When an Oregon health professional licensing board investigator also acts as the board's expert witness, what part of their report is protected from disclosure to the licensee facing discipline?
Plain-English summary
When an Oregon health professional regulatory board (medical examiners, dentistry, nursing, pharmacy) investigates a complaint and votes to issue a notice of discipline, the licensee can request the investigatory file. ORS 676.175(3) generally requires the board to hand over the file, but lists exceptions, including "reports of expert witnesses" in subsection (3)(d). The boards asked the AG: when the same person is both the board's investigator and its expert witness, what is exempt?
The Attorney General drew a clean line. Investigator's reports under ORS 676.165 (which describe the evidence collected and witness interviews) are not exempt; the legislature did not intend ORS 676.175(3)(d) to swallow that mandatory reporting. Reports made in the person's separate capacity as an expert witness, expressing professional opinions about whether the licensee met the standard of care, are exempt. When a single document combines both kinds of content, the board has to disclose the investigator portion and may withhold only the expert-opinion portion.
The opinion added a constitutional overlay. Even where ORS 676.175(3)(d) creates a statutory exemption, federal due process requires the board to disclose any expert report it intends to enter into the record at a contested case proceeding. A licensee cannot meaningfully defend without seeing the evidence the board plans to rely on.
Currency note
This opinion was issued in 2007. 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.
Background and statutory framework
The 2005 Oregon legislature amended ORS 676.175(3) (Or Laws 2005, chapter 801) to require health professional regulatory boards to disclose investigatory files to licensees facing discipline. A prior 2006 AG opinion (No. 8282) had already addressed several follow-up questions. This opinion (No. 8285) addressed the narrower issue of dual-role reports.
The statutory architecture had three layers. First, ORS 676.165 set out the investigator's role. The board assigns a person to investigate (subsection (1)); the investigator collects evidence, interviews witnesses, and prepares a report (subsection (2)); the report must describe the evidence, witness interviews, and other material considered (subsection (3)); and the file is exempt from public disclosure (subsection (5)). Second, ORS 676.175(1) extended that confidentiality more broadly. Third, ORS 676.175(3) flipped the rule for licensees facing discipline: the board "shall disclose" all information obtained in the investigation upon written request, except (a) information privileged under federal or state law, (b) information that would identify a complainant, (c) information that would identify a confidential source, and (d) reports of expert witnesses.
The AG's analysis turned on reading subsection (3) as a whole. The legislature listed four discrete exceptions; if it had wanted to exempt all investigatory reports, it would not have needed (d), and the interaction with ORS 676.165's mandatory reporting requirements would have been incoherent. By distinguishing the investigator's factual report (statutorily required, mandatorily disclosable) from the same person's expert-opinion report (statutorily exempt), the AG preserved both regimes.
The constitutional overlay drew on Spray v. Board of Medical Examiners, 50 Or App 311 (1981), and Gregg v. Racing Commission, 38 Or App 19 (1979). Federal due process under the Fourteenth Amendment guarantees that a licensee in a contested case is generally informed of the case against them. A 1998 AG opinion (49 Op Atty Gen 32) had already concluded that any board-possessed evidence the board intends to introduce must be disclosed. The 2007 opinion confirmed that ORS 676.175(3)(d) does not override that constitutional baseline.
Common questions
Q: If a board investigator is also the board's expert witness, can the board withhold their entire report?
A: No. The investigator's factual report under ORS 676.165 must be disclosed. Only the expert-opinion content is exempt under ORS 676.175(3)(d).
Q: What if the investigator files just one combined report?
A: The board must disclose the portion that fulfills ORS 676.165(2) and (3) reporting obligations and may withhold only the portion that constitutes the author's expert-witness opinions.
Q: Does the exemption in ORS 676.175(3)(d) override due process at a contested case hearing?
A: No. Even when the statutory exemption otherwise applies, the board must disclose any expert-witness report it intends to introduce at the contested case proceeding. Constitutional due process requires it.
Q: What kinds of opinions count as "expert witness" content?
A: Professional opinions on matters such as whether the licensee exercised the requisite standard of care. The opinion gave a Board of Nursing example: an investigator-RN's factual evidence file is not expert; a separate report opining on whether the licensed nurse met the nursing standard of care is.
Q: What does this mean for licensees who request their investigatory file?
A: They can expect to receive the investigator's factual record. The board may legitimately withhold expert-witness reports. But if any expert report is being used at a contested case hearing, the board must produce it then.
