When an Oregon health professional licensing board investigates a complaint, what records must stay confidential, when must they be disclosed, and does the board have to vote on a disciplinary notice as a whole board?

Subject

Health care professional regulatory boards subject to SB 235 (1997)

Plain-English summary

In 1997, the Oregon Legislature enacted Senate Bill 235 (Or Laws 1997 ch. 791), which created a uniform framework for how health professional regulatory boards investigate complaints and what records must stay confidential. The two key statutes were ORS 676.165 (investigation procedures) and ORS 676.175 (confidentiality and disclosure). The boards had collectively gathered questions about how the new law applied to their actual workflow.

Who counts as a "licensee." ORS 676.165 and 676.175 covered all persons holding a "license" as defined in ORS 183.310(4) from a health professional regulatory board. That broad definition swept in licensees, certificate holders, and registrants, not just those who held the title "license" in everyday speech.

What stays confidential. ORS 676.175(1) made information obtained as part of an investigation confidential. The AG worked through three sub-scenarios:

• Applications and applicant background. Information submitted by the applicant in the application itself was not confidential under ORS 676.175(1). But once the board did a background or follow-up investigation, the resulting investigation file became confidential.
• Routine inspections. Information obtained from inspecting a licensee, such as a pharmacy or mortuary, counted as investigation information and was confidential.
• Trigger notices. External notices that prompt an investigation, like a DEA notice about high controlled-substance prescribing or an insurer notice under ORS 742.400, were themselves not investigation information and were not confidential. But once the board opened an investigation in response, the resulting investigation material became confidential.

Old confidentiality provisions. The legislature added ORS 676.175 without repealing prior confidentiality provisions in individual board organic acts. The AG concluded the answer to whether those older provisions still applied depended on each board's specific organic-act language. No one-size-fits-all answer.

Board voting requirements. ORS 676.175(2), (3), and (4) referenced "a majority vote of the board" on whether to issue a notice of intent to impose discipline. The AG concluded ORS 676.175 itself did not change underlying quorum rules. The board's organic act still controlled how a decision was made. But ORS 676.175 did make the disclosure consequences turn on whether the disciplinary decision was made by a majority of the whole board.

If the board voted by majority of the whole board not to issue a notice of intent, ORS 676.175(2) required public disclosure if the public interest in disclosure clearly outweighed other interests. If the board issued the notice of intent by majority of the whole board, the notice itself had to be disclosed. If the vote tally fell short, the records stayed confidential under ORS 676.175(1).

Final orders. All final orders that resulted from a notice of intent to impose discipline had to be disclosed, regardless of how the predicate vote went. So did consent orders and stipulated agreements involving licensee or applicant conduct. ORS 183.470's requirement that final orders include findings of fact and conclusions of law satisfied the summary requirement of ORS 676.175(4).

Emergency suspensions. The board could disclose the caption and order portion of an emergency suspension, but had to delete investigation information. If the board later issued a notice of intent on the same basis by majority vote, the full notice with allegations had to be disclosed.

GSPC inquiries. Information requested by the Government Standards and Practices Commission as part of an investigation into the board's compliance with the Public Meetings Law had to be disclosed regardless of vote.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If I file a complaint against my doctor with the Oregon Medical Board, does the public eventually find out?
Under this 1998 framework, the answer depended on what the board did. If the board voted by majority of the whole board to issue a notice of intent to impose discipline, the notice (including allegations) and any resulting final or consent order became public. If the board declined to act by majority of the whole board and the public-interest balance favored disclosure, investigation information could be disclosed. If neither, the file stayed confidential.

Could a licensee see the investigation file on themselves?
ORS 676.175(1) made the information confidential, but the opinion addressed disclosure to a licensee directly: a board may disclose information to a licensee only to the extent necessary to conduct a complete and competent investigation and, once a notice of intent to impose discipline is issued, to the extent needed to satisfy due process.

Did board members have to attend the meeting where the discipline decision was made for it to count as a "majority of the whole board"?
The AG concluded that ORS 676.175 did not change quorum rules. But the consequences turned on whether a majority of the whole board (not just a majority of members present) had voted to issue or decline a notice of intent. The board's underlying voting procedures had to produce that majority for the disclosure provisions to apply.

What if a DEA notice came in about high prescribing? Was that notice itself confidential?
The AG concluded no. External trigger documents like DEA notices and insurer notices under ORS 742.400 were not "information obtained as part of an investigation" and were not confidential. Only the investigation work product the board generated after the trigger was confidential.

What about a pharmacy inspection report that turned up no violations?
The AG concluded inspection information was confidential under ORS 676.175(1), whether or not it led to discipline. Inspection was investigation in this framework.

Did SB 235 erase prior confidentiality protections in individual board organic acts?
The AG could not give a single answer. Where the prior organic-act language was broader, it might still apply (subject to harmonization with SB 235). Where it was narrower, SB 235 set the floor. Each board had to look at its own organic act.

Background and statutory framework

Senate Bill 235, codified at Or Laws 1997 ch. 791, was a broad reform of Oregon's framework for regulating health professionals. The bill created a uniform investigation procedure (ORS 676.165) and a uniform confidentiality regime (ORS 676.175) that applied to all health professional regulatory boards listed in ORS 676.160.

ORS 676.175(1) provided that "information obtained by a board as part of an investigation of an applicant or licensee" was confidential. ORS 676.175(2) created a public-interest balancing test for disclosure when the board voted not to issue a notice of intent. ORS 676.175(3) required disclosure of notices of intent issued by a majority of the whole board and of final orders. ORS 676.175(4) required that final orders, consent orders, and stipulated agreements involving licensee or applicant conduct include a summary of the factual basis.

ORS 183.310(4) defined "license" broadly to include licenses, certificates, permits, registrations, and other formal authorizations.

ORS 183.470 required final orders, other than those incorporating an informal disposition, to be accompanied by findings of fact and conclusions of law. That requirement, when complied with, satisfied the summary requirement of ORS 676.175(4).

The Public Records Law, ORS 192.410 to 192.505, generally favored disclosure of government records, subject to specific exemptions. ORS 676.175(1) was such an exemption.

Citations

• ORS 676.165 (investigation of complaints against health professional licensees)
• ORS 676.175 (confidentiality of board investigations)
• ORS 676.175(2) (public-interest balancing for disclosure when discipline declined)
• ORS 676.175(3) (mandatory disclosure of notices of intent and final orders)
• ORS 676.175(4) (summary requirement)
• Or Laws 1997 ch. 791 (SB 235)
• ORS 183.310(4) (definition of "license")
• ORS 183.470 (findings of fact and conclusions of law in final orders)
• ORS 192.410 to 192.505 (Public Records Law)
• ORS 742.400 (insurer notification of potentially fraudulent insurance claims)

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1998/04/op8257.pdf

Original opinion text

April 29, 1998
No. 8257
This opinion is issued in response to questions from the health professional regulatory boards that are subject to
Oregon Laws 1997, chapter 791 (Senate Bill 235).(1) Among other provisions, this legislation adopted new statutes
concerning the investigation of complaints against licensees and applicants, ORS 676.165,(2) and the confidentiality
of information obtained as part of such investigations, ORS 676.175.(3)
FIRST QUESTION PRESENTED
Are all persons who hold a form of "license" as defined in ORS 183.310(4) from a "health
professional regulatory board" covered by the term "licensee" in ORS 676.165 and 676.175?
ANSWER GIVEN
Yes.
SECOND QUESTION PRESENTED
What information must be kept confidential pursuant to ORS 676.175(1) regarding:
A. An "applicant"?
B. A routine inspection of a licensee, such as a pharmacy or mortuary?
C. Notices that cause the board to initiate an investigation, such as a Drug Enforcement
Administration (DEA) notice that a licensee has a high prescription rate for controlled
substances, or a notice from an insurer pursuant to ORS 742.400?
ANSWER GIVEN
A. Information submitted or required to be submitted by an applicant in or with the application is not confidential
under ORS 676.175(1), but any further information developed by a background investigation or other follow-up
investigation by the board is subject to the confidentiality provisions of that statute.
B. All information obtained by a board from an inspection of a licensee is confidential under ORS 676.175(1).
C. Notices such as those from the DEA, or from insurers pursuant to ORS 742.400 are not confidential under ORS
676.175(1), although information obtained as part of an investigation initiated as a result of the notice would be
confidential under that statute.
THIRD QUESTION PRESENTED
What is the significance of the fact that the legislature enacted confidentiality provisions in ORS
676.165 and 676.175, but did not repeal existing provisions regarding confidentiality and public
disclosure for several of the affected boards?
ANSWER GIVEN
No single answer is possible. The answer depends on the specific language contained in the organic act of each of
the affected boards.
FOURTH QUESTION PRESENTED
ORS 676.175(2), (3) and (4) reference "a majority vote of the board" on decisions whether or not to
issue a "notice of intent to impose a disciplinary sanction".
A. Does this mean that ORS 676.175 requires action by a vote of the board to issue a
notice of proposed disciplinary action on a licensee, to take no action at the conclusion
of an investigation of alleged licensee misconduct, to issue a notice of intent to deny an

application for licensure or to grant a license? If so, does ORS 676.175 also replace
quorum requirements in the boards' organic acts and require board action by an
affirmative vote of a majority of the board rather than a majority of the quorum?
B. If these decisions can be made by less than a majority vote of the whole board, what
information and records must be held confidential and what records must be disclosed
under ORS 676.175(2) and 676.175(3)?
C. If these decisions can be made by less than a majority vote of the whole board, under
what circumstances must the final order, consent order or stipulated agreement in
cases involving licensee or applicant conduct summarize the factual basis for the
board's disposition of the matter under ORS 676.175(4)?
ANSWER GIVEN
A. ORS 676.175 does not itself require that decisions whether or not "to issue a notice of intent to impose a
disciplinary sanction" be made by vote of the board. Nor does ORS 676.175 change the quorum requirements of the
boards.
B. ORS 676.175(2) requires disclosure of information obtained as part of an investigation of an applicant or licensee
if two conditions are met: (1) a majority of the board voted not to issue a notice of intent to impose discipline, and
(2) the public interest in disclosure outweighs other interests in nondisclosure by clear and convincing evidence.
Thus, if the board votes by a majority of the whole board not to issue a notice of intent to impose discipline, then
the first contingency for disclosure is met, and the board should proceed to the public interest balancing test to
determine whether disclosure is required. Absent a majority vote of the whole board, the investigatory information
remains confidential under ORS 676.175(1) and may not be disclosed.
ORS 676.175(3) requires the board to disclose a notice of intent to impose a disciplinary sanction against a licensee
or to deny an application only if that notice has been issued by a majority vote of the whole board. Absent a
majority vote of the whole board, the notice remains confidential under ORS 676.175(1) and may not be disclosed.
ORS 676.175(3) also requires the board to disclose all final orders that result from a notice of intent to impose a
disciplinary sanction against a licensee, regardless of whether the notice of intent to impose a disciplinary sanction
was issued by a majority vote of the whole board. ORS 676.175(3) also requires the board to disclose all consent
orders and stipulated agreements involving licensee or applicant conduct, regardless of whether a notice of
proposed action was issued or whether such a notice was issued by a majority vote of the whole board. Information
requested by the Government Standards and Practices Commission as part of an investigation of board compliance
with the executive session provisions of the Public Meetings Law must be disclosed irrespective of board votes.
The board may disclose the caption and order portion of emergency suspension orders so long as the board deletes
any remaining information obtained as part of an investigation or complaint. If a majority of the board votes to
issue a notice of intent to impose a disciplinary sanction on the same basis as the emergency suspension order, the
notice of intent must be disclosed under ORS 676.175(3), including all supporting allegations, although that same
information in the emergency suspension order would remain confidential.
C. ORS 183.470 requires a final order other than one incorporating an informal disposition to be accompanied by
findings of fact and conclusions of law. Compliance with this statute would satisfy the requirement for a summary
contained in ORS 676.175(4). Final orders incorporating an informal disposition must contain a summary of the
factual basis for the board's disposition only if that final order results from a notice of intent to impose discipline
that was issued by a majority vote of the whole board. All consent orders and stipulated agreements that involve
licensee or applicant conduct must contain a summary, whether or not they result from a notice of intent that was
issued by a majority vote of the whole board.
FIFTH QUESTION PRESENTED
Do the confidentiality provisions of ORS 676.165(5) and 676.175 apply to information received or
records created before October 4, 1997, the effective date of that statute, or only to information
received or records created after October 4?
ANSWER GIVEN

