served “[i]f defendant received a trial and sentence according to those and other applicable laws.” Although the issue in this case was not directly before the Wagner court, its refusal to extend section 10 protection beyond the trial and sentencing proceedings is instructive. In another case involving the death penalty, the court, relying on Wagner, held that Article I, section 10, does not mandate that post-conviction proceedings be litigated to a conclusion before a death penalty sentence could be executed. Bryant v. Thompson, 324 Or 141, 147, 922 P2d 1219 (1996). Finally, in Flowers v. Board of Parole, 124 Or App 331, 334-35, 862 P2d 1312 (1993), rev den 318 Or 325 (1994), we refused to extend the protection of section 10 to a parole board hearing because it was an administrative proceeding and not a hearing in a court of law.(3)

The case law confining section 10 protection to those proceedings in courts in which legal rights are determined based on a presentation of evidence and argument is consistent with the history underlying Article I, section 10. Section 10 has its origin in Article 40 of the Magna Carta (1215), and Lord Edward Coke’s discussion of the Magna Carta in The Second Part of the Institutes of the Lawes of England (1642) (Second Institutes), which were written to reform corruption in the common law courts. During that historical period, the King and his ministers would consult with judges on pending cases and exert political pressure on them that interfered with the integrity of the adjudicatory process. Bryant, 324 Or at 147-48. See also Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1279 (1995) (discussing the historical roots of Article I, section 10). There is no suggestion that Coke was concerned with subsequent events that took place pursuant to court orders but outside the court.

As we have indicated, the case law pertaining to and the history of section 10 do not support petitioners’ argument that the execution process is an adjudicatory proceeding within the meaning of section 10. An execution does not involve a determination of a legal right based on the presentation of evidence and argument. There is another reason why petitioners’ argument is not well taken that is self-evident. The execution of a prison inmate is not carried out by the judicial branch of government. Rather, it is a function of the executive branch of government. As indicated, all of the cases that have addressed the meaning of the phrase “justice shall be administered” in section 10 have consistently limited its applications and adjudications to judicial functions. For all of these reasons, we conclude that an execution is not an “adjudication” and that, therefore, petitioners do not have a right under section 10 to view the procedures leading up to an inmate’s execution.

Petitioners also contend that Article I, section 8, of the Oregon Constitution implicitly guarantees them the right to view the procedures leading up to an inmate’s execution. Article I, section 8, of the Oregon Constitution, provides that, “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.” Petitioners do not cite to any Oregon appellate case in which Article I, section 8, has been interpreted to encompass the right of public access to a government activity.(4) Instead, they rely on case law where the issue was whether the First Amendment provides a right of access for the media and the public to attend procedures occurring in criminal trials. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 US 555, 100 S Ct 2814, 65 L Ed 2d 973 (1980).

In Richmond Newspapers, the issue was whether the trial court erred when it excluded the media from pretrial hearings. The court reasoned that criminal trials were historically open to the public and that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Id. at 573. The court explained that, “[t]he right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press.” Id. at 577. Nonetheless, it acknowledged that the right to access to criminal trials is not expressly provided for in the First Amendment. Id. at 579. However, it reasoned:

“Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. * * *

“We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.'” Id. at 580-81 (footnote omitted) (quoting Branzburg v. Hayes, 408 US 665, 681, 92 S Ct 2646, 33 L Ed 2d 626 (1972)).

Relying on the above language, petitioners assert that the language in Article I, section 8, is “stronger and more inclusive” than the language of the First Amendment, and, thus, it follows that Article I, section 8, must be interpreted to include public access to executions, including the pre-execution procedures. We disagree with petitioners’ argument. First, the language in Article I, section 8, provides that “[n]o law shall be passed restraining the free expression of opinion.” There is nothing in the language of section 8 that expressly provides support for petitioners’ argument. Thus, their argument hinges on interpreting section 8, to provide for an “implicit” right to access to government activities and involves an additional step in logic. Not only must petitioners demonstrate that the right of access to government activities is part of section 8, but they must also show that such a right extends beyond trial court proceedings to the kinds of events they desire to witness.

