Colby v. Gunson

WOLLHEIM, J.,

concurring.

When I die, and if there is an autopsy, the last thing I want is for a perfect stranger to review my autopsy report. Here a perfect stranger to decedent, plaintiff, requested a copy of the autopsy report from the medical examiner. That is wrong. Yet, for the reasons that follow, I concur with the result reached by the majority that this case must be reversed and remanded for further proceedings.

This case arises under Oregon’s Public Records Law, ORS 192.410 to 192.505. Plaintiff requested a copy of the medical examiner’s report, including a copy of the autopsy report and laboratory tests performed on the decedent. Plaintiff based his request on ORS 192.420(1), which provides that “every person has a right to inspect any public record of a public body in this state, except as otherwise provided by ORS 192.501 to 192.505.” The medical examiner, the Attorney General, and the trial court all denied plaintiffs *682request for a copy of the documents. Plaintiff appealed, arguing that the Public Records Law mandates disclosure of the autopsy report and laboratory tests performed on the decedent.

Reduced to the basics, this case is not complex. ORS 192.420(1) mandates disclosure of all public records unless the public record is exempt from disclosure. Disclosure is the rule. Guard Publishing Co. v. Lane County School Dist, 310 Or 32, 37, 791 P2d 854 (1990); Kluge v. Oregon State Bar, 172 Or App 452, 455, 19 P3d 938 (2001). The trial court relied on ORS 192.502(9)(a) in refusing to order disclosure. ORS 192.502(9)(a) provides that public records are exempt from disclosure if that disclosure is “prohibited or restricted or otherwise made confidential or privileged under Oregon law.” The trial court ruled that ORS 146.035(5) prohibits disclosure of the autopsy report and laboratory tests to plaintiff. ORS 146.035(5) provides, in part:

“Any parent, spouse, child or personal representative of the deceased, or any person who may be criminally or civilly liable for the death, or their authorized representatives respectively, may examine and obtain copies of any medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner * *

ORS 146.035(1) authorizes disclosure of an autopsy report to the class of persons identified in the statute. ORS 146.035(5) does not prohibit disclosure of an autopsy report. Thus, the trial court’s reliance on ORS 146.035(5) as exempting, prohibiting, restricting, or otherwise making the autopsy report confidential or privileged under ORS 192.502(9) is wrong. To interpret ORS 146.035(5) as prohibiting disclosure is to insert words in that statute that the legislature did not include. ORS 174.010.

It may be that the 1973 legislature did not intend that autopsy reports be disclosed to perfect strangers of the deceased when the legislature adopted both the Public Records Law and revisions to the medical examiner statute. Or Laws 1973, ch 794; Or Laws 1973, ch 408. But Oregon *683laws do not exempt autopsy reports from disclosure to members of the public, including perfect strangers to the decedent. If the legislature does not want autopsy reports disclosed to such strangers, then it is up to the legislature to amend ORS 146.035(5), or some other statute, to prohibit disclosure.

For these reasons, I respectfully concur with the result reached by the majority.

Edmonds, P. J., joins in this concurrence.