The confidentiality and disclosure provisions in ORS 676.165(5) and 676.175 apply to all information and records
of the boards, whether received or created before or after October 4. To the extent that ORS 676.175(2) and (3)
mandate disclosure of certain information if a notice of intent to impose a disciplinary sanction was issued by a
majority vote of the whole board, that condition must have been met before disclosure is permitted.
SIXTH QUESTION PRESENTED
What does the phrase "and information to further an investigation into board conduct under ORS
192.685" mean in ORS 676.175(3)?
ANSWER GIVEN
ORS 192.685 relates to the role of the Government Standards and Practices Commission (GSPC) in investigating
allegations of the improper use of executive session by boards under the Public Meetings Law, ORS 192.610 to
192.710. ORS 676.175(3) requires the boards to disclose information to the GSPC to further an investigation
conducted pursuant to ORS 192.685, including information that would otherwise not be disclosed by virtue of ORS
676.175(1).
SEVENTH QUESTION PRESENTED
Do ORS 676.165 and 676.175 prohibit the boards from disclosing information obtained as part of an
investigation of a licensee or applicant:
A. To sister agencies within or without the state, to law enforcement agencies (including
the district attorney and the Attorney General's office) or to the federal DEA?
B. To witnesses in the course of investigation?
C. To a licensee in the course of a contested case proceeding?
ANSWER GIVEN
A. The boards may not disclose investigatory information or the report of an investigator to sister agencies, law
enforcement agencies or to the federal DEA unless a board's statutes expressly so authorizes.
B. The boards may disclose information to witnesses only to the extent necessary to conduct a complete and
competent investigation.
C. The boards may disclose information to a licensee only to the extent necessary to conduct a complete and
competent investigation and, if a notice of intent to impose discipline is issued, to satisfy due process requirements.
EIGHTH QUESTION PRESENTED
ORS 676.165 concerns investigations of complaints and the reports of investigators.
A. What is a "complaint by any person" for purposes of the timelines and other
requirements of ORS 676.165?
1) Must the board accept and investigate oral complaints?
2) Do the requirements of ORS 676.165 apply to investigations of
applicants when there is no "complaint"?
3) Would the requirements of ORS 676.165 apply to investigations
opened as a result of notice received by the board of potential problems
with a licensee, such as a DEA notice that a licensee has a high
prescription rate for controlled substances, a notice from an insurer
pursuant to ORS 742.400, a news article that causes the board to initiate
an investigation of a licensee, or a board's routine inspection of a
pharmacy or mortuary that generates an investigation?

B. Do the requirements of ORS 676.165 apply to complaints received before October 4,
1997?
C. If a board's practice is to review complaints at a board meeting to determine if they
allege matters that could result in a disciplinary sanction of a licensee, does the 120-day
period specified in ORS 676.165(4) for the investigator to make a report start when the
complaint is received by board staff or when the members of the board review the
complaint and assign it to the investigator at its meeting?
D. Does ORS 676.165 require the investigation to be completed within 120 days from
the time that period starts or merely require the investigator to file a status report
within the 120 days?
E. What qualifies as "just cause" to extend the time period in which to file a report?
How should the existence of "just cause" be documented?
F. Does the whole board have to vote in each instance to grant a 30-day extension, or
can this decision be delegated to a subcommittee of the board or to the board's
executive director?
G. What are the consequences of not filing a report within the required time (the initial
120-day period or the 30-day extension period)?
ANSWER GIVEN
A. For purposes of ORS 676.165, a complaint by any person is an expression of resentment, protest or formal
allegation about a licensee or applicant that is made by any individual, partnership, corporation, association,
governmental subdivision or public or private organization of any character other than a state agency.
1) The board must accept and investigate oral complaints.
2) The requirements of ORS 676.165 do not apply to investigations of applicants when there is no
"complaint."
3) "Notices," such as those from the DEA, an insurer pursuant to ORS 742.400, a news article, or a
board's routine inspection, that cause a board to investigate a licensee are not "complaints," but
rather inquiries, reports or alerts. ORS 676.165 would be inapplicable.
B. The requirements of ORS 676.165 do not apply to complaints received before October 4, 1997.
C. The 120-day period starts from the receipt of a complaint in the board's office.
D. Although the investigator need not necessarily complete the investigation within 120 days (due to the extension
clause in ORS 676.165(4)), the investigator's report due within 120 days or the extended period must be more than
a mere status report.
E. See discussion.
F. The board may delegate the decision to grant a 30-day extension for just cause to a subcommittee of the board or
to a person or persons within the agency.
G. The legislature provided no consequences if the investigation report is not made in a timely manner, and we
cannot read one into the statute.
NINTH QUESTION PRESENTED
Must the "investigator" be a member of the health professional regulatory board, or can it be a staff
person or contract investigator? May a person who is not the "assigned" investigator conduct any
part of the investigation and make the report to the board?
ANSWER GIVEN

ORS 676.165 does not identify or limit who can be assigned as an investigator of the complaint, although ORS
676.165 does provide for the possibility that more than one investigator could be assigned to the same complaint.
Only the assigned investigator may make the report to the board.
TENTH QUESTION PRESENTED
Does ORS 676.165(5), which exempts from public disclosure investigatory information obtained by
the investigator, conflict with the disclosure requirement in ORS 676.175(2) and (3)? If so, which
prevails?
ANSWER GIVEN
ORS 676.165(5) was intended to exempt from public disclosure the investigator's report and other records
containing investigatory information obtained by the investigator. Such an "exemption" from disclosure does not
vitiate the mandate that the board "shall disclose" the information specified in ORS 676.175(2) and (3).
ELEVENTH QUESTION PRESENTED
When a hearing on a notice of intent to impose a disciplinary sanction on a licensee or a notice to
deny an application for licensure is held before a hearings officer, do the confidentiality provisions of
ORS 676.165 and 676.175 require the public (and the news media) to be excluded?
ANSWER GIVEN
When a hearing on a notice of intent to impose a disciplinary sanction on a licensee or a notice to deny an
application for licensure is held before a hearings officer, the public and the news media must be excluded.
TWELFTH QUESTION PRESENTED
When a hearing on a notice of intent to impose a disciplinary sanction on a licensee or a notice to
deny an application for licensure is held before a quorum of the board, do the confidentiality
provisions of ORS 676.165 and 676.175 require the hearing to be conducted in executive session? If
so, does a representative of the news media have the right to attend the hearing conducted in
executive session?
ANSWER GIVEN
When such hearing is held before a quorum of the board, the hearing must be conducted in executive session.
Representatives of the news media must be permitted to attend a hearing conducted in executive session.
THIRTEENTH QUESTION PRESENTED
When the board deliberates in a contested case proceeding, may a member of the public or a
representative of the media be present?
ANSWER GIVEN
Neither a member of the public nor a representative of the media may be present when the board deliberates in a
contested case proceeding.
FOURTEENTH QUESTION PRESENTED
ORS 192.660, the executive session provisions in the Oregon Public Meetings Law, was amended by
SB 235. In light of those amendments and the enactment of ORS 676.165 and 676.175:
A. Does ORS 192.660 now permit the board to take a final vote in executive session?
B. If the board is required to take a final vote in open session, how do the
confidentiality provisions of ORS 676.165 and 676.175 require that this be done?

C. How do ORS 676.175 affect the content and disclosure of board meeting minutes for
executive sessions and open sessions?
ANSWER GIVEN
A. ORS 192.660(1)(k) does not permit the board to take a final vote in executive session.
B. See discussion.
C. ORS 192.660(1)(k) requires the board to keep confidential and not disclose any part of its executive session
meeting minutes that contain confidential information under the terms of ORS 676.175.
DISCUSSION
In interpreting statutes, our goal is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor
and Industries (PGE), 317 Or 606, 610, 859 P2d 1143 (1993). We first look at the text and context of the statute,
which includes other provisions of the same statute and related statutes. In so doing, we consider statutory and
judicially developed rules of construction that bear directly on how to read the text, such as "words of common
usage typically should be given their plain, natural, and ordinary meaning." Id. at 611. If the legislative intent is
clear from the text and context, the search ends there. Only if the legislative intent is not clear from the text and
context of the statute will we look to the legislative history to attempt to discern that intent. Id. at 611-612. If, after
considering text, context and legislative history, the intent of the legislature remains unclear, we may resort to
general maxims of statutory construction to resolve any remaining uncertainty as to the meaning of the statute. Id.
at 612.
With these principles in mind, we turn to the questions we have been asked concerning the interpretation of ORS
676.165 and 676.175.

1. Meaning of "Licensee"
   ORS 676.175(1) requires the boards to keep confidential and not disclose to the public any information obtained by
   the board as part of an investigation "of a licensee or applicant." We are asked whether all persons or entities
   holding a form of "license" as defined in ORS 183.310(4) from a "health professional regulatory board" are
   covered by the term "licensee."
   ORS 676.175 does not define the term licensee. In the organic acts of the boards to which ORS 676.175 applies, the
   names used to identify the form of permission required to pursue an occupation or profession varies widely. Two
   examples illustrate the point.
   The first example involves the practice of nursing. ORS 678.021 provides that one must be "licensed" by the
   Oregon Board of Nursing to practice registered nursing. ORS 678.375 provides that a licensed registered nurse may
   only practice as a nurse practitioner if the person has received a "certificate of special competency" from the Board
   of Nursing. ORS 678.010(4) defines nurse practitioner as "a registered nurse who has been certified by the board as
   qualified to practice in an expanded specialty role within the practice of nursing."
   The second example involves the practice of pharmacy. ORS 689.225 provides that one must be "licensed" by the
   Board of Pharmacy to practice pharmacy. ORS 689.335 provides that no drug outlet (pharmacy) shall be operated
   until a "certificate of registration" has been issued by the Board of Pharmacy.
   In both illustrations, terms other than "license" are used as labels for a form of permission required by law to
   pursue the profession of nurse practitioner and the commercial activity of a drug outlet. Regardless of appellation,
   each is a license within the meaning of ORS 183.310(4). That statute provides:
   "License" includes the whole or part of any agency permit, certificate, approval, registration or
   similar form of permission required by law to pursue any commercial activity, trade, occupation or
   profession.
   ORS 676.175 was intended to create uniform standards of confidentiality and public disclosure regarding
   investigations of licensees of the boards and investigations of applicants for licensure. There is nothing in the
   language of this statute or in its history to suggest that by using the term "licensee" the legislature intended to

distinguish between cases involving the permission to pursue a profession or occupation depending upon the label
used in the organic act of the particular board. Rather, we conclude that ORS 676.175 applies to all cases in which a
person or entity seeks or holds a license (as that term is defined by ORS 183.310(4)) from the board and that the
term "licensee" applies generically to any person or entity that holds any form of permission from a "health
professional regulatory board" regardless of the name used in the organic act of the board.

