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Pamplin Media Group v. City of Salem

Court of Appeals of Oregon

September 6, 2018

PAMPLIN MEDIA GROUP, dba Woodburn Independent, Plaintiff-Appellant,
v.
CITY OF SALEM, Defendant-Respondent.

          Argued and submitted May 16, 2017

          Marion County Circuit Court 15CV11119; Tracy A. Prall, Judge.

          Jack L. Orchard argued the cause for appellant. Also on the briefs were Adele J. Ridenour, Ball Janik, LLP, and Amy Heve rly.

          Katrina L. Brown argued the cause and fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Lagesen, Judge. [*]

         [293 Or.App. 756] Case Summary: Plaintiff in this public records case is the publisher of the Woodburn Independent newspaper. After learning of the arrest of a former Woodburn-area resident on allegations that he had sexually abused a minor, one of plaintiff's reporters asked the police department of the City of Salem, defendant in this case, to release the record of that arrest. The city refused to release any information about the arrest, asserting that all reports related to the police investigation and the subsequent arrest were compiled under statutes governing certain reports of child abuse and mandating that the reports be investigated; consequently, the city maintained, all the information in those reports, including all information regarding the arrest, was excluded from disclosure to the public. When plaintiff subsequently fled a declaratory judgment action against the city, the trial court adopted the city's interpretation of the relevant statutes, granted the city's motion for summary judgment, denied plaintiff's motion for summary judgment, and entered a general judgment of dismissal. On appeal, plaintiff argues that the trial court erred in denying its motion for summary judgment and granting summary judgment to the city, because the city failed to show that the arrest information that plaintiff had requested was in a public record exempt from disclosure under ORS 419B.035. Held: The statutory context of the term "report of child abuse" in ORS 419B.015(1) demonstrates that the term refers only to a report of child abuse made in accordance with the reporting procedure set out in ORS 419B.015(1) and not to every document, including one generated during an investigation, that happens to include information related to abuse. Moreover, because the provisions of ORS 419B.010 to 419B.050 do not govern or even address the arrest of a perpetrator of child abuse, the arrest of a perpetrator is not made "under" the provisions of ORS 419B.010 to 419B.050. Similarly, because those provisions neither authorize nor require any agency to keep records of such arrests, reports containing information about an arrest were not necessarily reports or records "compiled under" those provisions. The city admitted that it had a report or reports regarding the relevant arrest, and the record on summary judgment did not demonstrate that the report or reports containing the requested information were "compiled under the provisions of ORS 419B.010 to 419B.050." ORS 419B.035. Thus, the trial court erred in granting summary judgment for the city. Moreover, because the city had the burden of showing that the record or records containing the requested information were exempt from disclosure and it failed to do so, plaintiff was entitled to summary judgment in its favor. Accordingly, the Court of Appeals reversed and remanded for entry of a judgment declaring plaintiff's right to inspect the report or reports containing the requested information, redacted to omit information that plaintiff had conceded was outside the scope of its request.

         [293 Or.App. 757] DEHOOG, P. J.

         Plaintiff in this public records case is the publisher of the Woodburn Independent newspaper. After learning of the arrest of a former Woodburn-area resident on allegations that he had sexually abused a minor, one of plaintiffs reporters asked the police department of the City of Salem, defendant in this case, to release the record of that arrest. See ORS 192.345(3) (requiring disclosure to the public of "the record of an arrest").[1] The city refused to release any information about the arrest, asserting that all reports related to the police investigation and the subsequent arrest were "compiled under" statutes governing certain reports of child abuse and mandating that the reports be investigated; consequently, the city maintained, all the information in those reports, including all information regarding the arrest, was excluded from disclosure to the public. See ORS 419B.035 (excluding "reports and records compiled under the provisions of ORS 419B.010 to 419B.050" from public disclosure). When plaintiff subsequently filed a declaratory judgment action against the city, the trial court adopted the city's interpretation of the relevant statutes, granted the city's motion for summary judgment, denied plaintiffs motion for summary judgment, and entered a general judgment of dismissal.[2]

         On appeal, plaintiff argues that the trial court erred in denying its motion for summary judgment and granting summary judgment to the city, because the city failed to show that the arrest information that plaintiff had requested was in a public record exempt from disclosure under ORS 419B.035. As explained below, we agree. Accordingly, we reverse and remand.

         [293 Or.App. 758] When error is assigned to both rulings on cross-motions for summary judgment, we review both rulings to determine whether there are any disputed issues of material fact and, if not, whether either party was entitled to prevail as a matter of law. Port of Portland v. Ore. Center for Environ. Health, 238 Or.App. 404, 408, 243 P.3d 102 (2010), rev den, 350 Or. 230 (2011).

