City of Portland v. Kessler ( 2024 )

No. 539 August 7, 2024 189
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
CITY OF PORTLAND,
Plaintiff-Appellant,
v.
Alan Lloyd KESSLER,
Defendant-Respondent.
Multnomah County Circuit Court
20CV38625; A178189
Shelley D Russell, Judge.
Argued September 20, 2023.
Fallon Niedrist argued the cause and filed the briefs for
appellant.
Tim Cunningham argued the cause for respondent.
Also on the brief were Seth R. Tangman and Davis Wright
Tremaine LLP.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Affirmed.
190 City of Portland v. Kessler
SHORR, P. J.
Plaintiff, the City of Portland (the city), appeals
from a general judgment granting defendant’s motion for
summary judgment, declaring that public employee per-
sonal cell phone numbers were not exempt from disclosure
under ORS 192.355(3) when the records containing the per-
sonal cell phone numbers were not “personnel records.” The
judgment further concluded that the city’s refusal to provide
the requested records to defendant at a reasonable fee was a
violation of Oregon’s public records law. The city asserts that
the circuit court erred in its interpretation of the applicable
law and maintains that public employee personal cell phone
numbers appearing in the records that defendant seeks are
exempt from disclosure. We conclude that public employee
personal cell phone numbers contained in the requested
records are not exempt from disclosure under the public
records law. As a result, we affirm.
In 2020, defendant submitted a public records
request for records from the city regarding city-issued
cell phones, including the metadata of all numbers that
exchanged text messages with city-issued cell phones, which
is stored and archived by a service known as “Smarsh.”
Defendant’s request stated:
“Please provide an export of the Date, Sender, and
Recipients fields for every message stored in or exportable
from Smarsh. If it [is] possible to include names or other
identities of the senders and recipients please include those
as well.”
The Smarsh data included the date and time of messages
and the phone number of the sender and receiver, but did
not include any information that identified the individual
connected to each number, and did not include the content
of the messages. In response to the request, the city main-
tained that it would need to have a staff member review the
data “for redaction of employee personal phone numbers,”
which the city claimed were exempt from disclosure pursu-
ant to ORS 192.355(3).1 Based on the city’s quoted cost for
1
ORS 192.355(3) (2019) exempted from disclosure “public body employee
or volunteer * * * residential telephone numbers, personal cellular telephone
numbers, * * * and other telephone numbers contained in personnel records
Cite as 334 Or App 189 (2024) 191
review of the data prior to its release, defendant estimated
that the request would be cost prohibitive.
Pursuant to public records processes, defendant
petitioned the Multnomah County District Attorney for a
ruling regarding the request. The District Attorney issued
an order granting defendant’s petition, concluding that ORS
192.355(3) applied only to personal information of public
employees contained in personnel records, and that the cell
phone data requested by defendant did not constitute “per-
sonnel records,” and was therefore not exempt.2
The city subsequently filed an action in circuit
court for declaratory relief, seeking a declaration that city
employee personal cell phone numbers and other personal
data is exempt from disclosure under ORS 192.355(3),
whether contained in an employer personnel record or else-
where. Defendant counterclaimed, seeking a declaration
that the requested records are not subject to the exemption
and that the city violated public records law in refusing to
produce the requested records without redaction. Both par-
ties moved for summary judgment, having jointly stipulated
to the pertinent facts. The circuit court granted defendant’s
motion for summary judgment and denied the city’s motion,
concluding that “public employee cell phone numbers are
not exempt from disclosure under ORS 192.355(3) when the
records sought are not contained in ‘personnel records.’ ”
The circuit court further concluded that the city’s refusal to
provide the requested records to defendant at a reasonable
fee was a violation of public records law requirements. The
court issued a general judgment to that effect. The city filed
this appeal.
