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Oregon Health and Science University v. Oregonian Publishing Co., LLC

Supreme Court of Oregon

October 19, 2017

OREGON HEALTH AND SCIENCE UNIVERSITY, a public corporation, Respondent on Review,
v.
OREGONIAN PUBLISHING COMPANY, LLC, a domestic limited liability company, Petitioner on Review.

          Argued and submitted March 3, 2017

         On review from the Court of Appeals CC 111216443; CA A152961.[*]

          Duane A. Bosworth, Davis Wright Tremaine LLP, Portland, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Derek D. Green.

          Roy Pulvers, Holland & Knight LLP, Portland, argued the cause and fled the brief for respondent on review. Also on the brief was Nellie Q. Barnard.

          Inge D. Wells, Assistant Attorney General, Salem, fled the brief on behalf of amicus curiae State of Oregon. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Hillary A. Taylor, Keating Jones Hughes, PC, Portland, fled the brief on behalf of amicus curiae Oregon Medical Association. Also on the brief was Lindsey H. Hughes.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, and Flynn, Justices, and Brewer, Senior Justice pro tempore. [**]

         [362 Or. 69] Case Summary:

         Defendant newspaper fled a public records request under ORS 192.490(1) with plaintiff, a public corporation that provides patient health care, seeking a list of the claimant names, attorney names, dates of alleged torts, and other information for tort claim notices received by plaintiff. Plaintiff responded that some of the requested information was exempt from disclosure pursuant to various state and federal laws. Defendant petitioned the district attorney, pursuant to ORS 192.450 and ORS 192.460, for an order directing plaintiff to disclose the requested record, which the district attorney granted, and plaintiff fled an action in circuit court, seeking a declaratory judgment that the information in the requested record that it had declined to disclose was exempt from disclosure. On the parties' cross-motions for summary judgment, the circuit court determined that the exemptions that plaintiff relied on were not available and entered a judgment requiring plaintiff to disclose the requested record. Plaintiff appealed, and the Court of Appeals reversed in part, directing the circuit court to examine the tort claim notices in question to determine if they are exempt from disclosure under ORS 192.496(1) because they contain information about the physical or mental health or psychiatric care or treatment of an individual patient.

         Held:

         For tort claim notices involving patients, (1) the requested information at issue-the claimant names, attorney names, and dates of the alleged torts-is "protected health information" that is confidential pursuant to ORS 192.553; (2) the protected health information at issue is exempt from disclosure under ORS 192.502(9)(a); and disclosure of the requested record is not required by ORS 192.420(1).

         The decision of the Court of Appeals is reversed in part and affirmed in part. The judgment of the circuit court and the supplemental judgment awarding attorney fees and costs to The Oregonian are reversed, and the case is remanded to the circuit court for further proceedings.

         [362 Or. 70] BREWER, S. J.

         This case concerns a public records request made by defendant Oregonian Publishing Company, LLC (The Oregonian), a newspaper, to plaintiff Oregon Health and Sciences University (OHSU), a public health and research university that provides patient care at its hospital, conducts research, and educates health care professionals and scientists. The circuit court ordered OHSU to disclose the requested record, and OHSU appealed. The Court of Appeals reversed and remanded to the circuit court to examine the public records at issue and then determine whether state and federal exemptions permitted OHSU to withhold some of the requested information. On review, the issues have narrowed to whether the requested record contains "protected health information" and student "education records" under federal and Oregon law and, if so, whether that information nonetheless must be disclosed pursuant to ORS 192.420(1), a provision of the Oregon Public Records Law (OPRL).[1]

         For the reasons explained below, we conclude that the requested record contains protected health information and that ORS 192.420(1) does not require the disclosure of that information. In the absence of adequately developed arguments, we decline to consider whether the part of the requested record consisting of tort claim notices filed by students contains "education records, " and, if so, whether those records are exempt from disclosure. We therefore leave undisturbed the Court of Appeals' disposition of that issue, which was to remand to the circuit court for examination of the tort claim notices.