         The facts are undisputed. In February 2015, Francke, a reporter with plaintiff, requested that the city's police department disclose the "full investigation/arrest report" regarding an incident report dated January 14, 2015, and involving Klain Joseph Pippert. The city denied Francke's request, explaining that "[t]his case involves a juvenile victim of abuse. In accordance with the personal privacy exemption of ORS 192.502; ORS 419B.035Q) & 419B.005, the report is not available for release." Francke responded by submitting a second request the next day, this time seeking "case/arrest, redacted as necessary to protect juvenile victims and otherwise provided by ORS." The city responded, "DENIED PER LEGAL DEPT & OR ORS." Francke petitioned the Marion County District Attorney to review the denial. See ORS 192.415 (requiring district attorneys to review certain denials of public records requests). Relying on ORS 419B.035(1), the district attorney agreed with the city that the records could not be disclosed.

         Plaintiff then filed this declaratory judgment action, alleging the above facts and requesting an order directing the city "to immediately provide a redacted copy of the City of Salem Police Department's arrest report relating to Klain Joseph Pippert (Incident No. 15002198), removing from such report any identifying information concerning any juvenile." In its answer, the city contended that, to the extent that it had materials responsive to plaintiff's request, they were not disclosable:

"[N]o document exists entitled 'arrest report' as requested by Plaintiff. There are incident and supplemental reports prepared by personnel at the Salem Police Department; those reports have the number SMP 15002198 assigned to them. Defendant City of Salem has regarded Plaintiffs request for an 'arrest report' as a request to obtain the incident and supplemental reports numbered SMP 15002198. [293 Or.App. 759] Defendant City of Salem asserts that the reports numbered SMP 15002198 may not be disclosed in either redacted or unredacted form."

         Both parties moved for summary judgment. In its motion for summary judgment, the city reasoned that ORS 419B.035(1) prohibits disclosure of any documentation related in any way to an investigation of child abuse; as a result, all of the reports responsive to plaintiff's request- those numbered SMP 15002198 in the police department's case files-were exempt from disclosure.[3] Moreover, the city asserted, even if ORS 419B.035(1) allowed it to disclose some part of the case file, "there is no separate document entitled 'arrest report,' only incident and supplemental reports. See Defendant's Answer, paragraph 6. Therefore, notwithstanding the prohibitions set forth in ORS 419B.035, disclosure of an 'arrest report' is impossible." The only materials that the city submitted in support of its own motion or in response to plaintiff's cross-motion for summary judgment were copies of plaintiff's public records requests and the city's corresponding denials.

         Plaintiff's position, on the other hand, was that it did "not seek investigatory information beyond" the items that ORS 192.345(3) lists as comprising "the record of an arrest or the report of a crime," which include biographical information about the arrested person, the offense involved, the conditions of release, the identity of and biographical information concerning the complaining party and the victim, the agency conducting the investigation and the investigation's length, the circumstances of the arrest, and any information necessary "to enlist public assistance in apprehending fugitives from justice."[4] Plaintiff contended that the arrest report-or, in plaintiff's words, "whatever report contains the arrest information" it had requested-"is not a [293 Or.App. 760] report compiled under ORS 419B.010 to 419B.050" and thus potentially excluded from disclosure, because "[t]he arrest record focuses on the arrestee and the circumstances of the arrest," while "a child abuse report does not deal with criminal charges." Plaintiff agreed with the city, however, that the sexual abuse at issue constituted child abuse for purposes of the child-abuse-reporting statutes. See ORS 419B.005(1)(D) (defining "abuse" to include "[s]exual abuse, as described in ORS chapter 163").

         After a hearing, the trial court ruled that "any report, any report of arrest, any kind of report related to" child abuse, "is protected" and, therefore, that ORS 419B.035 prohibits its disclosure. Based on that understanding, the court granted the city's motion for summary judgment and denied plaintiff's motion.

         On appeal, the parties reprise the arguments that they made to the trial court. Before addressing those arguments, we summarize the relevant law.

         Oregon has a strong public policy in favor of disclosure of public records.

"Writings coming into the hands of public officers in connection with their official functions should generally be accessible to members of the public so that there will be an opportunity to determine whether those who have been entrusted with the affairs of government are honestly, faithfully and competently performing their function as public servants."

American Civil Liberties Union v. City of Eugene, 360 Or. 269, 281, 380 P.3d 281 (2016) (ACLU) (internal quotation marks omitted). That public policy is codified in ORS 192.314(1), which provides that "[e]very person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.338, 192.345 and 192.355." In a proceeding brought to require a public body to disclose public records, ...


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