Although this case was decided on cross-motions for
summary judgment, the ultimate question in this case is one
of statutory interpretation in which we employ the familiar
maintained by the public body that is the employer or the recipient of volunteer
services.” The statute was amended while this appeal has been pending, remov-
ing the word “personnel.” Or Laws 2023, ch 50, § 1. All references in this opinion
are to the version of the statute in effect at the time of the proceedings below.
2
The order additionally addressed arguments that the parties raised under
another public records exemption, ORS 192.355(2). The parties raise no argu-
ments on appeal regarding that exemption. We therefore do not discuss the con-
tents of that portion of the district attorney’s order.
192 City of Portland v. Kessler
framework set forth in State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009), where we consider the statute’s text in
context and legislative history to the extent it is useful. Our
role when interpreting a statute is “to ascertain and declare
what is, in terms or in substance, contained therein[.]” ORS
174.010. Our goal in construing a statute is to “pursue the
intention of the legislature if possible.” ORS 174.020. “In
construing a statute, [a] court is responsible for identifying
the correct interpretation, whether or not asserted by the
parties.” Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).
We begin with the text of the statute. ORS 192.355
states, in relevant part:
“The following public records are exempt from disclosure
under ORS 192.311 to 192.478:
“* * * * *
“(3) Upon compliance with ORS 192.363, public body
employee or volunteer residential addresses, residential
telephone numbers, personal cellular telephone numbers,
personal electronic mail addresses, driver license numbers,
employer-issued identification card numbers, emergency
contact information, Social Security numbers, dates of
birth and other telephone numbers contained in personnel
records maintained by the public body that is the employer
or the recipient of volunteer services.”
The parties’ primary disagreement concerns the
phrase “contained in personnel records,” and whether it
modifies the entire list of categories of information, or only
“other telephone numbers.” Relying on the doctrine of the last
antecedent,3 the city maintains that the grammatically cor-
rect reading of the list of exempt information concludes with
the item “other telephone numbers contained in personnel
3
The doctrine has been described as follows:
“Referential and qualifying words and phrases, where no contrary inten-
tion appears, refer solely to the last antecedent. The last antecedent is the
last word, phrase, or clause that can be made an antecedent without impair-
ing the meaning of the sentence. * * *
“Evidence that a qualifying phrase is supposed to apply to all anteced-
ents instead of only to the immediately preceding one may be found in the
fact that it is separated from the antecedents by a comma.”
State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996) (internal quotation marks and
citations omitted).
Cite as 334 Or App 189 (2024) 193
records.” Under that interpretation, the city asserts that
employee personal cell phone numbers are exempt no matter
where they appear in records maintained by the public body
that is the employer. Defendant asserts that a mechanical
application of the doctrine of the last antecedent is contrary
to the natural reading of the text, which he maintains con-
tains three parts: what defendant refers to as the “condition
precedent” of compliance with ORS 192.363; the list of cate-
gories of information; and the limiting phrase “contained in
personnel records maintained by the public body that is the
employer or the recipient of volunteer services.”4
We conclude that the phrase “contained in per-
sonnel records” is a part of the rest of the limiting phrase
“maintained by the public body that is the employer or the
recipient of volunteer services,” and that it therefore applies
to the entire list of categories of information, including per-
sonal cell phone numbers. That is the only interpretation
that makes logical sense for the entire sentence. Were we
to accept the city’s proposed interpretation, it would result
in, for example, an exemption for “residential addresses
maintained by the public body” and “residential telephone
numbers maintained by the public body,” as opposed to
an exemption for those pieces of information contained in
records maintained by the public body. We read the verb
“maintained” to apply to the word “records” and not to the
individual categories of information themselves. This read-
ing is consistent with other statutes in ORS chapter 192,
which repeatedly refers to the maintenance of records.
