Wang v. Board of Massage Therapists ( 2022 )

491
Argued and submitted September 28; affirmed on appeal, on cross-appeal,
portion of judgment dismissing second claim reversed and remanded for entry
of judgment on petition for judicial review affirming board’s order
October 26, 2022
Minfang WANG,
Plaintiff-Appellant
Cross-Respondent,
v.
OREGON BOARD OF
MASSAGE THERAPISTS,
Defendant-Respondent
Cross-Appellant.
Multnomah County Circuit Court
20CV32742; A176721
519 P3d 1281
Plaintiff appeals from a judgment that dismissed her petition for judicial
review challenging an order of the board, which refused plaintiff’s request to
disclose the investigative records that led the board to deny her application for
licensure. Plaintiff argues that she was entitled to the report pursuant to ORS
676.175(3), which provides: “If a health professional regulatory board votes to
issue a notice of intent to impose a disciplinary sanction, * * * the board shall
disclose to the licensee or applicant all information obtained by the board in the
investigation of the allegations in the notice.” Held: The disclosure requirement
applies only to “applicants” or “licensees” at the time of the records request.
Because plaintiff had withdrawn her licensure application, she was no longer an
“applicant” when she requested the report. The trial court correctly concluded
that the board was not required to disclose the report, but the appropriate dispo-
sition was to affirm the agency’s order.
Affirmed on appeal; on cross-appeal, portion of judgment dismissing second
claim reversed and remanded for entry of judgment on petition for judicial review
affirming board’s order.
Kelly Skye, Judge.
Thomas R. Benke argued the cause and filed the briefs
for appellant-cross-respondent.
Denise G. Fjordbeck, Assistant Attorney General, argued
the cause for respondent-cross-appellant. On the brief were
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Stacy M. Chaffin, Assistant Attorney
General.
492 Wang v. Board of Massage Therapists
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed on appeal; on cross-appeal, portion of judgment
dismissing second claim reversed and remanded for entry
of judgment on petition for judicial review affirming board’s
order.
Cite as 322 Or App 491 (2022) 493
KAMINS, J.
The trial court entered a judgment dismissing
plaintiff’s complaint against the Oregon Board of Massage
Therapists (board), which asserted two “claims” for relief
stemming from the denial of her application for a license.
The first claim arose under the Declaratory Judgment
Act; the second “claim” was actually a petition for judicial
review challenging an order of the board refusing plaintiff’s
request to disclose the investigative records that led the
board to deny her application for licensure. The trial court
dismissed both claims, and plaintiff appeals. The board has
filed a cross-appeal, contending that the trial court’s dis-
position on the petition for judicial review was incorrect
because, rather than dismissing that “claim,” the board’s
order should simply be affirmed. We affirm the trial court’s
dismissal of the first claim, because it sought relief that was
only available through an administrative proceeding under
the Administrative Procedures Act (APA). On the second
claim, we agree with the trial court that the board correctly
held that the records were exempt from disclosure; but the
board is correct that its order should be affirmed. On the
cross-appeal, we therefore reverse that portion of the judg-
ment dismissing the petition for judicial review and remand
for a judgment affirming the board’s order.
We recite the facts as alleged in the complaint in
the light most favorable to plaintiff, the nonmoving party.
Chang v. Chun, 305 Or App 144, 147, 470 P3d 410 (2020). In
2019, the board assessed a civil penalty against plaintiff for
practicing massage without a license, based on the report
of a board investigator. Plaintiff subsequently completed
the training requirements needed to qualify for a massage
license and applied for a license from the board. The board
issued a notice of proposed action denying her application
because of the findings of the 2019 investigation. Plaintiff
challenged that notice by requesting a contested case hear-
ing. In response, the board sent a letter alerting plaintiff
to the fact that “the Contested Case Hearing process gener-
ally costs $15,000 to $25,000.” Plaintiff responded that she
could not afford to pay that amount and asked the board for
advice. The board recommended that plaintiff obtain legal
advice and described a few options, including withdrawal of
494 Wang v. Board of Massage Therapists
the license application so that she would “avoid the contested
case hearing process and associated fees and costs that may
be assessed to you.” Plaintiff withdrew her hearing request.
She subsequently made a public records request to the board
for the report and materials from the 2019 investigation,
which the board denied. She then filed the instant case.
Plaintiff’s first claim sought a declaration that “the
board does not have the authority to collect * * * the board’s
fees and costs in defending [an] application denial or other
disciplinary sanction” and an order that the board reopen
plaintiff’s case and allow her “to continue her request for
hearing contesting the board’s denial of her application for
licensure.” As the trial court recognized, because she could
have sought the relief in a contested case proceeding before
the board, plaintiff must seek that relief directly from the
board rather than the trial court. See Salibello v. Board
of Optometry, 276 Or App 363, 367, 367 P3d 932 (2016) (“A
court lacks subject matter jurisdiction under the Uniform
Declaratory Judgments Act if some other exclusive rem-
edy exists to address the dispute” and “[w]hen the dispute
at issue involves an agency’s action, or refusal to act, the
review provisions of the APA provide the sole and exclusive
means of obtaining judicial review, and an action for declara-
tory relief is not available.”). The reasons for the requirement
that a petitioner proceed through the agency process rather
than file a civil lawsuit—often called “APA exclusivity”—
“are many, but of greatest importance is a concern that the
administrative decision-making process should not be pre-
maturely interrupted, especially where agency expertise
will play a large role in any decision on the merits.” Bay River
v. Envir. Quality Comm., 26 Or App 717, 721-22, 554 P2d 620(1976) (citing McKart v. United States, 395 US 185, 89 S Ct
1657, 23 L Ed 2d 194 (1969)); see also Ashland Drilling, Inc. v.