Petitioners’ premise that Article I, section 8, is to be interpreted more expansively than its First Amendment counterpart regarding access to public trials is incorrect. The framers of the Oregon Constitution provided separately for a right to public trials in Article I, section 10, which provides that “[n]o court shall be secret.” During the debates leading up to the formation of the Oregon Constitution, the framers discussed the federal bill of rights and how they should be incorporated into the Oregon Constitution. One constitutional delegate expressed his views as follows:

“Believing, as I do, that these declarations, thus solemnly made by a convention and ratified by the people, will always not only command universal respect, but the attention of courts, I desire that such a bill may precede or become a part of our constitution. It is a sort of manual — a sort of textbook of weighty matters, placed there multum in parvo * * *. They are there in monosyllables; and although individuals of common capacity, or of ordinary pursuits, may not be regarded as expounders of the constitutional law, yet the doctrine is contained, the declarations embodied in that bill of rights, and the meanest capacity can understand them. * * *

“For these reasons, then, I am in favor of all the essential principles of a bill of rights. The question, then, seems to be, how they shall be put in. I am in favor of having them embodied in a separate clause by themselves, for the reason that they are more easily referred to. They can be more evidently set forth by a separate and distinct article. * * *

“* * * * *

“Now, I propose to avoid the first causes of this confusion. I propose to put under the head of legislative department whatever restricts that department, and my form shall be this: The legislature shall not have power to pass a law upon this question or that question, so that when a man wishes to know what power is taken from the legislature he can see it in plain and express terms, and there can be no difficulty in understanding them.” Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 101-03 (1926) (emphasis supplied).

The format of the Oregon Constitution is a reflection of that expression. Article I’s Bill of Rights as originally adopted contained more than 30 sections. In contrast, the Richmond Newspaper court provided for a right to access to criminal trials through the First Amendment after deciding that there were no other express provisions in the federal bill of rights that provided for such access. The court examined the history underlying modern criminal trial procedure. It traced the roots of the court system back to England before the Norman Conquest and noted that local courts at that time “were attended by the freemen of the community.” The court explained that “[s]omewhat like modern jury duty, attendance at these early meetings was compulsory on the part of the freemen, who were called upon to render judgment.” The court also relied on Lord Edward Coke’s Institutes of the Laws of England in which Coke said: “These words [In curia Domini Regis] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King’s Courts openly in the King’s Courts, whither all persons may resort.” Richmond Newspaper, 448 US at 565 n 6 (quoting 2 E. Coke, Institutes of the Laws of England 103 (6th ed 1681)). The court concluded that “the historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open.” Id. at 569. As the court proceeded in its analysis in Richmond, it noted that it was important not to read into the Constitution rights not explicitly defined. Nonetheless, it said, “the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees.” Id. at 579. It then concluded the historical right to attend trials is an implicit right within the guarantees of the First Amendment because “without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.'” Id. at 580 (quoting Branzburg, 408 US at 681). Thus, the impetus for the Richmond court’s decision to provide an implicit guarantee in the First Amendment of the right to attend criminal trials is lacking in Oregon. Article I, section 10, already provides for the right of access to criminal trials that petitioners contend we should read into section 8 as the predicate to holding that section 8 implicitly provides for unfettered access to pre-execution procedures. Under the circumstances, we decline petitioners’ invitation.(5) Accordingly, we reject petitioners’ argument.

Petitioners also contend that OAR 291-024-0065, OAR 291-02-0070 and OAR 291-024-0080 violate the First Amendment. First, it is important to note that petitioners, as media representatives, do not argue that the media is entitled to any special access to executions. Instead, they argue that the rules violate the First Amendment “because they prohibit any access by the public to execution procedures.” In that light, ORS 137.473(1) provides that “[a]ll executions shall take place within the enclosure of a Department of Corrections institution designated by the Director of the Department of Corrections.” OAR 291-24-0005 provides that “[a]ll executions in the State of Oregon shall take place within the enclosure of the Oregon State Penitentiary.” Petitioners do not challenge the constitutionality of ORS 137.473(1) or OAR 291-24-0005. Apparently, the import of their argument is that the First Amendment requires the state to admit the public to the Oregon State Penitentiary in order to view all stages of an execution process.

We can find no United States Supreme Court case which holds that the public has an unqualified right of access to penal institutions under the First Amendment. In Pell v. Procunier, 417 US 817, 94 S Ct 2800, 41 L Ed 2d 495 (1974), the Court held that the press did not have any special rights to gain access to the interior of a state penitentiary. In that case, prison inmates and the media challenged a rule prohibiting the media from specifically designating inmates whom they wished to interview. The rule was designed to prevent inmates from becoming “public figures” within the prison society, which would help them obtain a disproportionate degree of notoriety and influence among their fellow inmates. Id. at 831-32. The Court held the First Amendment inapplicable:

“The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources * * * and that government cannot restrain the publication of news emanating from such sources. * * * It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court.” Id. at 834 (footnote omitted; citations omitted).