See, e.g., ORS 192.018 (requiring agencies to have written
policies regarding use, retention and ownership of records
to ensure “that public records are being maintained and
4
As noted above, the word “personnel” has since been removed from the stat-
ute. Or Laws 2023, ch 50, § 1. The parties submitted memoranda of additional
authorities, each arguing that the subsequent amendment supports their inter-
pretation of the statute. We reiterate our long-standing position that subsequent
amendments are not probative in the interpretation of a statute. State v. Merrill,
303 Or App 107, 117, 463 P3d 540 (2020), adh’d to as modified on recons, 309
Or App 68, 481 P3d 441, rev den, 368 Or 402 (2021) (“[I]n general, the views leg-
islators have of existing law may shed light on a new enactment, but it is of no
weight in interpreting a law enacted by their predecessors. A later legislature’s
interpretation of an earlier legislature’s intent may be incorrect. Thus, the proper
inquiry focuses on what the legislature intended at the time of enactment and
discounts later events.” (Internal quotation marks and citations omitted.)). We
therefore do not consider the recent amendment in reaching our conclusion.
194 City of Portland v. Kessler
managed consistently”); ORS 192.108 (“Each state agency
or political subdivision shall maintain a public record or
accurate copy of a public record in accordance with a reten-
tion schedule * * *.”); ORS 192.311 (defining “custodian” to
include “[a] public body mandated * * * to create, maintain,
care for or control a public record”). We do not consider the
city’s reading, which removes any reference to the first nine
categories of information being contained in records of any
kind, to be a textually logical reading of the statute.
Although our interpretation is contrary to the doc-
trine of the last antecedent, that doctrine “is only a textual
aid, and its application yields to more persuasive contextual
evidence of the legislature’s intent and to common sense.”
Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App
251, 270, 154 P3d 734, rev den, 343 Or 690 (2007). We con-
sider as supportive context the purpose of public records law
and previous case law describing the general rules of con-
struction of public records exemptions.
The underlying legislative policy of Oregon public
records law is that disclosure “is the general rule to which
expressly provided exemptions are the exceptions.” City
of Portland v. Rice, 308 Or 118, 121, 775 P2d 1371 (1989).
Oregon has a “strong and enduring policy that public records
and governmental activities be open to the public.” Jordan v.
MVD, 308 Or 433, 438, 781 P2d 1203 (1989). We have sum-
marized our approach to the interpretation of public records
law as follows:
“[E]xemptions from disclosure must be ‘expressly’ stated in
the law. [ORS 192.314] forbids giving effect to any implicit
and broader meaning of a statutory exemption from disclo-
sure under [ORS 192.335, 192.345 and 192.355] than what
the statute ‘expressly’ allows. * * *
“Oregon courts have paraphrased this rule of construc-
tion of the Public Records Law to note that disclosure is the
rule. Exemptions from disclosure are to be narrowly con-
strued. A ‘narrow construction’ of a public records exemp-
tion is one that favors disclosure. That ‘narrow construction’
rule can be applied to resolve ambiguity about the scope of a
statutory public records exemption. The ‘narrow construc-
tion’ rule means that, if there is a plausible construction of
Cite as 334 Or App 189 (2024) 195
a statute favoring disclosure of public records, that is the
construction that prevails.”
Colby v. Gunson, 224 Or App 666, 676, 199 P3d 350 (2008)
(internal quotation marks and citations omitted).
The principle of narrow construction supports our
conclusion that the listed categories of information are
exempt only when they are contained in personnel records.
That is a plausible interpretation of the text of the exemp-
tion, as discussed above, and results in the narrowest appli-
cation of the exemption.5 The city’s interpretation of the
“contained in personnel records” clause as applying only to
“other telephone numbers” would dramatically increase the
class of documents subject to the exemption: all incidents
of public employees’ personal information appearing in doc-
uments maintained by the employer would be subject to
review and redaction, regardless of where the information
appeared in the public body’s records.
Finally, we consider legislative history to the extent
that it is helpful. The exemption for personal information
of public employees was originally established in 1997 and
was limited to addresses and telephone numbers. Or Laws
1997, ch 825, § 1. The purpose of the exemption was for the
protection of certain public employees who were particu-
larly vulnerable to harassment by the individuals that they
encountered in their jobs. Tape Recording, House Committee
on General Government, HB 2491, Mar 31, 1997, Tape 58,
side B. While recognizing that certain information would
remain accessible with persistent efforts, the bill’s sponsors
were concerned with stopping access to personal informa-
tion via a public records request to an individual’s employer.