2. Confidentiality of Certain Information
   We are next asked what information must be kept confidential pursuant to ORS 676.175(1) regarding: (a) an
   "applicant," (b) routine inspections, and (c) notices received by a board that cause the board to open an
   investigation.
   A. Applicants
   ORS 676.175(1) provides that "[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[n] * * * applicant, including
   complaints concerning * * * applicant conduct and information permitting the identification of complainants * * *
   or applicants."
   In providing for professional licensure, the legislature has included in the organic act of each board qualifications
   for licensure including standards relating to education, examination and fitness. Typically, an applicant for
   licensure makes application on a form provided by the board, and the applicant includes information to
   demonstrate that the applicant meets all of the qualifications for licensure. Upon receipt of an application, some
   boards review the application and authorize the applicant to sit for the examination if the application is complete
   on its face and the applicant appears qualified. At such time as the applicant passes the examination, a license is
   issued.
   We conclude that the submission of an application by an applicant does not qualify as an "investigation" within the
   meaning of ORS 676.175(1). We further conclude that the mere review of the application by the board to determine
   whether the applicant is qualified does not fall within the meaning of the term "investigation." The reason for these
   conclusions is two-fold. First, the plain meaning of the word "investigation" indicates greater activity than that of
   submitting or reviewing an application. See Websters Third International Dictionary (Websters) 1189 (unabridged
   1993) ("detailed examination * * * a searching inquiry * * * an official probe"). Second, a contrary interpretation
   could lead to the result of a board being unable to disclose the names and other identifying information of
   applicants to whom it grants licenses pursuant to a review of their applications. Such an interpretation would not
   logically embody the intent of the legislature. Thus, we conclude that the information submitted by an applicant as
   part of the application process is not subject to the confidentiality provisions of the Act.(4)
   ORS 676.165(1) requires a board to investigate "[u]pon receipt of a complaint * * * against a licensee or applicant."
   Boards may also conduct investigations in the absence of a complaint. For example, some boards, such as the
   Mortuary and Cemetery Board, conduct routine background investigations of all applicants. ORS 676.175 requires
   the boards to keep confidential information obtained "as part of an investigation of a licensee or applicant,"
   without regard to whether the investigation was initiated upon receipt of a complaint or otherwise. We conclude
   that information developed by a board when conducting a background investigation of an applicant qualifies as
   "information obtained by the board as part of an investigation" and is subject to the confidentiality provisions of
   ORS 676.175.
   In some instances, either as a result of disclosures made by the applicant or as a result of information coming to the
   board from other sources, the board may conduct an investigation of the applicant. This frequently happens when
   an applicant discloses a criminal history, discloses disciplinary action by a board in another jurisdiction or discloses
   some other facts that bear on the applicant's fitness. As noted above, the information disclosed by the applicant on
   the application or required to be submitted with the application is not confidential under ORS 676.175(1), but any
   further information developed by the board's investigation is subject to the confidentiality provisions of that
   statute.
   B. Routine Inspections
   ORS 676.175(1) prohibits a board from disclosing "any information obtained by the board as part of an
   investigation of a licensee." Some boards, such as the Board of Pharmacy or the Mortuary and Cemetery board,

conduct routine inspections of the premises of licensees. Because the purpose of such an inspection is to investigate
whether the licensee is in compliance with the applicable statutes and rules, any information obtained by a board
from an inspection is confidential under ORS 676.175(1).
C. Notices that Result in an Investigation
A board may receive a notice or other information that causes the board to initiate an investigation. For example,
the Drug Enforcement Administration (DEA) notifies the Board of Medical Examiners when a physician has a high
prescription rate for controlled substances. Insurers are required by ORS 742.400 to report to the appropriate
licensing board any claim for alleged professional negligence against a physician, podiatric physician, optometrist,
dentist or dental hygienist, or naturopath that the insurer received against one of its insureds.
Although such notices are generated sua sponte by the DEA or insurer and are not obtained "as part of an
investigation," ORS 676.175(1) also prohibits disclosure of "complaints." Consequently, we must consider whether
such notices are complaints.
Websters defines "complaint," as, among other things:
1 c : the act or action of expressing protest, censure or resentment : expression of injustice
d : formal allegation or charge against a party
Id. at 464. Thus, a complaint is an expression of resentment, protest or formal allegation about a licensee or
applicant. The notices described above are neutral factual notices about a licensee's prescription rate for controlled
substances or a malpractice claim filed against a licensee; they are not complaints to the board expressing some
protest, resentment, sense of injustice or formal allegation against a licensee or applicant.
Because such notices are not "complaints" and were not obtained "as part of an investigation," the notices
themselves are not confidential under ORS 676.175, even if the board begins an investigation of the licensee as a
result of such a notice.

3. Effect of Other Confidentiality Statutes That Have Not Been Repealed
   We are next asked about the significance of the fact that when the confidentiality provisions of ORS 676.165 and
   676.175 were enacted, the legislature did not repeal existing provisions regarding confidentiality and public
   disclosure for several of the affected boards. No single answer can be given to this question because the answer
   depends on the specific language contained in the organic act of each of the affected boards. Consequently, each
   board must review its organic act and consult with its assigned assistant attorney general to address this issue. By
   way of example, we note the organic statutes of the Oregon Board of Dentistry.
   ORS 679.320(1) states that any information provided to the Board of Dentistry as the basis of a complaint or in the
   investigation of a complaint "shall not be subject to public disclosure during the period of investigation." This
   statute was not amended or repealed when ORS 676.165 and 676.175 were enacted. There is no conflict between
   ORS 679.320(1) and ORS 676.165 or 676.175. ORS 679.320(1) prohibits public disclosure of information submitted
   to the Board of Dentistry as a result of a complaint until the investigation is complete. ORS 676.165(5) makes
   "[i]nvestigatory information obtained by an investigator * * * exempt from disclosure"; and ORS 676.175(1)
   prohibits disclosure of "any information obtained by the board as part of an investigation * * * including
   complaints." The extent of the confidentiality for complaints and information obtained as part of an investigation
   that is provided by ORS 676.165 and 676.175 is both consistent with and substantially greater than the
   confidentiality provided by ORS 679.320(1).
   ORS 679.250(5) provides that the Board of Dentistry's "proceedings shall be open to public inspection in all matters
   affecting public interest." (Emphasis added.) This statute was not amended or repealed. We conclude that there is
   no conflict between this statute and ORS 676.165 or 676.175 . In enacting ORS 676.165 and 676.175 , the legislature
   has defined the parameters of "matters affecting public interest" by striking a new balance between confidentiality
   and public disclosure for information obtained by the Board of Dentistry as part of an investigation of a licensee or
   applicant. Information the disclosure of which is prohibited by ORS 676.165 or 676.175 is not a matter affecting the
   public interest.
4. Majority Votes

The fourth question concerns quorum and voting requirements in light of the references in ORS 676.175(2), (3) and
(4) to "a majority vote of the board" on decisions whether or not to issue a "notice of intent to impose a disciplinary
sanction," and the effects of decisions made by less than a majority vote. ORS 676.175(2) and (3) require disclosure
of investigatory and other information under specified conditions. ORS 676.175(4) requires certain disclosable
orders and agreements to summarize the factual basis for the board's disposition.
Interpreting the confidentiality requirements of ORS 676.175 with respect to applications for licensure is
complicated by the legislature's choice of terminology. The term "disciplinary sanction" repeatedly appears in ORS
676.175 with respect to both licensees and applicants. Generally, boards do not consider the denial of an application
for licensure to constitute a disciplinary sanction against an applicant. No other negative action, however, is taken
by a professional licensing board against an applicant in the normal course of events that could give meaning to the
phrase "a notice of intent to impose a disciplinary sanction against a[n] * * * applicant" that appears in ORS
676.175(3). Conversely, when a board determines that an applicant qualifies for licensure, the application is
approved and a license is issued. This would not normally be viewed as a board determining that "no notice of
intent to impose a disciplinary sanction shall be issued" as referenced in ORS 675.175(2) with respect to applicants.
Nevertheless, to give meaning to the legislature's inclusion of "applicants" as well as "licensees" in ORS 676.175,
the approving and disapproving of applications for licensure must be viewed in this light. Therefore, we conclude
that the legislature intended the reference to a "disciplinary sanction" in ORS 676.175 to apply to a decision:
(i) to issue a notice of proposed disciplinary action regarding a licensee;
(ii) not to issue a notice of intent to impose disciplinary action following an investigation of a licensee;
(iii) to issue a notice of intent to deny an application for licensure; and
(iv) to approve an application and grant a license.
We answer question four within the analytical framework provided by these conclusions.
A. Voting and Quorum Requirements
We are asked first whether ORS 676.175 requires action by a vote of the board to issue a notice of proposed
disciplinary action on a licensee, to take no action at the conclusion of an investigation of alleged licensee
misconduct, to issue a notice of intent to deny an application for licensure or to grant a license. If these decisions
must be made by vote of the board, we are then asked whether these provisions also replace quorum requirements
in the boards' organic acts and require board action by an affirmative vote of a majority of the whole board rather
than a majority of the quorum.
ORS 676.175(2) mandates disclosure of information obtained as part of an investigation of an applicant or licensee
if two conditions are met, one of which is "if a health professional regulatory board determines by a majority vote
of the board that no notice of intent to impose a disciplinary sanction be issued." ORS 676.175(3) requires the
board to disclose a notice of intent to impose a disciplinary sanction against a licensee or applicant "that has been
issued by a majority vote of the board." ORS 676.175(4) provides that "[i]f a notice of intent to impose a
disciplinary sanction has been issued by a majority vote of the board," a final order resulting from the board's
notice of intent must summarize the factual basis for the board's disposition. The plain meaning of the language of
ORS 676.175(2), (3) and (4) does not require that any of the contemplated actions be passed by a majority vote of
the board. The confidentiality of information concerning these activities, however, will be affected by whether the
actions are taken by a majority vote of the whole board.
We are informed that some boards affected by ORS 676.175 vote on each disciplinary case at the conclusion of the
investigation either to issue a notice of intent to impose a disciplinary sanction or to close the matter. In cases
decided by boards that do not have a quorum requirement in their organic act, the board's action must be made by
a majority vote of the whole board. ORS 174.130. However, in cases decided by boards that have a quorum
provision in their organic act, when the board votes to close a matter, e.g., to not issue a notice of intent to impose a
disciplinary sanction, the decision may be made by a vote of less than a majority of the whole board. For example,
the Board of Dentistry consists of nine members. ORS 679.230. A majority vote of the whole Board of Dentistry is
five. However, ORS 679.250(5) provides that a majority of the Board of Dentistry constitutes a quorum and a
majority vote of the quorum "shall be a decision of the board." Thus, if only five members of the Board of
Dentistry attend a board meeting, the board may take action on the affirmative vote of three members which, of

course, is two votes less than a majority vote of the board.
Based on the plain meaning of ORS 676.175, and the fact that the legislature did not repeal or modify any of the
quorum requirements contained in the organic acts of the affected boards, we conclude that the legislature did not
intend to change the law relating to quorum requirements. Consequently, the actions contemplated by ORS
676.175, such as issuing a notice of intent to impose a disciplinary sanction, may be taken on less than a majority
vote of the whole board if a particular board's organic act so provides. Whether certain actions addressed in ORS
676.175(2), (3) or (4) must be disclosed to the public, however, will remain dependent on whether the decision was
made by a majority vote of the whole board. This is the case because these statutory provisions plainly and
specifically tie the disclosure of certain information to "a majority vote of the board." Under ORS 174.010, it is
impermissible, when analyzing a statute, "to insert what has been omitted, or to omit what has been inserted."
Because the legislature could have adopted other language recognizing a board's ability to take action by a quorum
vote and chose not to do so, we must give meaning to the specific words that appear in ORS 676.175.(5)
B. Confidentiality and Mandatory Disclosure under ORS 676.175(2) and (3)
Given our conclusion that these decisions can be made by less than a majority vote of the whole board, we are asked
what information and records must be held confidential and what records must be disclosed under ORS 676.175(2)
and (3).
1) ORS 676.175(2) - Disclosure of Investigatory Information
ORS 676.175(2) provides that notwithstanding the confidentiality requirements of ORS 676.175(1),
if a health professional regulatory board determines by a majority vote of the board that no notice of
intent to impose a disciplinary sanction shall be issued, the board shall disclose information obtained
as part of an investigation of an applicant or licensee if the person requesting the information
demonstrates by clear and convincing evidence that the public interest in disclosure outweighs other
interests in nondisclosure, including but not limited to the public interest in nondisclosure.
(Emphasis added.) Thus, information obtained as part of an investigation of an applicant or licensee may be
disclosed under ORS 676.175(2) only if two conditions are met: (1) if a majority of the board voted not to issue a
notice of intent to impose discipline, and (2) if the public interest in disclosure outweighs by clear and convincing
evidence other interests, including the public interest, in nondisclosure.
In the absence of a motion and vote by the board to issue a notice of intent to impose a disciplinary sanction against
a licensee, no disciplinary action will be initiated (unless that authority has been subdelegated to staff).(6)
Consequently, there may be cases in which an investigation has been conducted and no disciplinary action was
initiated against a licensee despite the fact that there was no board vote on the matter. In such cases, the
information that is made confidential by ORS 676.175(1) is not subject to public disclosure under ORS 676.175(2),
because the condition precedent of a majority vote of the board has not been met. Similarly, if the motion to not
issue a notice of intent to impose a disciplinary sanction is passed by a majority of the quorum, but by less than a
majority of the whole board, the contingency for disclosure under ORS 676.175(2) is not met and the confidential
investigatory information under ORS 676.175(1) is not subject to disclosure under ORS 676.175(2).
In cases involving the decision to grant a license, if the motion to approve a license application is passed by a
majority of the quorum, but by less than a majority of the whole board, the first contingency for disclosure under
ORS 676.175(2) is not met and the confidential investigatory information under ORS 676.175(1) is not subject to
disclosure under ORS 676.175(2).
If a majority of the whole board votes to grant a license or not to issue a notice of intent to impose a disciplinary
sanction, however, then the first contingency for disclosure of investigatory information under ORS 676.175(2) is
met, and the board should proceed to the balancing test set forth in that section to determine whether disclosure is
required.
We have not been informed whether any of the affected boards have subdelegated to staff the decision to approve a
license application and issue a license, and we decline in this opinion to address the lawfulness of such a practice.
We note merely that the disclosure provision in ORS 676.175(2) in cases where license applications have been
approved is contingent on a majority vote of the board. In the absence of a board vote, the investigatory