         Accordingly, we reverse in part and affirm in part the decision of the Court of Appeals, we reverse the judgment of the circuit court and its supplemental judgment awarding attorney fees and costs to The Oregonian, and we remand to the circuit court for further proceedings.

         [362 Or. 71] I. FACTS AND PROCEDURAL BACKGROUND

         The Oregonian, through a reporter, made a public records request to OHSU, based on ORS 192.420(1), in which it sought information contained in tort claim notices received by OHSU.[2] In particular, The Oregonian's request sought:

"[A] list of tort claims filed against [OHSU] and its affiliated entities, preferably in spreadsheet form, with information dating back [five years] and including only the following types of information or data fields: claim number, claimant full name, attorney full name, date of alleged tort, date of tort claim notice, and whether it is closed or open. If you need to fully redact from the printout other data fields or information not fitting the above description, please do so."

         The Oregonian stated that it was "not requesting the text of actual tort claim notices." The Oregonian asserted that it did not seek "any information generated in the course of medical treatment, " nor was it requesting "health information of any kind." From The Oregonian's previous communications with OHSU, The Oregonian understood that providing such a list from OHSU's record database would not pose a logistical problem.

         OHSU created a record tailored to The Oregonian's request (the "requested record"). The requested record is a list in which each row represents a discrete tort claim notice and each column represents a category of information requested by The Oregonian for each tort claim notice. OHSU did not provide the requested record to The Oregonian, but, instead, responded by stating that it would comply with the public records request in part and object to it in part, as described below.

         In response, The Oregonian petitioned the Multnomah County District Attorney, pursuant to ORS [362 Or. 72] 192.450 and ORS 192.460, [3] for an order directing OHSU to disclose the requested record. OHSU responded that parts of the requested record were exempt from disclosure. As a visual explanation, OHSU's response included a table that contained rows that illustrated the types of tort claims that OHSU had received during the specified period-including professional liability claims, employment liability claims, general liability claims concerning students, general liability claims concerning patients, and other general liability claims-and columns that contained the information specified in The Oregonian's request. For each type of claim and each type of information requested, OHSU indicated in the table whether it was willing to provide that information or not. If OHSU indicated that it would not provide the information in the table due to a claimed exemption from disclosure, OHSU also cited the source of that claimed exemption.

         In all, OHSU initially claimed six exemptions that, it asserted, prohibited disclosure of parts of the requested information, including, among others, the Health Insurance Portability and Accountability Act (HIPAA) of 1996, 42 USC § 1320d to 1320d-9, and its implementing regulations known as the Privacy Rule, 45 CFR Parts 160 and 164; several exemptions under Oregon law; and exemptions pertaining to education records under the Family Educational Rights and Privacy Act (FERPA), 20 USC § 1232g.

         Based on those claimed exemptions, OHSU argued that it was precluded from disclosing claimant names, attorney names, and dates of the alleged torts for tort claim notices related to patients. Specifically with regard to attorney names, OHSU argued that patients could be identified if attorney names were disclosed and court filings that listed OHSU as a defendant were searched for those attorney names. For claims filed by students related to their education, OHSU asserted that it could not disclose the student [362 Or. 73] names. OHSU agreed to provide the requested information pertaining to other liability claims.[4]

         The district attorney ruled that the claimant names, attorney names, and dates of the alleged torts for all claims were not exempt from disclosure, and it directed OHSU to disclose the entire requested record. OHSU thereafter gave notice to the district attorney of OHSU's intent to initiate a circuit court action. OHSU then filed this action, seeking a declaratory judgment that the information in the requested record that it had declined to disclose was exempt from disclosure. The Oregonian asserted counterclaims in which it sought injunctive relief requiring disclosure of the entire requested record and a statutory award of attorney fees and costs.

