concurring in part; dissenting in part.
I disagree with the majority’s position that, in filing a claim for declaratory judgment instead of delivering the 20 additional patient files demanded by the Board, petitioner “failed to respond” to the Board’s demand and thus violated ORS 679.170(6). The majority essentially agrees with the *632Board that, by not complying with the demand for information, petitioner “failed to respond.”1 In my view, the legislature did not mean “comply” by its use of “respond” in ORS 679.170(6). “[F]ail to respond,” as used in that statute, must mean a failure to take some sort of action that is reasonably intended to, and has the effect of, moving the dispute toward resolution.
The majority holds that
“[t]o allow petitioner to comply with the requirement of the statute by responding elsewhere frustrates the purpose of the statute.” 118 Or App at 629.
I disagree. The meaning of “respond” is not clear on the face of the statute and we must resort to legislative history to determine the meaning of that term as well as the legislative purpose in enacting the statute. The legislative history does not, as the majority contends, ‘ ‘ [indicate] that the statute was intended to require that the response be made to the Board” 118 Or App at 629. (Emphasis supplied.) The statute itself requires only that a petitioner ‘ ‘respond to the board’s written request for information.” ORS 679.170(6). (Emphasis supplied.) The legislative history indicates that the statute was intended to authorize the Board to take action against dentists who ignore its demands for information, not against those who fail to comply.2
*633Second, to interpret the statute, as the majority seems to do, to require a petitioner to comply with the Board’s demands for information leaves a petitioner with no avenue to challenge an overly broad demand, except perhaps on appeal from a contested case hearing. That interpretation means that ORS 183.480(3), which provides for interlocutory appeals when a petitioner shows that an “agency is proceeding without probable cause, or that the petitioner will suffer substantial and irreparable harm,” would not apply in a case such as this, because petitioner could have appealed the demand to the Board under ORS 183.410. Even though a petitioner may appeal to the acting agency, that petitioner should still have access to circuit court review under ORS 183.480(3) if he can show that he will suffer irreparable harm, or that the agency acted without probable cause. If the petitioner can make either of those two showings, appeal to the acting agency would bean exercise in futility and appeal to a court should be available.
The majority misapplies or misreads Van Gordon v. Oregon State Bd. of Dental Exam., 34 Or App 607, 579 P2d 306 (1978). That case did hold that, where there is a procedure under the APA for a petitioner to challenge an agency action, the petitioner cannot “shortcut that procedure by seeking premature equitable relief.” 34 Or App at 614. (Emphasis supplied.) However, the court in Van Gordon, citing ORS 183.480(3), upheld the lower court’s injunction against the Board’s suspension of the petitioner’s license pending the hearing, because the petitioner had no administrative remedy from that suspension. Neither did petitioner in this case, because the Board must have considered that it had the authority to make the demand and appeal to the Board would have been futile.
Although the majority does not directly address the issue, it seems to tacitly accept the Board’s unspoken position that its power to demand information pursuant to ORS 679.170(6) is broader than its subpoena power pursuant to ORS 679.250(8). The Board argues that a licensee subject to *634its authority cannot seek interlocutory judicial review of a demand for information, but the licensee can seek such review of a subpoena. If the Board is correct and interlocutory judicial review of a demand for information is unavailable, then a demand for information becomes a stronger and broader tool than a formal, and reviewable, subpoena. It seems incongruous that an agency can use its informal and nonreviewable demand process to force a party within its authority to turn over information that it could not reach using its formal, and reviewable, subpoena power.
I would hold that the Board erred in disciplining petitioner for violating ORS 679.170(6), and I dissent from that portion of the majority opinion that holds otherwise, but I concur with the remainder of the opinion.
The complaint by the Board against petitioner states:
“On July 13, 1990 the. Board issued a Demand For Information to [petitioner] pursuant to ORS 679.170(6) * * *.
“[Petitioner] did not provide any of the information sought under the Demand for Information within ten days after the date the Demand For Information was made and served.
“The foregoing constitutes the violation of ORS 679.130 which is grounds for discipline under ORS 679.140(l)(d).”
The Board found that petitioner violated the statute because he did not comply with the demand.
Dr. Ron Trotman and William J. Radakovich, both members of the Oregon State Board of Dental Examiners, testified before the House and Senate Committees on Human Resources:
“[T]he Board is proposing to add a phrase making it prohibitive [sic] practice for a licensee to fail to respond the Board’s written request for information within 10 days after demand. The Board is attempting to make its complaint processing more efficient as well as putting some clout in its Act by being able to sanction dentists who fail to respond to the Board. The Board has experienced *633situations where the dentist will not respond in writing when patient complaints are forwarded to them.” Minutes, House Committee on Human Resources 2 (March 17,1981, Testimony of Dr. Ron Trotman); Minutes, Senate Committee on Human Resources 1 (May 28,1981, Testimony of William J. Radakovich).