The Court also explained that it would defer to prison administrators to determine what regulations are appropriate for purposes of safety in a prison environment:

“Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. at 827.

In First Amendment Coalition v. Calderon, ___ F3d ___ (9th Cir 1998) (July 23, 1998), the Ninth Circuit held that a California statute, almost identical to the rules at issue in this case, does not violate the First Amendment rights of either the press or the public. The court explained:

“Procedure 770 allows witnesses to view an execution from just after the IV has been inserted into the condemned and a saline solution is running until the condemned is pronounced dead. This procedure does not cut off all access to information regarding executions. Rather, Procedure 770 allows for some access and observation, while it minimizes the exposure of the members of the execution team to the media or other witnesses, out of a concern for staff safety and institutional security.

“We stress that we are not holding that the public and the press do not have First Amendments right to view executions. Rather, our holding is limited to the facts of this case. Calderon asserts that the limitations on viewing contained in Procedure 770 are ‘directly related to prison security, staff safety, and the orderly operation of the institutional procedure.’ The procedures surrounding an execution ‘are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.’ Pell, 417 US at 827. We do not have substantial evidence indicating an exaggerated response here and, therefore, defer to prison officials in this matter. Whatever First Amendment protection exists for viewing executions, it is not violated by Procedure 770.” Id. at ___.

In this case, the rules themselves provide the reason for the limitation on access to pre-execution procedures. OAR 291-024-0005(3)(a) provides:

“It is the policy of the [Department] to discharge its statutory responsibility to carry out death sentences imposed under Oregon law in a manner that is consistent with Oregon statutes, and with the safe, secure and orderly management and operation of the Oregon State Penitentiary, the safety and security of Department staff and other persons directly involved in the execution process, and their families, with due regard for the dignity of the condemned inmate, and with the limitations of space and resources. Consistent with these policies, executions will be conducted in a manner designed to protect as completely as possible the anonymity of Department staff and other persons involved.”

Because this case is on review under ORS 183.400, petitioners have not established any factual record that questions the Department’s policy statement. As such, we defer to the Department’s policy, as stated in the rule, that such rules are necessary for institutional security. In light of all of the foregoing considerations, we conclude that there is no absolute First Amendment right to view pre-execution procedures. Whatever right to public access to executions that may exist, the right may be qualified by administrative regulations reasonably related to the safety of inmates, prison staff and others within the prison walls.(6) On their face, OAR 291-024-0065, OAR 291-02-0070 and OAR 291-024-0080 are constitutional exercises of the authority granted to the Department to promulgate rules to insure the safety of those involved in the administration of executions.

II. THE RIGHT OF THE DEPARTMENT TO LIMIT DISCLOSURES ABOUT PERSONS ENGAGED IN THE EXECUTION PROCESS

Petitioners also contend that OAR 291-024-0017(2)(b), (c) and (e) and OAR 291-024-0020(3)(d)(D) violate Article I, section 8, and the First Amendment because they limit freedom of expression. OAR 291-024-0017 provides:

“(1) Persons invited by the Superintendent of the Oregon State Penitentiary (‘Penitentiary’) who wish to attend and witness the execution of a Department inmate shall sign and strictly observe an access agreement drawn by the department that establishes the terms and conditions of access to the Penitentiary for the purpose of attending and witnessing the execution. * * *

“(2) Terms and Conditions of Access: The witness access agreement shall specify, at a minimum, the following terms and conditions of access to the Penitentiary:

“* * * * *

“(b) Covenant of Nondisclosure. In order to protect the safety and security of Department staff and other persons involved in the conduct of the execution and the supervision of the condemned inmate, and the safety and security of their families, and to protect the personal privacy interests of such persons and insure their anonymity, witnesses shall not disclose either directly or indirectly in any manner whatsoever the physical appearance, attributes, characteristics or any other fact that would have a tendency to reveal the identity of any person, excluding only the Superintendent, that is directly involved in the conduct of the execution or supervision of the condemned inmate * * *.

“* * * * *

“(C) * * * The covenant of nondisclosure will not apply to any information now or hereafter voluntarily disseminated by the Superintendent or Department to the public, or which otherwise becomes part of the public domain through lawful means.