information that is confidential pursuant to ORS 676.175(1) is not subject to public disclosure under ORS
676.175(2).
2) ORS 676.175(3) - Disclosure of Notices, Orders, etc.
a) Notice of Proposed Disciplinary Sanction Against
Licensee
ORS 676.175(3) provides that a "board shall disclose a notice of intent to impose a disciplinary sanction against a
licensee * * * that has been issued by a majority vote of the board."
Based on the above analysis, we conclude that the board must disclose a notice of intent to impose a disciplinary
sanction against a licensee that has been issued by a majority vote of the whole board. We further conclude that a
notice of intent to impose a disciplinary sanction against a licensee that has been issued by a vote of less than a
majority of the whole board or that has been issued by board staff is not required to be disclosed by ORS
676.175(3) and must instead be held confidential pursuant to ORS 676.175(1).
b) Notice of Intent to Deny an Application
ORS 676.175(3) provides that a "board shall disclose a notice of intent to impose a disciplinary sanction against
[an] applicant * * * that has been issued by a majority vote of the board." Based on the above analysis, we conclude
that the board must disclose a notice of intent to deny an application that has been issued by a majority vote of the
whole board. We further conclude that a notice of intent to deny an application that has been issued by a vote of
less than a majority of the whole board or that has been issued by board staff is not required to be disclosed by
ORS 676.175(3) and must instead be held confidential pursuant to ORS 676.175(1).
c) Final Order Resulting from Notice of Intent to Impose
Disciplinary Sanction
ORS 676.175(3) provides that a "health professional regulatory board shall disclose * * * a final order that results
from the board's notice of intent to impose a disciplinary sanction." Unlike the notice of intent to impose a
disciplinary sanction, discussed above, which must have been issued by a majority vote of the board to trigger the
requirement to disclose, a final order must merely result "from the board's notice of intent to impose a disciplinary
sanction" to trigger this requirement. The issuance of notice is an action by "the board" listed in ORS 676.160,
whether that action is taken by a majority of the whole board or a majority of the quorum or is delegated to staff.
The plain language of ORS 676.175(3) does not require that the notice from which the final order results must be a
notice issued by a majority vote of the board.
We conclude therefore that all final orders that result from a notice of intent to impose a disciplinary sanction
against a licensee must be disclosed regardless of whether the notice of intent to impose a disciplinary sanction was
issued by a majority vote of whole board, a majority vote of a quorum or by board staff. We reach the same
conclusion with respect to all final orders that result from a notice of intent to deny an application.
d) Consent Order or Stipulated Agreement
ORS 676.175(3) provides that a "health professional regulatory board shall disclose * * * a consent order or
stipulated agreement that involves licensee or applicant conduct." ORS 183.415(5) provides for informal disposition
of contested cases by stipulation, agreed settlement or consent order. Although consent orders or stipulated
agreements often follow the initiation of a contested case proceeding, contested cases may be resolved without the
board having first issued a notice of proposed action. This fact, coupled with the plain meaning of the language
used in ORS 676.175(3), leads us to conclude that consent orders and stipulated agreements involving licensee or
applicant conduct must be disclosed regardless of how a notice of proposed action was issued or whether such a
notice was issued at all.
e) Information to Further an Investigation under ORS
192.685
ORS 676.175(3) provides that a "health professional regulatory board shall disclose * * * information to further an
investigation into board conduct under ORS 192.685." This disclosure requirement to the Government Standards
and Practices Commission (GSPC) in response to a request for relevant information as part of an investigation of

board compliance with the executive session provisions of the Public Meetings Law is not contingent on board votes
or quorum requirements.
f) Emergency Suspension Orders
ORS 676.175 does not expressly address the disclosure of emergency suspension orders. Such orders may be issued
pursuant to ORS 183.430(2), which provides in relevant part:
In any case where the agency finds a serious danger to the public health or safety and sets forth
specific reasons for such findings, the agency may suspend or refuse to renew a license without
hearing, but if the licensee demands a hearing within 90 days after the date of notice to the licensee of
such suspension or refusal to renew, then a hearing must be granted to the licensee as soon as
practicable after such demand, and the agency shall issue an order pursuant to such hearing as
required by ORS 183.310 to 183.550 confirming, altering or revoking its earlier order. * * *
An emergency suspension order is not a notice of intent to impose a disciplinary sanction; it is a licensing action.
Nor is an emergency suspension order a final order that results from a notice of intent to impose a disciplinary
sanction.(7) Thus, disclosure of emergency suspension orders are not mandated by ORS 676.175(3).
676.175(1) prohibits disclosure of "information obtained by the board as part of an investigation * * * including
complaints * * * and information permitting the identification of * * * licensees." This provision would prohibit
disclosure of investigatory information about an identified licensee, including, presumably, the findings and reasons
set forth in the emergency suspension order. Nevertheless, ORS 676.175(1) does not, by its terms, make information
about the status of an individual's license confidential. Thus, the board would not appear to be prohibited from
disclosing the fact that an individual's license has been suspended. This raises the question whether the board may
disclose the caption and order portions of an emergency suspension order so long as the board deletes from that
order any remaining information obtained as part of an investigation. See Southwood Homeowners v. City Council
of Philomath, 106 Or App 21, 24, 806 P2d 162 (1991) (context of statutory scheme can reveal ambiguity when
statutory provision, standing alone, appears to have clear meaning).
Neither the text and context of ORS 676.175 nor its legislative history answer this question. Therefore, we resort to
the general maxims of statutory construction. See PGE, at 612. As between two plausible interpretations, a court
will "refuse to adopt [that which] would lead to an absurd result that is inconsistent with the apparent policy of the
legislation as a whole." See State v. Vasquez-Rubio, 323 Or 275, 283, 917 P2d 494 (1996). ORS 676.175 is apparently
intended to protect the reputation of licensees by prohibiting disclosure of investigatory information that a majority
of the board concluded was not sufficient to warrant issuance of a notice of intent to impose a disciplinary sanction
nor included in a final order as a summary of the factual basis for the board's disposition. Nevertheless, even when
a majority of the board votes not to issue a notice of intent to impose a disciplinary sanction, ORS 676.175(2)
requires disclosure of the investigatory information if the public interest in disclosure outweighs other interests in
nondisclosure by clear and convincing evidence.
When a board issues an emergency suspension order after making the requisite findings that a licensee poses a
serious danger to the public health or safety, we believe that the public interest in disclosure of the fact that the
licensee has been suspended outweighs by clear and convincing evidence any interests in nondisclosure. It would be
"absurd" if the board were prohibited from disclosing to the licensee's employer or health care facilities in which
the licensee practices, or to the patients of a licensee, the fact that his or her license to practice has been suspended.
Accordingly, we conclude that ORS 676.175 does not prohibit a board from disclosing the fact that a licensee is
subject to an emergency suspension order. The board may disclose the caption and order portions of an emergency
suspension order so long as the board redacts the underlying information obtained as part of an investigation or
contained in a complaint.
The investigatory information underlying the emergency suspension order is disclosable if a notice of intent to
impose a disciplinary sanction that has been issued by a majority vote of the whole board recites such information.
In such a case, the notice of intent would be disclosed under ORS 676.175(3), including all supporting allegations.
See ORS 183.414(3)(d) (notice of proposed action must include statement of matters asserted or charged). Even if
identical to the allegations in the notice of intent, that portion of the emergency suspension order containing the
findings would remain confidential unless the emergency suspension order was incorporated by reference into the
notice of intent.

C. Summary of Factual Basis for Board's Disposition
Finally, we are asked under what circumstances the final order, consent order or stipulated agreement in cases
involving licensee or applicant conduct must summarize the factual basis for the board's disposition of the matter
under ORS 676.175(4).
ORS 676.175(4) provides that "[i]f a notice of intent to impose a disciplinary sanction has been issued by a majority
vote of a health professional regulatory board, a final order that results from the board's notice of intent to impose
a disciplinary sanction or a consent order or stipulated agreement that involves licensee or applicant conduct shall
summarize the factual basis for the board's disposition of the matter."
ORS 183.470 requires that a final order in a contested case, other than one incorporating an informal disposition,
must be accompanied by findings of fact and conclusions of law and that the findings of fact must consist of a
concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each
ultimate fact required to support the board's order. This requirement applies to all final orders, irrespective of
whether the order results from a notice of intent to impose a disciplinary sanction that was issued by a majority
vote of the whole board; final orders that meet this requirement would also satisfy the requirement for a summary
contained in ORS 676.175(4).
Final orders incorporating an informal disposition are not subject to ORS 183.470. ORS 183.415(5). Such final
orders are also not subject to ORS 676.175(4)'s requirement for a summary unless the final order results from a
notice of intent to impose discipline that was issued by a majority vote of the board.
ORS 676.175(4) requires all consent orders and stipulated agreements that involve licensee or applicant conduct to
summarize the factual basis for the board's disposition, whether or not the consent order or stipulated agreement
resulted from a notice of intent to impose a disciplinary sanction that was issued by a majority vote of the whole
board.
We recommend that board staff contact their assigned legal counsel to assist in the preparation of findings of fact
as required by ORS 183.470 and the summary of the factual basis for the board's disposition of the case as required
by ORS 676.175(4). Board staff should also seek the advice of assigned legal counsel in assessing whether such
findings or summary would be appropriate in final orders incorporating an informal disposition not subject to
either ORS 183.470 or ORS 676.175(4).

5. Records Created Before Effective Date of the Act
   ORS 676.165 and 676.175 became effective on October 4, 1997. Or Laws 1997, ch 791. We are asked whether the
   confidentiality provisions of ORS 676.165 and 676.175 apply to information received or records created before
   October 4, 1997, or only to information received or records created after October 4?
   A. Investigator's Report and Information Obtained as Part of an Investigation
   ORS 676.165(5) exempts from public disclosure investigatory information and "the report" issued by the
   investigator. This provision makes no distinction between reports issued before or after the effective date of this
   statute.
   ORS 676.175(1) provides that the "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." The plain meaning of the term
   "obtained" includes both information previously obtained by the board (whether or not such information is
   contained in a record) and any information obtained by the board after the effective date of ORS 676.175. Had the
   legislature intended the confidentiality provisions to apply only to information obtained after the effective date of
   this statute, it could have expressly so provided.
   In the absence of an explicit limitation on ORS 676.165(5) and 676.175, we conclude that these statutes apply to all
   investigatory information and investigator reports held by the board on the effective date of those statutes and to all
   such information and reports obtained in the future.
   ORS 676.175(2) provides for the disclosure of information obtained as part of an investigation of an applicant or
   licensee under certain circumstances. For the reasons stated above, we conclude that this provision applies to
   information obtained by the board before the effective date of ORS 676.175 and to information obtained thereafter.