Jackson County, 168 Or App 624, 630, 4 P3d 748, rev den, 331 Or
429 (2000) (recognizing that APA exclusivity serves the same
purposes as the exhaustion requirement, because “the APA
establishes a comprehensive pattern for the judicial review
of administrative decisions” (internal citation omitted)).1
1
We express no opinion on the propriety of the board’s apparent practice of
informing license applicants that pursuing a contested case hearing could cost
the applicant $15,000 to $25,000.
Cite as 322 Or App 491 (2022) 495
Thus, we agree with the trial court that plaintiff’s remedy,
if any, was through the administrative process rather than
through a declaratory judgment action.
Plaintiff’s second “claim” sought judicial review of a
board order denying her request for the 2019 investigative
report. The board denied the request, because it concluded
that the report is confidential and exempt from public dis-
closure. See ORS 676.165(5) (“Investigatory information
obtained by an investigator and the report issued by the
investigator shall be exempt from public disclosure.”); ORS
676.175(1); ORS 687.081(9). Plaintiff argued that disclosure
was required under a statute relating to the processing of
complaints against health professionals. ORS 676.175(3)
provides: “If a health professional regulatory board votes to
issue a notice of intent to impose a disciplinary sanction,
* * * the board shall disclose to the licensee or applicant all
information obtained by the board in the investigation of the
allegations in the notice.” We assume for the sake of this dis-
cussion that the board’s order denying plaintiff’s request to
disclose the investigative record was an order in other than a
contested case that would be subject to review in the circuit
court. ORS 183.484 (providing for judicial review of orders
in other than a contested case). Plaintiff contends that she
had applied for a license and therefore was an “applicant”
entitled to the investigation report about her. The board
responds that, because plaintiff withdrew her application
for licensure, she was no longer an “applicant” for purposes
of the statute. We agree with the board.
A construction of ORS 676.175 confirms that the
disclosure requirement applies to a person who is involved
in an ongoing disciplinary proceeding at the time of the
records request. We begin with the text of the statute. PGE
v. Bureau of Labor Industries, 317 Or 606, 610, 859 P2d 1143(1993) (Generally, “the text of the statutory provision itself
is the starting point for interpretation and is the best evi-
dence of the legislature’s intent.”). ORS 676.175(1) provides:
“A health professional regulatory board shall keep
confidential and not disclose to the public any informa-
tion obtained by the board as part of an investigation of
a licensee or applicant, including complaints concerning
496 Wang v. Board of Massage Therapists
licensee or applicant conduct and information permitting
the identification of complainants, licensees or applicants.
However, the board may disclose information obtained
in the course of an investigation of a licensee or appli-
cant to the extent necessary to conduct a full and proper
investigation.”
ORS 676.175(3) provides an exception, allowing for disclo-
sure of investigative reports to an “applicant” in a limited
circumstance—if the board gives notice of an intent to
impose a disciplinary sanction, then an “applicant” may
obtain the report.2 As “applicant” is not defined in the stat-
ute, we assume that the legislature intended to give the
word its “plain, natural, and ordinary meaning.” State v.
Delaurent, 320 Or App 191, 195, 514 P3d 113, rev den, 370
Or 303 (2022). An “applicant” is defined as “one who applies
for something : one who makes a usually formal request
especially for something of benefit to himself” such as a job
or a scholarship. Websters Third New Int’l Dictionary 105
(unabridged ed 2002). The concept is in the present tense:
Someone who “applies” is a current candidate for a job, a
scholarship, or in this case, a license. Nothing in the statu-
tory text supports a deviation from the plain meaning of the
word “applicant” that would suggest a legislative intent that
the status of a person as an “applicant” continue indefinitely,
such that the board would be required to disclose otherwise
confidential records to former applicants or licensees not
currently involved in an administrative proceeding.
On the contrary, the statute prioritizes maintain-
ing confidentiality. ORS 676.175(1) (“A health professional
regulatory board shall keep confidential and not disclose to
the public any information obtained by the board as part of
an investigation of a licensee or applicant.”); ORS 676.175
(3)(a) - (d), (4) (preventing licensees and applicants from
obtaining certain types of information, such as the iden-
tity of witnesses, and only allowing the further disclosure
of confidential information “to the extent necessary to pre-
pare for a hearing”). The disclosure requirement is thus a
limited exception to the general rule of confidentiality that
2
The board does not argue, and thus we do not address, whether the notice
of proposed action denying plaintiff’s license application constituted a “notice of
proposed sanction.”
Cite as 322 Or App 491 (2022) 497
exists to allow current applicants or licensees to prepare for
disciplinary proceedings that affect them. As it is written,
the statute reflects a legislative intent to prohibit access to
the board’s investigative documents to all but current appli-
cants and licensees. As a result, we conclude that, unless the
person subject to investigation is an applicant or licensee
subject to discipline, they cannot obtain the documents that
implicate them.
Here, because the board had denied plaintiff’s appli-
cation and she had discontinued an effort to seek adminis-
trative review of that decision, she was no longer an “appli-
cant” when she requested the investigative report. The trial
court correctly concluded that the board was not required to
disclose the report under ORS 676.175(3).
Because, however, the second claim sought judicial
review of a final agency order, the appropriate disposition
was to affirm the agency’s order. See ORS 183.484(5)(a)
(“The court may affirm, reverse or remand the order.”). We
therefore reverse the portion of the judgment dismissing the
second claim and remand the case to the trial court with
instructions to enter a judgment affirming the board’s order.
See Hoekstre v. DLCD, 249 Or App 626, 638, 278 P3d 123,
rev den, 352 Or 377 (2012) (reaching the same result).
Affirmed on appeal; on cross-appeal, portion of
judgment dismissing second claim reversed and remanded
for entry of judgment on petition for judicial review affirm-
ing board’s order.