“(c) Remedies. Witnesses shall agree that in the event that they disclose information in violation of the access agreement, the Department is entitled to specific performance, including immediate issuance of a temporary restraining order or preliminary injunction enforcing the access agreement, and to judgment for damages caused by the witness’ breach, and to any other remedies provided by law.

“(d) Special Terms and Conditions of Access Applicable to Media Witnesses. Media witnesses, in addition to observing the general terms and conditions of access and covenant of nondisclosure applicable to all witnesses, shall return to the Oregon Department of Corrections Media Center (‘Media Center’) at the Penitentiary immediately following the execution to brief those media representatives assembled regarding their observations of the execution and to answer the media representatives’ questions. Media witnesses shall not file their own reports until after they have completed their responsibilities as pool reporters. Any media witness who fails to adhere to the terms and conditions of the access agreement may be barred from further access to the Penitentiary for purposes of attending, witnessing and reporting on executions. The Department may, in its discretion, also bar all other representatives of the media organization represented by the media witness.”

OAR 291-024-0020(3)(d)(D) provides:

“(d) In order to enter the secure perimeter of the Penitentiary, all persons and witnessing the execution shall:

“* * * * *

“(D) Sign and agree to abide by the terms of the witness access agreement, as provided in OAR 291-024-0017.”

In substance, these rules require that all persons invited to an execution must agree to certain restrictions on their freedom of expression in order to witness an execution. The issue is whether the imposition of such restrictions violates Article I, section 8, and/or the First Amendment.

It is noteworthy that there is no statutory right for the media to attend an execution. ORS 137.473(1) provides a statutory right of access to only certain individuals. It provides, in part:

“At the request of the defendant, the superintendent shall allow no more than two clergymen designated by the defendant to be present at the execution. At the discretion of the superintendent, no more than five friends and relatives designated by the defendant may be present at the execution. The superintendent shall allow the presence of any peace officers as the superintendent thinks expedient.”

Rather, they argue that the rules act as an unconstitutional prior restraint on the expression of those who are invited to attend the execution pursuant to the statute. We assume without deciding that petitioners can attack the constitutionality of the rules even if they are not among the enumerated persons in the statute. More importantly, the rules act as a restraint on those members of the media who have been invited to witness the execution. The restrictions prevent all persons who view an execution from disclosing the identity of the officials involved in the execution process.

The Department points out that the restrictions are for the purpose of ensuring the privacy and the safety of the Department’s employees who are involved in the execution process. OAR 291-024-0005(3)(a) provides that the Department must ensure that death sentences are carried out in a manner to provide for “safety and security of Department staff and other person directly involved in the execution process.” OAR 291-024-0017(2)(b) provides that “[i]n order to protect the safety and security of Department staff and other persons involved in the condcut of the execution * * * and to protect the personal privacy interests of such persons and insure their anonymity, witnesses shall not disclose” their identity.

We turn first to petitioners’ contention that OAR 291-024-0017(2)(b), (c) and (e) and OAR 291-024-0020(3)(d)(D) violate Article I, section 8, of the Oregon Constitution. Petitioners argue that the two rules constitute an unconstitutional limitation on their right freely to express to others what they observe at an execution. They rely on the court’s holding in State ex rel Sports Management News v. Nachtigal, 324 Or 80, 921 P2d 1304 (1996). In that case, the statute in issue required the trial court to preserve the secrecy of an alleged trade secret and mandated that any person involved in the litigation not disclose an alleged trade secret without prior court approval. ORS 646.469. The court held that the statute on its face violated Article I, section 8, because it restricted the content of speech and the restrictions did not fall within a historical exception to section 8. Petitioners contend that the facts in this case are parallel to those in Nachtigal because

“[h]ere, by administrative rule, the [Department] is attempting to prevent disclosure of facts in order to preserve in secrecy the identity of persons involved in the execution process. In Nachtigal, it was a statute attempting to prevent the disclosure of trade secrets. In neither case, here or in Nachtigal, is the subject of expression, the identity of personnel or the identity of trade secrets, one that is excluded from speech and expression protected by Article I, section 8, of the Oregon Constitution. In each case, here and in Nachtigal, the focus of the law is on nondisclosure of facts.”