We note, however, that one of the conditions precedent to the board's duty to disclose under ORS 676.175(2) is a
determination by a majority vote of the board that no notice of intent to impose a disciplinary sanction be issued
regarding the licensee or applicant. As more fully explained above, in the absence of such a vote in a particular
case, there is no obligation to disclose and the information must remain confidential.
We are informed that in the past the Board of Nursing has not voted to close cases following an investigation of a
complaint of alleged licensee misconduct, but has delegated this function to staff. In such cases, since no board vote
was taken regarding the initiation of disciplinary action, the condition precedent to disclosure is not satisfied, and
the information obtained as part of an investigation in these closed cases must remain confidential under ORS
676.175(1).
We have no information regarding whether in the past any board has chosen not to vote on the issuance of licenses
to applicants whose conduct has been the subject of an investigation, but has delegated the authority to staff to issue
licenses. If there are any cases in which a majority vote of the whole board was not taken to approve the
application, a condition precedent to disclosure would not be satisfied, and any information obtained by the board
as part of an investigation in these cases in which the license has been granted must remain confidential under ORS
676.175(1).
B. Notice of Intent to Impose a Disciplinary Sanction
ORS 676.175(3) provides that the board shall disclose a notice of intent to impose a disciplinary sanction against a
licensee or applicant that has been issued by a majority vote of the board. For the reasons stated above, we
conclude that this provision applies to a notice of intent to impose a disciplinary sanction against a licensee and a
notice of intent to deny an application issued by a majority vote of the whole board either before or after the
effective date of ORS 676.175.
We are informed that in the past the Board of Nursing has generally not voted to issue either the notice of intent to
impose a disciplinary sanction against a licensee or the notice of intent to deny an application and has instead
delegated this function to staff. In such cases, since no board vote was taken regarding the initiation of disciplinary
action or denial of a license, the condition precedent to disclosure of the notice is not satisfied and such notices
issued by staff are not required to be disclosed. Rather, they must be held confidential under ORS 676.175(1).
Any notice issued by a majority vote of the quorum of the board but by less than a majority vote of the whole board
is not required to be disclosed by ORS 676.175(3) and must be held confidential under ORS 676.175(1), whether
issued before or after the effective date of the statute.
C. Final Orders, Consent Orders, Stipulated Agreements and Information to Further
an Investigation under ORS 192.685
ORS 676.175(3) also provides that the board shall disclose a final order that results from the board's notice of
intent to impose a disciplinary sanction, a consent order or stipulated agreement that involves licensee or applicant
conduct,(8) and information to further an investigation into board conduct under ORS 192.685.
We conclude that final orders that result from a notice of intent to impose discipline must be disclosed (1) whether
or not the notice was issued by a majority vote of the whole board and (2) whether or not the final order was issued
before or after the effective date of the Act. We further conclude that consent orders and stipulated agreements
that involve licensee or applicant conduct issued either before or after the effective date of ORS 676.175 must be
disclosed.
We also conclude that when the GSPC seeks information from a board as part of an investigation conducted
pursuant to ORS 192.685 regarding board compliance with ORS 192.660, the board shall disclose such information
to the GSPC regardless of whether the events being investigated occurred before or after the effective date of ORS
676.175.

6. Information to Further an Investigation Under ORS 192.685
   ORS 676.175(3) lists documents and information that the board must disclose despite the confidentiality granted to
   such information under ORS 676.175(1). Included in this list is "information to further an investigation into board
   conduct under ORS 192.685." We are asked what is meant by this phrase.

ORS 192.685 relates to the role of the Government Standards and Practices Commission (GSPC) in investigating
allegations of the improper use of executive sessions by boards under the Public Meetings Law, ORS 192.610 to
192.710. Boards may meet in executive session, and thus exclude the public, only for the purposes listed in ORS
192.660. If an individual believes that a board improperly met in executive session or discussed items outside the
authorized scope of an executive session, the individual may file a complaint with the GSPC. The GSPC is
empowered to review and investigate such complaints. Specifically, ORS 192.685 permits the GSPC to interview
witnesses and to review minutes and other records pertaining to the session, including those records that served as
a basis for meeting in executive session. As a result, the GSPC becomes privy to information that is confidential and
not subject to public disclosure. The GSPC needs access to such information to determine if the board that was the
subject of the complaint has complied with the Public Meetings Law.
ORS 676.175(3) requires the boards to disclose information to further an investigation conducted pursuant to ORS
192.685. This would include information that would otherwise not be disclosed by virtue of ORS 676.175(1).(9)

7. Disclosure to Sister Agencies and Licensees
   We are next asked whether ORS 676.165 and 676.175 prohibit the boards from disclosing information obtained as
   part of an investigation of a licensee or applicant: (a) to sister agencies within or without the state, to law
   enforcement agencies (including the district attorney, Attorney General and DEA), (b) to witnesses in the course of
   an investigation, and (c) to a licensee in the course of a contested case proceeding.
   ORS 676.165(5) provides that investigatory information obtained by an investigator and the investigator's report
   "shall be exempt from public disclosure." ORS 676.175(1) provides that the boards "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."
   (Emphasis added.) The term "public" is not defined in ORS 676.165 or 676.175. Its common definitions includes
   "the people as a whole : populace, masses." Websters at 1836. From the entire context of ORS 676.165 and 676.175,
   we are confident that the legislature did not intend to prohibit disclosure to the populace as a whole while
   permitting disclosure to individual members of the public. The staff of state and federal agencies are individual
   members of the public as are witnesses and the licensee. Nevertheless, they each have a special relationship to the
   investigation of a licensee that might distinguish them from the public generally.
   A. Disclosure to Sister Agencies and Law Enforcement Agencies
   In reviewing other statutes that include confidentiality provisions that are "notwithstanding ORS 192.410 to
   192.505 [the Oregon Public Records Law]," we have interpreted the prohibition on disclosure as applying only to
   disclosure to "the public" as mandated by the Public Records Law and not to disclosure to other state agencies. See
   47 Op Atty Gen 1, 10 (1993) (interpreting ORS 279.359(3)). We find no basis for such a limited interpretation of the
   confidentiality provision in ORS 676.165 and 676.175. We conclude that ORS 676.165 and 676.175 prohibit the
   sharing of confidential information between agencies unless expressly authorized by statute.
   Considering not only the text of ORS 676.165 and 676.175 but also their context, as required by PGE, 317 Or at
   611, we note that in several instances where the existing organic statutes of several boards required or permitted
   disclosure of confidential information to other state agencies, those provisions were limited or deleted when ORS
   676.165 and 676.175 were enacted. For example, until the passage of these statutes, the Board of Dentistry
   employees had been permitted to render assistance to the district attorney, and the Physical Therapist Licensing
   Board had been required to report all cases warranting criminal prosecution to the appropriate district attorney.
   Under ORS 679.180(1) and 688.220(1), as amended by SB 235, any cooperation with or reports to the district
   attorney are now subject to the non-disclosure requirements of ORS 676.175. Or Laws 1997, ch 791, §§ 26, 44.
   Thus, these two boards may not disclose any information they obtained as part of their own investigation of a
   licensee or applicant except as specifically permitted under ORS 676.175(2) and (3).
   The Board of Medical Examiners (BME) is required to inform the district attorney of all facts that the BME
   believes could be a basis for criminal prosecution. ORS 677.320(1). Although that particular requirement was left
   intact, the legislature amended its companion statute, ORS 677.330, dealing with the use to which the information
   provided by BME could be used. Or Laws 1997, ch 791, § 20. Under ORS 677.330(1), as amended by SB 235, the
   district attorney may now bring to the attention of the grand jury only information that has been "independently
   developed" by the district attorney, the Attorney General or other law enforcement agencies and, thus, not the
   information provided by the BME.

Moreover, under ORS 677.425(3), the BME previously had authority to share confidential information with other
state medical boards. That provision was deleted in its entirety by SB 235. Or Laws, 1997, ch 791, § 21.
We infer from these instances in which SB 235 amended or repealed previously existing statutes that required or
permitted disclosure of information to the district attorney or to other boards, that the legislature intended the
prohibition in ORS 676.165 and 676.175 on disclosure of investigatory information to the public to extend to such
entities unless disclosure is expressly authorized by statute. Because this conclusion is not free from uncertainty,
however, we look to the legislative history of ORS 676.165 and 6676.175.
As originally introduced, SB 235 specifically permitted state agencies to share confidential information obtained
during the course of an investigation, stating in pertinent part:
(2)(b) Information that otherwise would be confidential under this section may be released to other
health care profession or facility licensing authorities within or without the state, units of government
responsible for licensing, franchising or providing emergency medical services to the extent the
disclosed material could relate to those duties, a district attorney, the Attorney General and law
enforcement agencies. * * *
SB 235, § 2(2). The final version of SB 235, however, no longer contained this language.
When the legislature specifically rejects language in a proposed bill, an inference of negative intent may be drawn.
Southern Pacific Co. v. Heltzel, 201 Or 1, 268 P2d 605 (1954). Southern dealt with the authority of the Public Utility
Commissioner to establish minimum railroad rates under then existing law. The legislature considered and then
rejected a bill that would have specifically permitted the Commissioner to do so. The Oregon Supreme Court found
that by rejecting the proposed bill, the legislature expressed its intent that the Commissioner was not to be vested
with that authority. Similarly, the deletion of the specific language in SB 235 permitting disclosure of confidential
information to sister agencies may be viewed as a specific intent by the legislature to preclude disclosure to sister
agencies as part of the Act's prohibition on disclosure of investigatory information. This conclusion is buttressed by
the retention of language permitting the disclosure of information to the GSPC and the amendment or repeal of
existing board statutes that had permitted sharing of confidential information.
As introduced, SB 235 permitted the disclosure of confidential information to the GSPC to further an investigation
into board conduct. This section survived the legislative process and appears in ORS 676.175(3). It is significant
that the portion of the original bill dealing with sister agencies was deleted while this section permitting disclosure
of information to the GSPC was retained. If the legislature intended to permit the boards to release information to
other state agencies, the legislature could have retained the original language permitting that, as it did with respect
to disclosure to the GSPC.
Given the amendment or repeal of previously existing statutes that required or allowed interagency disclosure of
confidential information and the deletion from the original bill of language specifically permitting such disclosure,
we conclude that ORS 676.165(5) and 676.175 do not permit the sharing of confidential information among state
agencies or with the district attorney or the Attorney General when functioning as a law enforcement agency,
except as specifically authorized by statute.(10)
B. Disclosure to Witnesses
Generally, investigators talk to witnesses as part of the investigation into licensee or applicant conduct. Witnesses
may include the complainant if the investigation was precipitated by a complaint. Witnesses are members of the
public. Therefore, by their terms, ORS 676.165(5) and 676.175(1) would preclude the board from disclosing to
witnesses any investigatory information or the investigator's report.
Often it will be necessary, however, for an investigator to provide certain information to witnesses in order for an
interview to be productive. Such information may include the name of the applicant or licensee and the facts giving
rise to the complaint being investigated. Because there is no explicit authorization in ORS 676.165 or 676.175 to
disclose information to witnesses, the plain meaning of those statutes would require that all information obtained
during the course of an investigation be withheld from witnesses. Taken to the extreme, such a conclusion could
lead to the absurd result of the board being unable to conduct a complete and competent investigation. We do not
believe that the legislature in enacting ORS 676.175 intended such a result. Cf. State v. Vasquez-Rubio, 323 Or at
283; McKean-Coffman v. Employment Div., 312 Or 543, 549, 824 P2d 410 (1992) (courts must refuse to apply

language literally when to do so would produce an absurd result; instead, courts must interpret the statute "so that
it is reasonable and workable and consistent with the legislature's general policy").
We interpret ORS 676.175, therefore, to allow a board and those conducting investigations on the board's behalf to
disclose information to witnesses to the extent necessary to conduct a complete and competent investigation. For us
to reach an alternative conclusion would imperil the boards' ability to adequately fulfill their licensure and
disciplinary obligations as mandated by statute. This interpretation is not meant to imply that a board has carte
blanche to disclose investigatory information to witnesses. For example, in questioning a patient about a particular
licensee, an investigator need not, and may not, disclose the fact that a complaint has been filed against the licensee.
Nor may the investigator disclose statements made by other witnesses about the licensee's conduct. The spirit of
ORS 676.175 must be observed, and boards should instruct their investigators to ensure that only such information
is disclosed to witnesses as is necessary for the investigator, on behalf of the board, to conduct an interview that will
allow the witness to provide all information that he or she may possess relevant to the investigation.
C. Disclosure to Licensees
The licensee is also a member of the "public." Thus, by their terms, ORS 676.165(5) and 676.175(1) would not
permit the board to disclose investigatory information or the investigator's report to a licensee. Moreover, because
ORS 676.175(1) is also intended to protect from disclosure information "permitting the identification of
complainants," we believe that a board is prohibited from disclosing to a licensee the name of the individual(s) who
have filed complaint with the board about the licensee.
Notwithstanding the prohibition in ORS 676.175(1) against disclosure of information obtained as part of an
investigation of a licensee or applicant, due process requires that in a contested case a licensee or applicant is
entitled to be informed of the case against the licensee or applicant. See Or Const Art I, § 10; US Const Am XIV, §