         Before the circuit court, the parties filed cross-motions for summary judgment. In OHSU's motion, it asserted, pursuant to various state and federal exemptions, that it was entitled to withhold from disclosure all the information that it had declined to disclose or, in the alternative, some of that information.[5] In support of its motion, OHSU submitted an affidavit from its Director of Risk Management. The director stated that she had personally examined hundreds of tort claim notices, including many requested by The Oregonian. Based on her review of those tort claim notices, the director averred that "tort claim notices submitted to OHSU by patients or others and maintained by OHSU relating to patient care always identify one or more patients." She further stated that tort claim notices for patient claims "includ[e] the fact that the individual received care at OHSU" and "include specific information about the physical or mental health or psychiatric care [362 Or. 74] or treatment of the patient." The director continued, "Many tort claim notices provide specific and detailed information about the circumstances giving rise to the potential claim." She also stated that all tort claim notices received by OHSU are kept in OHSU's risk management office.

         OHSU also submitted an affidavit from its Executive Vice Provost, who stated that OHSU receives funds under programs administered by the United States Department of Education. He described tort claim notices received by OHSU from students:

"Tort claim notices submitted to OHSU by OHSU students always contain information identifying the student, such as the student's name, and information directly related to the student, such as a description of the time, place and circumstances giving rise to the claim. *** OHSU treats tort claim notices directly related to students as 'education records' to which FERPA applies."

         In turn, The Oregonian's motion for summary judgment sought a judgment enjoining OHSU from withholding the requested record and ordering its disclosure.

         The circuit court issued a letter opinion and order denying OHSU's motion and granting The Oregonian's motion. The court ruled that the exemptions that OHSU relied on with respect to patient claims did not apply because disclosure of the requested record could lead to the discovery of confidential information only if a listed claimant was contacted and chose to divulge confidential information. Further, the court determined that the other exemptions that OHSU relied on were not available. The circuit court then entered a general judgment requiring OHSU to disclose the requested record; pursuant to ORS 192.490(3), the court also entered a supplemental judgment for attorney fees, costs, and disbursements in favor of The Oregonian.

         OHSU appealed, arguing that the claimant names, attorney names, and dates of the alleged torts that related to patients were exempt from disclosure. In support of its argument, OHSU relied on the HIPAA Privacy Rule, which generally prohibits the disclosure of "protected health information"; ORS 192.502(8), which exempts disclosures [362 Or. 75] prohibited by federal law; ORS 192.558(1), which prohibits the unauthorized disclosure of protected health information; ORS 192.502(9)(a), which exempts from disclosure public records that are confidential; ORS 192.496(1), which exempts certain records that contain information about the physical or mental health or psychiatric care or treatment of a living person if public disclosure would constitute an unreasonable invasion of privacy; and ORS 192.502(2), which exempts personal information if public disclosure would constitute an unreasonable invasion of privacy. For claims related to students, OHSU argued that the students' names were protected under FERPA and therefore were exempt from disclosure under ORS 192.502(8). OHSU also argued that, if the Court of Appeals modified the judgment ordering disclosure, an award of attorney fees would be discretionary under ORS 192.490(3), and the supplement judgment awarding fees should be remanded to determine whether attorney fees should be awarded, and, if so, in what amount.

         In response, The Oregonian reiterated its position that it was not seeking "protected health information" or education records that are exempt from disclosure. According to The Oregonian, if OHSU complied with its request, The Oregonian would not receive any information regarding the status of any claimant-including whether the claimant was a patient or a student-or the nature or description of any claim.

         In its opinion, the Court of Appeals first noted that, by its terms, the OPRL does not require a public body to create new public records in response to a public records request. OHSU v. Oregonian Publishing Co.. LLC. 278 Or.App. 189, 194 n 3, 373 P.3d 1233 (2016). The court further stated:

"The parties assume, as do we, that the question presented in this case is whether the requested information (name of claimant, date of the alleged tort, name of claimant's attorney) can be redacted from the tort claim public records that could otherwise be provided to The Oregonian pursuant to its demand and whether OHSU may disclose any of the information in some of the tort claim notices. For purposes [362 Or. 76] of this case, the compilation of that information into a different public record does not change the issues that must be resolved."

Id.