This case differs from Nachtigal. What petitioners fail to point out about the holding in Nachtigal is that the court determined that the statute in that case violated section 8 because it could be applied to “third-party publishers,”(7) who did not learn about a trade secret illegally or who were not under a duty to preserve a trade secret. The court explained that its holding did not encompass the situation in which the prior restraint on expression was applied only to an employee bound to a confidentiality agreement or against a publisher who had broken the criminal law to obtain trade secrets. Id. at 89 n 8. Here, the restrictions are imposed as a condition to the acceptance of the Department’s invitation to attend an execution. The information about who is involved in the execution process is not public information and is not accessible unless the witnesses or media representatives first agree to the Department’s restriction. There is no possible application of the rules to “third-party publishers.” Because petitioners are bound by an agreement that requires them to keep the identities of prison officials confidential, the holding in Nachtigal is inapposite.

Typically, when statutes or rules provide for a prior restraint on the content of expression as do the rules in this case, the statute or rule is unconstitutional unless a historical exception exists. State v. Robertson, 293 Or 402, 412, 416-17, 433-34, 649 P2d 569 (1982). However, the content/historical exception analysis does not necessarily apply under circumstances where the restraint on expression is not a general prohibition against anyone who might disclose or discuss the details of a government activity, but is a restraint on the expression of one who undertakes to exercise official responsibility that carries with it attendant obligations of confidentiality. For instance, in In re Lasswell, 296 Or 121, 125, 673 P2d 855 (1983), the issue was whether a restriction in a disciplinary rule on a prosecutor that prohibited communication about a pending prosecution was constitutional under section 8. The court explained that the Robertson test was not controlling, because the rule at issue

“is not a general prohibition against anyone who might disclose or discuss facts bearing on a pending criminal prosecution. The parts of [the rule] involved here are addressed specifically to ‘[a] lawyer * * * associated with the prosection of a criminal matter.’ And the potential sanction, though of course serious to a lawyer, is not punitive but professional. It is civil, not penal. The provisions relevant here are not even addressed to all lawyers but to prosecutors, who are officially and professionally responsible for proceeding with due regard for the prosecuted person’s right to a fair trial by an impartial jury.”

In this case, the restraint on expression contemplated by the rules is also not a general prohibition against expression. Instead, it is directed at witnesses to executions who receive a quid pro quo in exchange for their agreement to keep certain observations confidential, i.e., the ability to view an execution. The rules expressly provide that “witnesses” enter into an agreement to keep confidential the identity of the persons involved in the execution process as a condition of access to information. Moreover, the covenant of nondisclosure is limited in nature. It does not apply to “any information now or hereafter voluntarily disseminated by the Superintendent or Department to the public, or which otherwise becomes part of the public domain through lawful means.” OAR 291-024-0017(1)(C). Thus, under the rules, a witness or media representative agrees to waive limited rights of expression under section 8 in exchange for the opportunity to be present at an execution.

In that sense, the waiver contemplated by the rules is analogous to a public employee who enters into an agreement with a public body that requires that the employee personally not exercise certain constitutional rights in exchange for the privilege of working for the public body. A public body is not free to require unconstitutional prerequisites to the attainment of official positions. On the other hand, it does have the authority, without violating the constitution, to enforce rules that require employees to waive their constitutional rights so long as the waiver bears a reasonable relationship “to the promotion of efficiency, integrity, and discipline of the public service and [the rules] are not arbitrary or discriminatory.” Minielly v. State, 242 Or 490, 498-99, 411 P2d 69 (1966).

Our inquiry then is whether the underlying purposes for the rules in this case have a reasonable nexus to the restraint that they impose on expression. The rules provide that witness are not allowed to “reveal the identity of any person, excluding only the Superintendent, that is directly involved in the conduct of the execution or supervision of the condemned inmate.” Their purpose is expressed within the rule itself:

“[T]o protect the safety and security of Department staff and other persons involved in the conduct of the execution * * *, and the safety and security of the their families, and to protect the personal privacy interests of such persons and insure their anonymity.”

The Department argues that “allowing the identities of those who carry out the sentence of death to become public would increase the chances that those person would be subjected to attacks by other inmates, thereby threatening institutional security.” When it comes to determining what is in the best interest for the safety and security of the prison under the circumstances, again, we elect to defer to the Department’s judgment.

We conclude that the reach of the rules prohibiting the revelation of the identity of prison officials involved in the execution process is reasonably related to the promotion of the safety of prison officials, their families and others who work or reside within the penitentiary. Therefore, they do not violate section 8.