1. This does not mean, however, that a board may turn over its entire investigative file to a licensee or applicant.
   Due process only requires that an individual be generally informed of the case against him or her, not given carte
   blanche to examine a board's confidential files. Gregg v. Racing Commission, 38 Or App 19, 588 P2d 1290 (1979);
   Spray v. Board of Medical Examiners, 50 Or App 311, 624 P2d 125 (1981). As the Court of Appeals stated in Gregg,
   "A party does not have a right to delve and pry into all the records of the agency, or to examine secret reports of
   the agency's investigators." 38 Or App at 26.
   In practice, the due process requirement has been interpreted to mean that all reports, documents and information
   in the board's possession that the board intends to rely on during the contested case proceeding should be disclosed
   to the licensee or applicant during the contested case process. Confidential information contained in the board's
   files that will not be relied upon during the contested case proceeding need not be provided to the licensee or
   applicant. Id.
   An individual who is the subject of a complaint but to whom a notice of intent to impose disciplinary action has not
   been issued should not be given confidential information on request. That should occur only after the notice has
   been issued as that is when the individual's due process rights come into play.
   During the course of an investigation, it is often necessary to partially disclose some information in order to conduct
   an adequate investigation. For example, a licensee would necessarily need to understand what conduct is being
   called into question in order to answer questions posed by the investigator. We believe that ORS 676.175 was not
   intended to impede investigations and that in posing questions to a licensee the investigator may disclose to the
   licensee information obtained as part of the investigation to the extent that is necessary to conduct a complete
   investigation. We would caution, however, that any such use of confidential information must be as limited and
   circumspect as possible and may not identify the complainant(s).
2. Investigations and Report of Investigator
   Question eight asks several questions about ORS 676.165, which relates to investigations and the report of the
   investigator. ORS 676.165 is triggered by the "receipt of a complaint by any person against a licensee or applicant."
   Upon receipt of such a complaint, ORS 676.165 requires the boards to assign an investigator, who must collect
   evidence and make a report to the board within 120 days after the board receives the complaint.
   A. Complaint by Any Person

We are asked what is a "complaint by any person" for purposes of ORS 676.165 and whether it includes
complaints from entities such as other boards. We first consider whether the reference to a "person" includes the
board itself. If the board is a person, then an investigation that the board self-initiated would be subject to the
strictures of ORS 676.165. Based on the text and context of ORS 676.165, we conclude that the board is not a
person within the meaning of ORS 676.165.
The term "person" is not defined in ORS 676.165. Websters defines "person" as "an individual human being." Id.
at 1686. Thus, based upon text alone, we would conclude that a board is not a person for purposes of ORS 676.165.
We also consider the context of ORS 676.165, which includes related statutes. Two related statutes are the
Administrative Procedures Act (APA), ORS chapter 183, which governs agency administrative proceedings, and
the Public Records Law, ORS 192.410 to 192.505, which governs the disclosure of public records and was amended
by SB 235. The APA defines a "person" as
any individual, partnership, corporation, association, governmental subdivision or public or private
organization of any character other than an agency.
ORS 183.310(7) (emphasis added). We have interpreted the term "person" in the Public Records Law as excluding
public bodies, as well. Letter of Advice dated June 26, 1987, to Wanda Clinton, Department of Revenue (OP-6049)
at 8. Because these definitions are in statutes related to ORS 676.165, we believe they provide the context for
interpreting that statute and that the term "person" should be construed consistent with its use in the APA and the
Public Records Law. Accordingly, we conclude that for purposes of ORS 676.165, a "person" need not be a natural
person and may be an entity as described in ORS 183.310(7), but that the board itself or any other state agency
does not come within this term. Thus, cases initiated by the boards' own staff, investigators, board members, or
investigated by another state agency that refers the case to one of the boards, would not be complaints by a
"person," and the strictures of ORS 676.165 would not apply.(11)
We concluded above in response to question two that, for purposes of ORS 676.165, a "complaint" is an expression
of resentment, protest or formal allegation about a licensee or applicant. Thus, a person's mere inquiry about a
licensee or applicant would not trigger the 120-day requirement of ORS 676.165 even if the board begins an
investigation of that licensee or applicant following the inquiry. To trigger ORS 676.165, a person must make a
complaint to the board that expresses some protest, resentment, sense of injustice or formal allegation against a
licensee or applicant.
1) Oral Complaints
We are asked whether the board must accept and investigate oral complaints. There is no requirement in ORS
676.165 that a complaint be in writing to trigger the requirements of ORS 676.165. If the legislature had wanted to
require a complaint to be in writing, it could have easily added the word "written" in front of the word
"complaint" in ORS 676.165(1). We may not add to the law that which the legislature left out, nor delete that which
the legislature has put into the law. ORS 174.010.
The boards might wish to have written accounts of complaints about their licensees or applicants, and there is
nothing wrong with asking for that to be done. A board may not refuse to conduct an investigation, however,
merely because the complaint was made orally.
Some boards have specific statutes that require a written complaint or charges to be filed with the board. For
instance, ORS 677.200(1) requires a written complaint in order for the BME to institute disciplinary action, and
ORS 683.155(1) requires written charges to be filed with the Board of Optometry sufficient to warrant a hearing
before imposing discipline. These statutes relate to the formal charges to be filed against a licensee and do not
pertain to initial complaints by a patient, a consumer, another professional or anyone else against a licensee. In the
absence of a statutory requirement, a written complaint is not a prerequisite to the board's duty to institute an
investigation under ORS 676.165.
2) Investigations of Applicants When There Is No "Complaint"
We are next asked whether the 120-day requirement applies to investigations of applicants when there is no
"complaint." As discussed above, ORS 676.165 applies only when the board receives a complaint from a person
about an applicant or licensee. If the board institutes a routine investigation on an applicant for a license, the

timelines in ORS 676.165 would not apply.
ORS 676.165 could apply during the course of an application investigation if a person made a complaint to the
board about, for example, the applicant's unfitness to be licensed. In that case, the "complaint" would trigger the
requirements of ORS 676.165 for an investigation of the applicant.(12)
3) Notices of Potential Problems with a Licensee
We are also asked whether the 120-day requirement applies to investigations opened as a result of notice received
by the board of potential problems with a licensee, such as a DEA notice that a licensee has a high prescription rate
for controlled substances, a notice from an insurer pursuant to ORS 742.400, a news article that causes the board to
initiate an investigation of a licensee, or a board's routine inspection of a pharmacy or mortuary that generates an
investigation.
As discussed above, a complaint connotes some dissatisfaction or allegation of wrongdoing. The various types of
"notice" described in this question do not appear to be complaints, but rather inquiries, reports or alerts, and the
requirements of ORS 676.165(1)-(4) would not apply.(13)
Inquiries are commonly made by persons who have interests in professional licensing or in related areas, such as
the DEA's tracking of controlled substances or an insurer's inquiry concerning the efficacy of a certain procedure
or standard of care. Similarly, insurers are required to "report" medical malpractice claims and the resulting
histories. Such inquiries and reports generally would not come within the meaning of the term "complaint,"
although it is possible for a complaint to accompany an inquiry or report.
When the board itself initiates an investigation because of a newspaper article or the board's routine practices, and
no complaint by a person has been received, then ORS 676.165 is inapplicable by its terms.
B. Complaints Received before October 4, 1997
We are asked whether the requirements of ORS 676.165 apply to complaints received before October 4, 1997. ORS
676.165 took effect on October 4, 1997. Or Laws 1997, ch 791. There was no retroactivity clause in SB 235, and
retroactive application of the 120-day requirement would make compliance impossible for complaints received
more than 120 days before the effective date of ORS 676.165. Therefore, we conclude that the requirements of ORS
676.165 do not apply to complaints received before October 4, 1997.
C. Beginning of 120-day Period
We are next asked if the 120-day period starts when the complaint is received by board staff or when the members
of the board review the complaint and assign it to the investigator at the board's next meeting. The 120-day period
starts from the receipt of a complaint in the board's office. The "board" is both the agency itself and the composite
of the individual members who sit on the "board." In ORS 676.160, the legislature defined "health professional
regulatory board" as one of the listed state agencies. For purposes of ORS 676.160 to 676.180, the legislature did
not distinguish the composite board members except in those provisions of ORS 676.175 that require a majority
vote of the board. Therefore, we conclude that a complaint received by the agency staff has been received by the
"board" whether or not an investigator is assigned.
The question implies that the board members review each complaint. We understand that many boards do not
function in this manner but evaluate complaints as described below.
The staff reviews the complaint to determine if the allegations could constitute a violation of the statutes the board
is charged with enforcing. Sometimes complaints are received concerning matters that are not subject to potential
board action, e.g., a disputed bill for services that is not alleged to be fraudulent or misrepresented. In those
instances, the complaint might be closed administratively by the staff. Because of the mandate in ORS 676.165 that,
upon receipt of a complaint, the board "shall assign" an investigator, it would be prudent for the board to delegate
to the administrator or other staff the authority to assign one or more staff persons to act as investigator of the
complaint. There is no dispensation in ORS 676.165 for complaints that are not within the board's purview. Thus,
an investigator must make a report to the board on all complaints even if the investigation is very limited.(14)
When the complaint appears to state allegations that do fall within the board's jurisdiction, we are informed that

boards generally assign either a staff member, a contractor, a member of the board, or some combination of those
persons to be the investigator. In any case, the conditions of ORS 676.165 apply, and the investigator is charged
with the duty to collect evidence, to interview witnesses and to make a report to the board within 120 days unless
the investigation time is extended by the board.
D. Completion of Investigation and Investigator's Report
We are also asked whether the investigation must be complete within 120 days from the receipt of a complaint or
whether the investigator may merely file a status report on the investigation within that time period. The text and
context of the statute clearly suggest that the legislature intended the investigation to be completed as soon as
reasonably possible. Although the investigator need not necessarily complete the investigation within 120 days (due
to the extension clause in ORS 676.165(4)), we conclude that the investigator's report must be more than a mere
status report.
The required report "shall describe the evidence gathered, the results of witness interviews and any other
information considered in preparing the report" and must include any disciplinary history of the applicant or
licensee. The report is intended to be a final report of the effort of the investigator and not a status report. If the
investigator has not completed the investigation, the board may grant 30-day extensions for "just cause." Such a
just cause provision would be virtually unnecessary had the legislature intended the 120-day requirement to be
satisfied by a status report.
We look to the legislative history of ORS 676.165 to confirm this interpretation. See Nolan v. Mt. Bachelor, Inc., 317
Or 328, 335, 856 P2d 305 (1993) (citing State ex rel Juv. Dept. v. Smith, 316 Or 646, 651, 853 P2d 282 (1993) ("where
text of statute suggested a particular interpretation, court looked to legislative history of statute for confirmation").
The provisions of ORS 676.165 were not in SB 235 as introduced. In the first Proposed Amendments to Senate Bill
235, Sections 5 and 6 pertained to the creation and functions of an Office of Health Professional Regulatory Board
Ombudsman within the Department of Human Resources. The proposed amendments directed that office to
investigate cases in which a health professional regulatory board failed to take timely action on a complaint or
failed to completely perform any duty imposed by law or by board rule.
Following the public hearings and work sessions, all references to the Ombudsman were dropped but the bill was
amended to include the "timeliness" requirement for investigations in Section 5. SB 235 A-Eng, June 4, 1997. The
bill was eventually passed by the legislature and signed by the Governor without further amendment to Section 5 or
inclusion of the Ombudsman provisions. By all appearances, the conditions in Section 5, which was codified as ORS
676.165, ameliorated the perceived need for an oversight board or "watch-dog", and the legislature was satisfied
that the public's "complaints" would be handled in a timely fashion if the investigations were completed within that
statutory timeline.
E. "Just Cause"
We are asked what qualifies as "just cause" to extend the time period in which to file a report, and how the
existence of "just cause" should be documented. "Just cause" is a legal term that means "[l]egitimate cause; legal
or lawful ground for action; such reasons as will suffice in law to justify the action taken." Black's Law Dictionary
at 775 (5th ed 1979). The reasons that would suffice in law for a board to justify extending the time for receipt of
the investigator's report would likely include the following:
1) Complexity of the case (number of allegations, transactions, witnesses and documents),
2) Location of evidence (geographic distribution),
3) Unavailability of witnesses until a later time,
4) Pendency of other actions involving the licensee that could affect the investigator's ability to obtain evidence, and
5) Ability of the investigator to accomplish the task due to work load, health, vacation and similar factors.
If an investigator is unable to make the report in 120 days because of just cause, those reasons should be
documented in the investigative file. That information should also be provided to the board for its consideration of
a 30-day extension under ORS 676.165(4).

