dissenting.
On reconsideration, the majority holds that we erred when we held that the investigation report had been submitted to the district attorney for purposes of prosecution rather than for review in response to plaintiffs petition for inspection under the public records law. I agree with that holding. However, I disagree with the majority’s ultimate holding that the district waived its right to withhold inspection of the report under ORS 342.850(8)1 by permitting the investigator, who prepared the report, to testify about some of the information in the report at a unemployment compensation hearing. As explained below, no waiver occurred.
The crucial fact on which the analysis of this issue turns is the fact that Leedom’s testimony at the unemployment compensation hearing was not based on his report that was in the district’s personnel files. Leedom had personally conducted the investigation. At the hearing, he testified from his memory about his investigation. His report was not offered into evidence, and he did not have the report before him when he testified. In other words, his testimony was based on recollections derived from personal observations and investigation, not unlike the testimony of any other witness to the same events.
In that factual context, I turn to the language of the applicable statutes and the concept of “waiver.” ORS 342.850(8) provides:
“The personnel file shall be open for inspection by the teacher, the teacher’s designees and the district school board and its designees. District school boards shall adopt rules governing access to personnel files, including rules specifying whom school officials may designate to inspect personnel files.”
*146After Leedom prepared a report of his investigation, it was submitted to the district. The district placed the report in the personnel files of the teachers who were the subject of the investigation. The district has promulgated rides in accordance with ORS 342.850(8) that do not authorize public access to its personnel files. See Portland Public School Policies and Regulations, §§ 5.20.110, 5.20.111. ORS 192.502(9) exempts such records from public inspection under the Public Records Law. Thus, the report as a source of information became exempt from public inspection as a result of the operation of the above statutes and rules and the district’s act of placing it in the personnel files.
In general, there must be an intentional relinquishment of a known right, manifested in an unequivocal manner, to make out a waiver of a legal right. Waterway Terminals v. P.S. Lord, 242 Or 1, 26, 406 P2d 556 (1965). “Although a waiver must be intentional, there is no particular formula for determining whether a waiver has occurred.” State v. Hunter, 316 Or 192, 201, 850 P2d 366 (1993). Whether a waiver occurs will depend on the particular circumstances of each case. State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992). In this case, the “known right” is the statutory right of the district to keep the items in its personnel files exempt from disclosure to the public. There is no evidence that the district intentionally waived its right regarding the report or the files themselves by making them public. At most, the district made public the same information that was in the report and the files.
Whether the district’s conduct constitutes a “waiver” of the district’s statutory authority to exempt personnel files from public inspection depends on the nature of the events about which information was elicited at the unemployment compensation hearing and the source of that information. The events reported in the investigative report and Leedom’s investigation of them are not confidential matters under the applicable statutes and rules, nor does information about them become cloaked with confidentiality because the district has filed a report about them in the personnel files. The information about those events was available to anyone who was privy to them, and the testimony about the events at the *147hearing is public information. Rather, what is made exempt from public disclosure under the statutes and the rules is Leedom’s report about the events. It became an exempt source for public disclosure because the district placed it in the teachers’ personnel files.
Additionally, other sources of information about the events are not cloaked with confidentiality by the statutes and the rules. They do not make the information in the files generally privileged or confidential so that the information cannot be obtained from other sources. Again, ORS 342.850(8) says only that the district shall adopt “rules governing access to personnel files.” Thus, the mere fact that the district chose later to elicit testimony from Leedom without reference to the report at the hearing does not lead to a conclusion that the district manifested an intent to waive the exempt status of the report. Rather, it shows the procurement of nonconfidential information from a source that is not mentioned in the applicable statutes and rules. Because no part of the personnel files of the subject teachers was introduced into evidence or used at the unemployment compensation hearing and the use of information in the hearing came from a source who did not have to depend on the contents of the personnel files, there was no manifestation by the district in an unequivocal manner that it intended to relinquish its statutory right to refuse to permit public access to parts to the files themselves.
The majority’s contrary reasoning results in an interpretation of the reach of ORS 342.850(8) that goes beyond the text and context of the statute and that will, in effect, make information, which was nonconfidential when acquired by third persons, become confidential because of the filing of a report in a personnel file. The majority is correct that there is no blanket principle or case law that compels a finding of waiver under ORS 342.850(8). Instead, it relies on a policy that favors information about public records and governmental activities being open to the public. However, the majority’s policy argument fails to account for the fact that the legislature has created a specific exemption from public disclosure for just these kinds of public records. In other words, there is a countervailing policy of confidentiality for *148teacher personnel records, which suggests that any purported waiver should be scrutinized carefully in the furtherance of maintaining the exempt status of the records from public inspection.
Even if it can be said that the text of the statute is reasonably susceptible to an extension beyond its express terms to make information contained in personnel files confidential for all district purposes, regardless of the source of the information, whether there has been a “waiver” of a statutory right in this case remains a fact-bound inquiry. There is no evidence that the district contemplated the waiver of its statutory right to keep the files exempt. It can only be said to have done so as a result of using Leedom as a witness to testify at the hearing, a waiver that could only occur by operation of law. In fact, Leedom and the district did not rely on the exempt report as a source of its evidence at the unemployment compensation hearing. When that fact is held up against a legal standard that requires an unequivocal manifestation of the relinquishment of a known right, it can hardly be said, in my view, that the standard has been met.
For these reasons, I dissent.
In 1997, the legislature renumbered ORS 192.502, Or Laws 1997, ch 825, § 1, and ORS 342.850, Or Laws 1997, ch 864, § 9. We refer to the renumbered provisions throughout this dissent.