Id. As it was originally introduced, House Bill (HB) 2491
(1997) proposed adding the exemption for addresses and
telephone numbers to former ORS 192.502 (1997), renum-
bered as 192.355 (2017):
5
Though not controlling, we note that, in addition to the district attorney
and the circuit court decisions below, the Attorney General has also reached the
same conclusion. We consider that to be supportive of the conclusion that this
interpretation of the statute is, at a minimum, “plausible.” Attorney General’s
Public Records and Meetings Manual 101 (2019) (“[ORS 192.355(3)] exempts from
disclosure various personal contact information and other personal information
about a public employee or volunteer, as long as that information is contained in
the public employer’s personnel records.”).
196 City of Portland v. Kessler
“ORS 192.502 is amended to read:
“192.502. The following public records are exempt from
disclosure * * *:
“* * * * *
“(2) Information of a personal nature such as but not
limited to that kept in a personal, medical or similar file,
and that containing the home address or telephone
number, or both, of an employee or volunteer, if the
public disclosure thereof would constitute an unreasonable
invasion of privacy, unless the public interest by clear and
convincing evidence requires disclosure in the particular
instance.”
HB 2491 (1997) (bold in original indicating additions to exist-
ing statute). The bill underwent several revisions, including
eventually making the exemption for employee addresses and
telephone numbers its own section under former ORS 192.502
(1997), and stating that it only applied to personnel records
maintained by the employer. HB 2491 (1997), -A Engrossed
(May 6, 1997); HB 2491 (1997), -B Engrossed (Jun 6, 1997).
The addition of the clause stating, “contained in personnel
records maintained by the public body that is the employer
or the recipient of volunteer services,” was in response to leg-
islators’ concerns that other public records that happened to
refer to an individual who was a public employee could poten-
tially be subject to the exemption, such as DMV records,
property records, or voter registration records unrelated to
the employee’s work. Tape Recording, House Committee on
General Government, HB 2491, Apr 30, 1997, Tape 92, side
B; see also Staff Measure Summary, House Committee on
General Government, HB 2491, May 1, 1997 (“WHAT THE
BILL DOES: Exempts from disclosure the address and tele-
phone number of public employees and volunteers found
in personnel records. * * * ISSUES DISCUSSED: desire to
keep open other types of records, such as DMV records or
voter registration records.”). We have been unable to locate
anything in the legislative history that suggests that the
inclusion of the “contained in personnel records” clause was
intended to modify only “telephone numbers.”6
6
Various additions were made over the ensuing decades, while retaining the
sentence structure beginning with home addresses and ending with telephone
numbers, followed by the clause “contained in personnel records.” See, e.g., Or
Cite as 334 Or App 189 (2024) 197
Therefore, we conclude that the phrase “contained
in personnel records” applies to the entire list of categories
of personal information, including employee personal cell
phone numbers. The city argues, in the alternative, that if
we conclude that the exemption only applies to information
contained in personnel records, that the Smarsh metadata
records at issue in this matter should qualify as “personnel
records.” We reject that alternative argument without dis-
cussion. The requested records are not subject to the ORS
192.355(3) exemption and must be disclosed. The circuit
court did not err in granting defendant’s motion for sum-
mary judgment and denying the city’s motion for summary
judgment.
Affirmed.
Laws 1999, ch 855, § 4 (adding dates of birth); Or Laws 2003, ch 803, § 5 (add-
ing Social Security numbers); Or Laws 2015, ch 26, § 1 (adding “residential” to
addresses and phone numbers and adding personal cell phone numbers, personal
email addresses, driver license numbers, employer-issued identification card
numbers, emergency contact information, and “other” telephone numbers).