F. Authority to Grant a 30-day Extension
Next, we are asked whether the whole board must vote to grant a 30-day extension, or whether this decision can be
delegated to a subcommittee of the board or to the board's executive director. ORS 676.165(4) states that the
investigator shall make a report "to the board." This language could mean that the investigator must file a written
report in the board's office within 120 days, or it could mean that the investigator must make a written or oral
report to the board en banc no later than 120 days after the complaint was received in the board's office. As
discussed above, we conclude from the text of ORS 676.160 to 676.180 that the legislature's use of the term "board"
without reference to its members, or majority votes, means the agency listed in ORS 676.160. Although ORS
676.165 is clearly a limitation on protracted investigations, we find no basis to conclude that the legislature intended
SB 235 to reallocate responsibilities between the agency and the appointed board members or to preclude those
members from utilizing the expertise and administrative talents of agency staff.
If the legislature had intended to require a quorum of the board to receive the investigator's report or a majority
vote of the board in order to grant each 30-day extension, the legislature could have so stated. Absent such
statutory language, we conclude that a report filed with agency staff within 120 days will meet the investigator's
statutory obligations, assuming that the governing body of the agency (usually a majority of the board members)
delegates to a person or persons within the agency the authority to receive the investigator's report. Likewise, the
board may delegate the decision to grant a 30-day extension for just cause to a person or persons within the agency.
G. Consequences for Not Filing Report Within Required Time
Finally, we are asked what the consequences are for not filing a report within the required time (within the initial
120-day period or within a 30-day extension period). The legislature provided no consequences if the investigation
report is not made in a timely manner, and we cannot read one into the statute. ORS 174.010.

9. Assigned Investigator
   Question nine asks whether the "investigator" must be a member of the health professional regulatory board, and
   whether a person who is not the "assigned" investigator may conduct any part of the investigation and make the
   report to the board. ORS 676.165 does not identify or limit who can be assigned as an investigator of the complaint,
   although that statute does provide for the possibility that more than one investigator could be assigned to the same
   complaint. ORS 676.165(1).
   It is "the investigator" who must make the report to the board. ORS 676.165(4). Given the possibility that a board's
   investigative staff might change after beginning the investigation but before its conclusion, it would make sense for
   the board to delegate to a manager in the agency the authority to "assign" all investigators to the complaint, with
   one primary investigator. Then, if the primary investigator was unavailable at the time that the report is completed,
   one of the other assigned investigators could fulfill the obligation of making the report to the board. If the primary
   investigator is a board member, the other contingent investigator(s) could be other board members, staff or
   contract investigators, assuming that such assignments were made by the board itself or delegated to agency staff.
   If a person has not been assigned as the investigator or as one of the investigators, then that person may not have
   the full investigatory powers given in ORS 676.165(2) and the resulting report may not be exempt from public
   disclosure under ORS 676.165(5). Any investigatory information contained in the report, however, would remain
   subject to the confidentiality requirements of ORS 676.175 so long as the person obtaining the information was
   doing so on behalf of the board. This should not be an issue if the investigator is a board or staff member. If the
   investigator is performing investigatory services under contract, the contractual language should make clear that
   any information obtained by the investigator while performing work pursuant to the contract will be considered to
   be information obtained directly by the board for purposes of ORS 676.165 and 676.175 and treated accordingly.
10. Exemption from Disclosure of Investigatory Information Under ORS 676.165
    We are next asked whether ORS 676.165(5) conflicts with the disclosure requirements in ORS 676.175(2) and (3)
    and, if so, which prevails. ORS 676.165(5) states:
    Investigatory information obtained by an investigator and the report issued by the investigator shall
    be exempt from public disclosure.
    Although ORS 676.175(1) requires the boards to "keep confidential and not disclose" to the public any

investigation information obtained by the boards, ORS 676.175(2) and (3) require disclosure of some of that
information in certain circumstances, including disclosure of notices of intent to impose disciplinary action and
final orders, which are required by ORS 676.175(4) to contain a summary of the factual basis for the board's
disposition.
We conclude that the mandate in ORS 676.175(2) and (3) that the board "shall disclose" the information specified
therein was intended to supersede the restrictions on disclosure in ORS 676.165(5). The entire statutory scheme of
ORS 676.160 to 676.180 and the boards' own organic acts presume that the boards need to conduct investigations in
order to determine if licensees or applicants are safe to practice in Oregon. It would be an absurd result to conclude
that the board must assign one or more investigators to look into complaints but that whatever information was
reported back to the board could not be included in a notice of intent to impose a disciplinary sanction, a final
order, a consent order or a stipulated agreement because at some point some of that investigatory information
would be subject to public disclosure under ORS 676.175(2) and (3).
We interpret ORS 676.165(5) to mean that, although the actual records of the investigator and the investigative
report itself are not subject to disclosure, the investigator's work product may be used by the board to create a
notice, order, agreement or fact summary contained therein that would be subject to public disclosure. Any other
conclusion would mean that the board would have to investigate complaints but could not use the results of an
investigation because it could lead to public disclosure of the "investigatory information" in violation of ORS
676.165(5). We decline to find that the legislature intended such a result.(15)

11. Hearings Before a Hearings Officer
    We are asked whether the confidentiality provisions of ORS 676.165(5) and 676.175 require the public (and the
    news media) to be excluded if a hearing on a notice of intent to impose a disciplinary sanction on a licensee or a
    hearing on a notice to deny an application for licensure is held before a hearings officer. For the purposes of this
    question, we assume that the evidence and other testimony offered into evidence at the hearing was obtained by the
    board through an investigation and that the contested case involves licensee or applicant conduct.
    ORS 676.165(5) exempts from disclosure investigatory information and the investigator's report. ORS 676.175(1)
    provides that the board must keep confidential and not disclose to the public any information obtained by the
    board in the investigation of a licensee or applicant, including complaints concerning licensee or applicant conduct
    and information permitting the identification of complainants, licensees or applicants. It is possible that evidence
    and other testimony offered at a hearing involving licensee or applicant conduct was not previously obtained
    during the investigation of the case. In regard to each of the boards covered by SB 235, that Act either expressly or
    by necessary implication provides that information the board obtains as part of a contested case proceeding is
    confidential as provided under ORS 676.165 and 676.175. See, e.g., Or Laws 1997, ch 791, § 25 (express) and § 10
    (implied). Any other interpretation would not only defeat the confidentiality obviously intended by the Act but also
    require a painstaking comparison of hearing testimony against statements obtained by the investigator(s) in order
    to determine whether the testimony provided any new information. Thus, we conclude that all of the testimony and
    other evidence offered in a hearing in a contested case is confidential and is not subject to public disclosure.
    A contested case hearing before a hearing officer is not a public meeting of a governing body of a public body under
    the Public Meetings Law, ORS 192.610 to 192.710. Consequently, neither the public nor the press are legally
    entitled to attend. To permit either a member of the public or a representative of the media to attend a hearing
    before a hearing officer would be a violation of the confidentiality requirements of ORS 676.165 and 676.175.(16)
    We conclude therefore that the public and the media must be excluded from hearings before a hearing officer.
12. Hearings Before a Quorum of the Board and Deliberations
    Question 12 asks about the attendance of the public and the press when hearings are held before a quorum of the
    board.
    A. Executive Sessions
    We are first asked whether the confidentiality provisions of ORS 676.165 and 676.175 require an executive session
    when a hearing on a notice of intent to impose a disciplinary sanction on a licensee or a hearing on a notice to deny
    an application for licensure is held before a quorum of the board. ORS 676.165(5) exempts from public disclosure
    investigatory information and the investigator's report. ORS 676.175(1) requires the board to keep confidential and

not disclose to the public any information obtained by the board "as part of an investigation" of a licensee or
applicant, including complaints concerning licensee or applicant conduct and information permitting the
identification of complainants, licensees or applicants. As noted above, we conclude that all testimony and other
evidence offered in a hearing in a contested case is confidential and is not subject to public disclosure.
A contested case hearing held before a quorum of the board is a public meeting of a governing body of a public
body under the Public Meetings Law.(17) Pursuant to ORS 192.630, all public meetings must be open to the public
unless an executive session is authorized by law. ORS 192.660 was amended by SB 235 and now provides that an
executive session may be held by the board "to consider information obtained as part of an investigation of licensee
or applicant conduct." Or Laws 1997, ch 791, § 9. We conclude that this basis for an executive session includes
consideration of testimony and other evidence obtained during the hearing in the contested case proceeding even if
the information had not previously been obtained during the investigation of the case.
We further conclude that because of the confidentiality provisions in ORS 676.165(5) and 676.175, the board must
hold the contested case hearing in executive session. There is no law authorizing the public to attend an executive
session, and to permit a member of the public to attend a hearing before a quorum of the board would be a
violation of the confidentiality requirements of ORS 676.165 and 676.175. Therefore, the public must be excluded
from hearings before a quorum of the board.
B. Attendance by News Media
Given our answer to the above question, we are also asked whether a representative of the news media has the right
to attend such a hearing conducted in executive session. SB 235 did not amend ORS 192.660(3), which authorizes
representatives of the news media to attend executive sessions. Consequently, representatives of the news media are
entitled to attend the hearing portion of a contested case proceeding held before a quorum of the board in executive
session.(18) To conclude otherwise would require us to read into the Public Meetings Law a prohibition for media
attendance at all executive sessions authorized by ORS 192.660(1)(f) to consider records that are exempt by law
from public inspection under the Public Records Law because their disclosure is prohibited by other Oregon law.
Such an interpretation would conflict with the express exclusion of the news media from only specified executive
sessions. See ORS 192.660(3) and (4).

13. Board Deliberations
    We are also asked whether a member of the public or a representative of the news media may be present when the
    board deliberates in a contested case proceeding. Following receipt of the testimony and other evidence at the
    hearing in a contested case, the hearing concludes and the members of the board proceed to deliberate the case.
    Meetings of board members to deliberate in a contested case are not covered by the Public Meetings Law or any of
    its requirements. ORS 192.690. Consequently, when the board meets to deliberate in a contested case, the board is
    free of the requirements to provide notice to the public, to meet in public, to keep meeting minutes and to permit
    the press to attend. We conclude that in contested cases involving information made confidential by ORS 676.175,
    the board must conduct its deliberations in private and it must exclude the press.
14. Board Meetings
    The last set of questions concerns ORS 192.660 and the requirements for final action and minutes of board
    meetings.
    A. Final Board Action
    We are first asked whether ORS 192.660 permits the board to take a final vote in executive session. SB 235
    amended the Public Meetings Law, ORS 192.610 to 192.710, to authorize the board to meet in executive session "to
    consider information obtained as part of an investigation of licensee or applicant conduct." ORS 192.660(1)(k).
    This new provision for an executive session leaves unaffected the provision of ORS 192.660(4) that "[n]o executive
    session may be held for the purpose of taking any final action or making any final decision."
    ORS 192.660(1)(k) further provides that "the public disclosure of minutes, transcripts or recordings related to the
    substance and disposition of the matter investigated are governed by ORS 676.175," notwithstanding ORS
    192.660(1)(b), 192.660(1)(c), 192.660(5) or 192.650. ORS 192.660(1)(b) authorizes an executive session when a board
    considers disciplinary matters regarding a board employee. This provision has no application to the board's actions