         In considering the application of HIPAA's Privacy Rule to patient claims, the Court of Appeals assumed for the sake of its decision that the patients' names, names of the patients' attorneys, and the dates of the alleged torts in the tort claim notices constituted "protected health information." Id. at 201. The court noted, though, that the Privacy Rule allows disclosure of protected health information when disclosure is "required by law." Id. (citing 45 CFR § 164.512(a)(1)). The court then concluded that, if the requested record was not exempt from disclosure under the OPRL, its disclosure would be "required by" the OPRL and, therefore, allowed by the Privacy Rule. Id. at 202. The court further reasoned that, if disclosure of protected health information is allowed by the Privacy Rule because it is otherwise "required by" the OPRL, then disclosure is not "prohibited by federal law" under ORS 192.502(8). Id. Because it concluded that the Privacy Rule and ORS 192.502(8) did not prohibit disclosure of the protected health information in the tort claim notices, the Court of Appeals opined that whether disclosure was prohibited depended on whether an exemption from disclosure existed under the OPRL for information about the physical or mental health or psychiatric care or treatment of a living individual, ORS 192.496(1), or personal information, ORS 192.502(2). Id.

         Turning to the exemption in ORS 192.496(1), the Court of Appeals explained that the determination whether the requested record contained information about the physical or mental health or psychiatric care or treatment of a living individual and, if so, whether its disclosure would constitute an unreasonable invasion of patient privacy, necessarily would require examination of the information contained in the tort claim notices. Id. at 206. The court concluded that the circuit court had failed to apply ORS 192.496(1) correctly; instead, the circuit court had applied ORS 192.505-directing redacted disclosure [362 Or. 77] in certain circumstances[6]-and it had ordered OHSU to disclose the nonexempt material. Id. at 204. In the Court of Appeals' view, ORS 192.505 does not apply to a claimed exemption under ORS 192.496(1) because, on its face, ORS 192.505 applies only to records that contain both exempt and nonexempt material under ORS 192.501 and 192.502, and the record created by OHSU contains only nonexempt material.[7] Id. The Court of Appeals concluded that ORS 192.505 does not apply to exemptions that classify an entire record as exempt from disclosure; rather, it applies only to public record exemptions that classify information in a record as exempt from disclosure. Id. at 205 (emphasis in original). Because the circuit court had applied ORS 192.505 without reviewing the requested record to determine whether it was exempt from disclosure under ORS 192.496(1), the Court of Appeals concluded that the circuit court had erred in granting The Oregonian's motion for summary judgment.[8] Id. at 206. Accordingly, the Court of Appeals reversed and remanded with regard to the patient claims.

         Similarly, the Court of Appeals concluded that, to determine whether FERPA and ORS 192.502(8) prohibited the disclosure of claimants' names for student-related claims, the circuit court was required to examine the tort claim notices involving students to determine whether they described and directly related to activities of a student or the educational status of a student. Id. at 210-11. Because the circuit court had not reviewed the tort claim notices, the [362 Or. 78] Court of Appeals reversed and remanded with respect to the student claims as well.[9]

         We allowed review primarily to determine whether the names of the claimants and their attorneys, and the dates of the alleged torts, are exempt from disclosure as (1) "protected health information" under HIPAA (and thus unconditionally exempt from disclosure pursuant to ORS 192.502(8)); (2) protected health information that is confidential under ORS 192.558(1) (and consequently exempt from disclosure under ORS 192.502(9)(a)); (3) information about the physical or mental health or psychiatric care or treatment of a living individual that is exempt from disclosure under ORS 192.496(1); or (4) information of a personal nature that is exempt from disclosure under ORS 192.502(2).[10] As noted, The Oregonian does not seek unredacted copies of the tort claim notices themselves or specific information about claimants' health conditions, treatments, or diagnoses.

         II. ANALYSIS

         A. Standard of Review

         On review of cross-motions for summary judgment, we determine whether there are any disputed issues of material fact and whether either party is entitled to judgment as a matter of law. ORCP 47. We state the facts in the light [362 Or. 79] most favorable to the party against whom summary judgment was granted-in this case, OHSU. ...


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