Petitioners also argue that the rules violate the First Amendment. Under the First Amendment, when one voluntarily assumes “a duty of confidentiality, governmental restrictions on disclosure are not subject the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public.” United States v. Aguilar, 515 US 593, 606, 115 S Ct 2357, 132 L Ed 2d 520 (1995). Instead, the Court proceeds to balance the government’s interest in imposing the restriction against the restraint on the constitutional right. For instance, the court in United States v. Marchetti, 466 F2d 1309, cert den 49 US 1063 (1972), ruled that the federal government could constitutionally impose secrecy requirements on its employees (in that case, a central intelligence agency officer) and enforce the restrictions through a system of prior censorship, so long as the information was classified and not officially disclosed to the public. On balance, we hold that the interests of safety of prison personnel outweigh the interest of reporting the identify of those involved in the execution process. As we previously discussed, the rules provided for a limited waiver rights of expression and are reasonably related to the promotion of safety of prisons officials, their families and others who work or reside within the penitentiary. Accordingly, we conclude that the rules do not violate the First Amendment.

Petitioners’ other arguments do not require discussion in light of our holdings and the rationales underlying them. In summary, we hold that OAR 291-024-0017(2)(b), (c) and (e), OAR 291-024-0020(3)(d)(D), OAR 291-024-0065, OAR 291-024-0070 and OAR 291-024-0080 do not violate Article I, section 8, or Article I, section 10, of the Oregon Constitution or the First Amendment to the United States Constitution in any way that petitioners assert.

Rules held valid.

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1. ORS 183.400 provides, in part:

“(1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. * * *

“* * * * *

“(4) The court shall declare the rule invalid only if it finds that the rule:

“(a) Violates constitutional provisions[.]”

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2. In AFSCME, 315 Or at 79, the court explained:

“We emphasize at the outset the limited scope of the Court of Appeals’ review (and ours) under ORS 183.400. Aside from questions that might arise concerning the facts surrounding the process of adopting a rule-questions not raised in this case-judicial review under ORS 183.400 is limited to the face of the rule and the law pertinent to it. Numerous individual fact situations can arise under any rule, but judicial review of the rule as applied to each of those situations is reserved to other forums. ORS 183.400(1). See, e.g., ORS 183.482, ORS 183.484 (providing for judicial review of agency orders in various fact-specific situations). Petitioners’ petition for review in this case refers to actions alleged to be occurring pursuant to the rules at issue here, but the legality of any particular application of the rules is premature, and not subject to review under ORS 183.400.”

The court applied its holding in AFSCME regarding the scope of appellate review under ORS 183.400 in GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 464-65, 900 P2d 495 (1995), cert den 517 US 1155 (1996).

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3. Moreover, the Supreme Court has consistently defined the word “adjudication” in other contexts as an event that occurs in judicial proceedings. In Vasquez v. Courtney, 272 Or 477, 479, 537 P2d 536 (1975), the court stated that “[a]n ‘adjudication’ is defined as ‘the giving or pronouncing a judgment or decree in a cause.’ Black’s Law Dictionary (Rev 4th Ed 1968).” In State v. Hoffman, 236 Or 98, 103, 385 P2d 741 (1963), the court defined “adjudication” as “a final judgment of the court, that is, it involves an exercise of the judicial power in hearing and determining the issues and rendering a judgment thereon.”

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4. In fact, it is far from clear that section 8 extends to access to government records. In State ex rel KOIN-TV v. Olsen, 300 Or 392, 400-11 and n 17, 711 P2d 966 (1985), the court said that it is not self-evident that section 8 entitles a television station to copy a videotape of a deposition that had been played in open court and that it had not been given any persuasive rationale that would support such a claim.

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5. Justice Linde, in his concurrence in State ex rel Oregonian Pub. Co. wrote:

“[Article I, section 8,] assures reporters and editors, along with any other observer or interested citizen, the freedom to discuss what they know, or think they know, or surmise, or advocate, without fear of sanctions beyond civil damages for private harm. * * * But this unrestrained freedom to speak, write, print, and express opinions ‘on any subject whatever’ is not itself an ‘Open, Sesame’ to public offices, or records, or other information. It does not give journalists a constitutional claim to the information which it gives them the freedom to publish. That they are left to get for themselves.” 289 Or at 287.

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6. We need not decide whether members of the public have a right to attend the execution itself under the First Amendment or otherwise on the ground that, historically, executions were public events. Petitioners do not argue that they have been denied access to executions, only to the pre-execution procedure.

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7. The plaintiff-relator in Nachtigal was the publisher of a weekly trade newsletter, which announced that a shoe manufacturer was planning to introduce a new design of running shoe. The manufacture alleged that the newsletter had obtained a copy of its internal, confidential specifications.

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