when considering applications for licensure or disciplinary action regarding a licensee of the board. ORS
192.660(1)(c) authorizes an executive session by the governing body of a public hospital. This statute has no
application to any of the boards covered by SB 235. ORS 192.660(5) prohibits the holding of an executive session
for the purpose of taking final action or making a final decision. This provision has no application to the issue of
public disclosure of meeting minutes, transcripts or recordings of public meetings, whether the meeting is held in
executive session or open session. ORS 192.650 concerns minutes of meetings, and we discuss this statute below.
None of the listed provisions provide any support for the conclusion that final action or final decisionmaking may
be undertaken in executive session. The requirement to take final board action in open session does not conflict
with making minutes, transcripts or recordings of such sessions subject to the confidentiality provisions of ORS
676.165 and 676.175, although those confidentiality provisions will likely alter the manner in which the board takes
certain final votes, as discussed below. We conclude therefore that neither ORS 676.165 or 676.175 nor the
amendments to ORS 192.660 altered the Public Meeting Law's prohibition against holding an executive session to
take final action and that the boards may not take final action or make final decisions during an executive session
of a public meeting.
B. Votes in Open Session and Preserving Confidentiality
In light of our conclusion that the board must take final action in open sessions, we are asked how the
confidentiality provisions of ORS 676.165 and 676.175 require this to be done.
1) Decisions Whether to Issue Notice of Intent to Impose Discipline, Deny
or Grant an Application
When the board convenes in open session for purposes of deciding whether or not to issue a notice of intent to
impose a disciplinary sanction on a licensee, or for the purpose of deciding whether to issue a notice of intent to
deny an application for licensure or to approve the application, the board may not openly discuss any investigatory
information that is confidential under ORS 676.175. Moreover, we recommend that during the open session the
board refer to the case by number only, and not disclose the name of the licensee or applicant or any other
information that would permit the identification of the licensee or applicant. We make this recommendation for the
following reasons.
First, if the motion to issue a notice of intent to impose disciplinary action or to deny an application fails, the
confidentiality provisions of ORS 676.175(1) prohibit the disclosure of the name of the licensee or applicant. This
information may be disclosed only under the provisions of ORS 676.175(2).
Second, if the motion passes and a notice is issued, the notice (including the name of the licensee or applicant) will
only be disclosed under ORS 676.175(3) if the notice was issued by a majority vote of the whole board. If the vote
was by majority of the quorum, but less than a majority of the whole board, it may not be disclosed.
Third, if the motion is to approve an application for licensure following an investigation of applicant conduct the
board violates the confidentiality provisions of ORS 676.175(1) by naming the applicant in the motion. Such
information is only subject to disclosure under ORS 676.175(2).
2) Decisions to Issue Final Orders
In our response to question four, we concluded that all final orders that result from a notice of intent to impose a
disciplinary sanction on a licensee or from a notice of intent to deny an application for licensure must be disclosed
under ORS 676.175(3). Because the final order, at the time it is issued, will include the name of the licensee, we
conclude that disclosing the name of the licensee or applicant in the motion will not violate the confidentiality
provisions of ORS 676.175. (19)
3) Decisions to Issue Consent Orders and Stipulated Agreements
We also concluded in our response to question four that all consent orders and stipulated agreements that involve
licensee or applicant conduct must be disclosed under ORS 676.175(3). However, until a proposed consent order or
proposed stipulated agreement has been approved by the board, it is not subject to disclosure under ORS
676.175(3). If a proposed consent order or proposed stipulated agreement is rejected by the board, the proposed
consent order or proposed stipulated agreement remains confidential. Disclosure of the name of the licensee or

applicant in a motion to approve a proposed consent order or proposed stipulated agreement that is not passed
would violate the confidentiality provisions of ORS 676.175. Of course, if the motion carries and the consent order
or stipulated agreement is approved, disclosure of the name of the licensee or applicant by disclosing the consent
order or stipulated agreement would not violate the confidentiality provisions of ORS 676.175. Because of the
possibility that a proposed consent order or proposed stipulated agreement might be rejected by the board, we
recommend that when voting in open session on a proposed consent order or proposed stipulated agreement, the
board refer to the matter by case number, rather than by the name of the licensee or applicant.
C. Meeting Minutes
Finally, we are asked how ORS 676.175 affects the content and disclosure of board meeting minutes for executive
sessions and open sessions. ORS 192.650(1) requires the board to provide for the taking of written minutes of all
board meetings, which may be in the form of minutes, a recording or a transcript of the meeting. Minutes are
required for meetings held in open session and for meetings held in executive session. ORS 192.650(1) also provides
that all minutes shall be available to the public within a reasonable time after the meeting. However, ORS
192.650(2) provides that the board need not disclose executive session meeting minutes if their disclosure is
inconsistent with the purpose for which the executive session was held.
ORS 192.660(1)(k) provides that "the public disclosure of minutes, transcripts or recordings relating to the
substance and disposition of the matter investigated" under SB 235 "are governed by ORS 676.175." We conclude
that this provision is consistent with ORS 192.650 and that the board is required to keep confidential and not
disclose any part of its executive session meeting minutes that contain confidential information unless required to
do so under the terms of ORS 676.175(2)or (3).
HARDY MYERS
Attorney General

1. The health professional regulatory boards affected by Senate Bill 235 are: the
   Board of Examiners for Speech-Language Pathology and Audiology, Board of
   Chiropractic Examiners, Board of Clinical Social Workers, Board of Licensed
   Professional Counselors and Therapists, Board of Dentistry, Board of Denture
   Technology (and Health Division to extent it regulates the practice of denture
   technology), Board of Examiners of Licensed Dietitians, Board of Massage
   Technicians, Mortuary and Cemetery Board, Board of Naturopathic Examiners, Board
   of Nursing, Board of Examiners of Nursing Home Administrators, Board of Optometry,
   Board of Pharmacy, Board of Medical Examiners, Occupational Therapy Licensing
   Board, Physical Therapist Licensing Board, Board of Psychologist Examiners, Board
   of Radiologic Technology, Veterinary Medical Examining Board, and the Health
   Division to the extent that it certifies emergency medical technicians. ORS
   676.160.
   For ease of reference, we do not distinguish between the boards and the Health
   Division but refer to each of them as a "board," or collectively as "the boards,"
   throughout this opinion.
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2. ORS 676.165 provides:
   (1) Upon receipt of a complaint by any person against a licensee or
   applicant, a health professional regulatory board shall assign one or
   more persons to act as investigator of the complaint.
   (2) The investigator shall collect evidence and interview witnesses and
   shall make a report to the board. The investigator shall have all
   investigatory powers possessed by the board.

(3) The report to the board shall describe the evidence gathered, the
results of witness interviews and any other information considered in
preparing the report of the investigator. The investigator shall
consider, and include in the report, any disciplinary history of the
licensee or applicant with the board.
(4) The investigator shall make the report to the board not later than
120 days after the board receives the complaint. However, the board may
extend the time for making the report by up to 30 days for just cause.
The board may grant more than one extension of time.
(5) Investigatory information obtained by an investigator and the report
issued by the investigator shall be exempt from public disclosure.
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3. ORS 676.175 provides in relevant part:
   (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, including complaints
   concerning licensee or applicant conduct and information permitting the
   identification of complainants, licensees or applicants.
   (2) Notwithstanding subsection (1) of this section, if a health
   professional regulatory board determines by a majority vote of the board
   that no notice of intent to impose a disciplinary sanction shall be
   issued, the board shall disclose information obtained as part of an
   investigation of an applicant or licensee if the person requesting the
   information demonstrates by clear and convincing evidence that the
   public interest in disclosure outweighs other interests in
   nondisclosure, including but not limited to the public interest in
   nondisclosure.
   (3) A health professional regulatory board shall disclose a notice of
   intent to impose a disciplinary sanction against a licensee or applicant
   that has been issued by a majority vote of the board, a final order that
   results from the board's notice of intent to impose a disciplinary
   sanction, a consent order or stipulated agreement that involves licensee
   or applicant conduct, and information to further an investigation into
   board conduct under ORS 192.685.
   (4) If a notice of intent to impose a disciplinary sanction has been
   issued by a majority vote of a health professional regulatory board, a
   final order that results from the board's notice of intent to impose a
   disciplinary sanction or a consent order or stipulated agreement that
   involves licensee or applicant conduct shall summarize the factual basis
   for the board's disposition of the matter.
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4. Some kinds of information submitted by an applicant may be confidential under
   other applicable law. Examples of such confidential information includes medical,
   mental health or chemical dependency information. See, e.g., ORS 179.505,
   430.399(5); 42 USC § 290dd-2. This kind of confidential information may be
   withheld from public disclosure under one or more of the exemptions of the Public

Records Law. See, e.g., ORS 192.502(2), personal privacy exemption; ORS
192.502(8), information the disclosure of which is prohibited by federal law; ORS
192.502(9), information made confidential or privileged under Oregon law.
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5. The minutes of the board's meeting should show the results of all votes and the
   vote of each member by name. ORS 192.650(1)(c).
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6. We understand that at least one board may have subdelegated to staff the
   authority to close files upon completion of an investigation, to issue a notice
   initiating disciplinary action against a licensee or to issue a notice initiating
   a proceeding to deny an application for licensure. Such subdelegation is not
   prohibited by SB 235. Whether such subdelegation is nevertheless permissible is
   beyond the scope of this opinion.
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7. If the licensee requested a hearing on the emergency suspension order, the
   resulting board order "confirming, altering or revoking" the suspension order
   would be a final order.
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8. Section 2(4) of SB 235 provides that if a notice of intent to impose a
   disciplinary sanction has been issued by a majority vote of the board, a final
   order that results from the board's notice of intent to impose a disciplinary
   sanction or a consent order or stipulated agreement that involves licensee or
   applicant conduct shall summarize the factual basis for the board's disposition of
   the matter. This requirement for a summary applies to all such final orders,
   consent orders and stipulated agreements issued after the effective date of the
   Act; it has no application to any final orders, consent orders or stipulated
   agreements issued before the effective date of the Act.
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9. Such information would remain confidential in the hands of the GSPC. ORS
   192.502(10).
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10. Disclosure is expressly authorized to GSPC by ORS 676.175(3) and to the
    district attorney under certain board statutes. See, e.g., ORS 686.260 (Veterinary
    Medical Examining Board "shall lay the facts [of the investigation] before the
    district attorney); ORS 687.890 (Board of Massage Technicians "shall report to the
    proper district attorney all cases that * * * warrant criminal prosecution"). A
    board that believes its statutes require disclosure to the district attorney may

wish to confirm that interpretation with its assigned counsel.
Our conclusion that ORS 676.165(5) and 676.175(1) generally prohibit the
disclosure of confidential information to sister agencies, law enforcement
agencies and to the DEA does not mean that the boards may not use agents, such as
contract investigators, and disclose information to those agents. In this regard,
disclosure of confidential information to an assistant attorney general in the
Department of Justice as legal counsel for the board in order to obtain legal
advice would also be permissible. The boards must also comply with any relevant
federal law requiring disclosure, e.g., to the National Practitioner Data Bank, 42
USC § 11132; 45 CFR § 60.8.
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11. Of course, any of the boards subject to SB 235 could make a complaint to
    another of the boards. Since the boards are agencies and therefore are not
    "persons" under ORS 676.165, however, a complaint by another board would not
    trigger the timelines and conditions found in that statute.
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12. Some boards have a practice of soliciting information about applicants and
    extending promises of confidentiality to such informants. Boards could assure the
    informant that the board will keep the information solicited as part of the
    investigation confidential under ORS 676.165(5) and 676.175(1), with the
    understanding that the information may necessarily be disclosed to the applicant,
    as a matter of due process, in the case of a license denial. Board of Medical
    Examiners v. Buck, 192 Or 66, 232 P2d 791 (1951), 200 Or 488, 258 P2d 124 (1953),
    appeal dismissed 346 US 919 (1954); Campbell v. Board of Medical Examiners, 16 Or
    App 381, 386-8, 518 P2d 1042 (1974).
    In response to such a solicitation, the board may come into "receipt of a
    complaint" about the applicant from one of those persons. Consequently, boards may
    wish to evaluate their ability to conclude an investigation in a timely manner
    under ORS 676.165 if they have agreed to maintain the confidentiality of
    information provided by an informant and not to use such information in a
    subsequent contested case.
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13. As discussed above, information obtained as part of an investigation opened as
    a result of such notices would be subject to the nondisclosure requirements of ORS
    676.165(5) and 676.175(1).
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14. In cases in which the board lacks jurisdiction over the complaint, the
    investigator's report generally would consist of a statement that a certain
    complaint had been received on a certain date and that it was closed
    administratively due to lack of jurisdiction over the subject matter.
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15. Nor are we willing to conclude that the notice of intent to impose a
disciplinary sanction sent to a licensee should not fully comply with the
requirements of ORS 182.415(2) or fail to contain any additional information that
may be required by due process.
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16. Pursuant to ORS 192.660(3), representatives of the news media are entitled to
    attend an executive session of a public body. A hearing before a hearing officer
    is not an executive session of a public body, however, and ORS 192.660(3) does not
    apply.
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17. Although the Health Division is a public body, it is headed by a single agency
    administrator rather than a "governing body." Therefore, it is not subject to the
    Public Meetings Law.
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18. ORS 192.660(3) provides that the governing body may specify that information
    subject of the executive session not be disclosed by representatives of the news
    media. We recommend that such a directive be given to representatives of the news
    media who attend any of these executive sessions.
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19. We understand that the boards take a "straw vote" on a final order during
    executive session so that there is little possibility that a final order might be
    rejected by the board. If such a rejection were possible, we would recommend that
    when voting in open session on a final order, the board refer to the matter by
    case number, rather than by the name of the licensee or applicant. If the board
    votes to adopt the final order, the name of the licensee or applicant should then
    be disclosed.
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