Jordan v. MVD

763 P.2d 420 (1988)

93 Or.App. 651

Lawrence Wm. JORDAN, Appellant, v. MOTOR VEHICLES DIVISION, State of Oregon, Respondent.

86C-12207; CA A43742.

Court of Appeals of Oregon.

Submitted on Record and Briefs May 9, 1988.

Decided November 2, 1988.

Lawrence Wm. Jordan, Salem, filed the briefs pro se.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael C. Livingston, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

In this proceeding under the Public Records Law, ORS 192.410 et seq, plaintiff appeals from the trial court's refusal to compel defendant Motor Vehicles Division (Division) to disclose information to him. The information which plaintiff sought was a woman's home address, contained in Division's vehicle registration records. Long before plaintiff made his request for the address, the registrant had written to Division, asking that her address and telephone number not be revealed to the public. She has also taken other measures to assure her privacy and to keep her address secret. The reason that she felt obliged to do so, she said, is that plaintiff has engaged in a pattern of harassing and pursuing her. Division refused plaintiff's request on the ground that the information is exempt from disclosure under present ORS 192.502(2).[1] The trial court agreed, and we affirm.

ORS 192.502(2) provides:

"The following public records are exempt from disclosure under ORS 192.410 to 192.505: "* * * "(2) Information of a personal nature such as but not limited to that kept in a *421 personal, medical or similar file, 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. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy."

Plaintiff's principal argument is that the information he seeks is not "of a personal nature" and that it cannot be rendered personal simply "because the person furnishing the information believes it to be so or wishes it to be so." In Kotulski v. Mt. Hood Comm. College, 62 Or. App. 452, 660 P.2d 1083 (1983), we rejected the college's contention that former ORS 192.500(2) or (3) exempted the addresses of its part-time instructors from disclosure. We discussed our earlier decisions in Lane County School District v. Parks, 55 Or. App. 416, 637 P.2d 1383 (1981), rev. den. 293 Or. 103, 648 P.2d 850 (1982), Morrison v. School District No. 48, 53 Or. App. 148, 631 P.2d 784, rev. den. 291 Or. 893, 642 P.2d 309 (1981), and Turner v. Reed, 22 Or. App. 177, 538 P.2d 373 (1975), and concluded:

"We cannot say that one's address is information that `normally would not be shared with strangers.' Addresses are commonly listed in telephone directories, printed on checks and provided to merchants. They appear on driver's licenses and other identification that is routinely shown to strangers. "* * * "Defendant argues that the addresses of its part-time faculty are also exempt under ORS 192.500(2)(c) as `information submitted to a public body in confidence.' We held in Morrison v. School District No. 48, supra: "`* * * In order to avail itself of this exemption, defendant must establish that the information was submitted in confidence at the outset.' 53 Or App at 156 [631 P.2d 784]. "Defendant presented testimony that the addresses of faculty members were not disclosed to students or others such as insurance companies or booksellers who requested them. There was also testimony that faculty telephone numbers were given to students upon request but that faculty members could request that telephone numbers not be given and defendant would honor that request. Defendant published a directory of full-time faculty that listed addresses along with other information; however, no such directory of part-time faculty was published. We do not believe that that establishes that the addresses of the part-time faculty were given in confidence. Addresses are normally provided by faculty members in their initial applications and retained in files kept by defendant. Applicants were not informed that the information would be confidential. Defendant has not shown that the information is exempt, and the trial court did not err in ordering disclosure." 62 Or. App. at 456-58, 660 P.2d 1083.

Plaintiff contends, on the basis of those cases and others, that addresses are invariably non-personal. Division responds:

"In neither Kotulski [n]or Parks did the court appear to have before it in the record, evidence showing whether or not any of the part-time faculty or substitute teachers involved treated his or her home address as personal, confidential or private outside of the context of the public records request or that any of them had taken steps before the time of the request to prevent strangers from obtaining that information. The same lack of evidence existed in Morrison with respect to the individuals' identities as substitute teachers. "In that vacuum, in order to determine whether the information sought was exempt under ORS 192.500(2)(b), as construed in Morrison, the court had no recourse but to consider whether in the abstract the information sought would `normally' or `routinely' or `commonly' be shared with strangers, and then to assume that the specific individuals involved followed, what the court believed to be, was the common practice. See Kotulski v. Mt. Hood Comm. College, supra at 67 Or App 456-57 [660 P.2d *422 1083]; Morrison v. School District No. 48, supra at 53 Or App at 155 [631 P.2d 784]. To date, the court has not had occasion to consider and decide the question presented in this case, i.e., whether a private citizen's home address may be exempt from disclosure under ORS 192.500(2)(b), where that individual, outside of the context of and prior to the public records request, reasonably considered and treated her home address as personal, confidential or private and took steps to prevent strangers from obtaining that information." (Emphasis Division's.)

We agree that our previous decisions do not answer the question presented in this case. We conclude that, under facts of the kind before us, a person may request that Division not divulge her address and may thereby bring the address within the "information of a personal nature" proviso of the statute. We also agree with the trial court that plaintiff failed to disprove that disclosure would constitute an unreasonable invasion of privacy and that the public interest was not shown to require disclosure.[2]See Morrison v. School District No. 48, supra, 53 Or. App. at 154, 631 P.2d 784. We reject plaintiff's substantive and procedural arguments to the contrary.

We also reject plaintiff's remaining arguments. None warrants comment, except to note that plaintiff's contention that he was entitled to obtain the address through discovery in this proceeding is preposterous.

AFFIRMED.

NOTES

[1] At the time of the events in question, the substance of that statute was codified as ORS 192.500(2)(b).

[2] Although the purpose for which information is sought does not have any bearing on whether it is subject to disclosure or comes within an exempt category, it may be that the facts surrounding different requests and cases may be relevant to whether the public interest requires disclosure of information that would otherwise be exempt. See Morrison v. School District No. 48, supra.