Q: Why does the same person act in both roles?
A: Specialty boards often draw on practitioners who can both investigate the underlying conduct and offer professional opinions on standard-of-care questions. The opinion accepts that practical reality and resolves the resulting overlap rather than forcing the board to use two separate people.
Citations and references
Statutes and constitutional provisions:
- ORS 174.010 (no insertion of omitted terms)
- ORS 676.165 (board investigator's role and reports; confidentiality from public)
- ORS 676.175 (general confidentiality; mandatory disclosure to disciplined licensees with four exceptions)
- ORS 676.175(3)(d) (expert-witness reports exempt)
- ORS 678.111(1)(b) (gross incompetence/negligence as Board of Nursing discipline ground)
- Or Laws 2005, chapter 801 (2005 amendments creating mandatory disclosure to licensees)
- U.S. Const. amend. XIV, § 1 (due process)
Cases and prior AG opinions:
- Preble v. Department of Revenue, 331 Or 320, 14 P3d 613 (2000), "shall" is mandatory
- Spray v. Board of Medical Examiners, 50 Or App 311, 624 P2d 125 (1981), licensee's right to evidence at contested case
- Gregg v. Racing Commission, 38 Or App 19, 588 P2d 1290 (1979), due process in administrative proceedings
- 50 Op Atty Gen ___ (No. 8282, April 20, 2006), prior AG opinion on the same 2005 amendments
- 49 Op Atty Gen 32 (1998), pre-amendment AG opinion on disclosure of board files for contested cases
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/2007/12/op8285.pdf
Original opinion text
December 14, 2007
No. 8285
In 2005, the legislature amended ORS 676.175(3) to impose a new duty on health professional regulatory boards (boards) to disclose investigatory information to licensees and applicants who are facing disciplinary action. Or Laws 2005, chapter 801. On April 20, 2006, we issued an opinion responding to the boards' questions about that amendment. 50 Op Atty Gen ___ (No. 8282, April 20, 2006). The Boards of Medical Examiners, Dentistry, Nursing, and Pharmacy now request additional advice about ORS 676.175 (3)(d), which exempts the "reports of expert witnesses" from the mandatory disclosure requirement. This opinion responds to that request.
QUESTION PRESENTED
To what extent, if at all, would a report by someone acting both as a board investigator and as an expert witness be exempt from disclosure under ORS 676.175(3)(d)?
SHORT ANSWER
It depends on the nature of the report. ORS 676.165(2) requires that an investigator make a report to the board, and ORS 676.165(3) lists the information that the report must contain. We conclude that the legislature did not intend for ORS 676.175(3) to exempt that information from disclosure. On the other hand, if someone acting as an investigator also makes a report in the capacity of an expert witness that is separate from the investigator report, the former would be exempt as the report of an expert witness. If a single report is comprised of both kinds of information, i.e., combines the investigator's report required under ORS 676.165 and an expert witness's report under ORS 676.175(3)(d) in one document, the board may withhold only the portion of the report resulting from the author's expert witness role and must disclose the portion of the report made pursuant to the requirements of ORS 676.165 (assuming no other exception applies).
Notwithstanding the exemption in ORS 676.175(3)(d), to comply with federal due process requirements, a board must disclose expert witness reports that it intends to enter into the record during a contested case proceeding.
DISCUSSION
When a board receives a complaint against a licensee or applicant, it must "assign one or more persons to act as investigator of the complaint." ORS 676.165(1). The investigator is directed to "collect evidence and interview witnesses and * * * make a report to the board." ORS 676.165(2). The report must describe the evidence gathered, the results of witness interviews and all other information considered in preparing the report, including any disciplinary history of the licensee or applicant with the board. ORS 676.165(3). ORS 676.165(5) exempts from public disclosure "[i]nvestigatory information obtained by an investigator and the report issued by the investigator." ORS 676.175(1) similarly directs 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 * * *." However, ORS 676.175(3) requires boards to disclose investigatory information to a licensee or applicant who is facing disciplinary action:
If a health professional regulatory board votes to issue a notice of intent to impose a disciplinary sanction, upon written request by the licensee or applicant, the board shall disclose to the licensee or applicant all information obtained by the board in the investigation of the allegations in the notice except:
(d) Reports of expert witnesses.
You inform us that it is not uncommon for someone to act as the board's investigator and as its expert witness in the same case. You ask whether a report by a person serving those dual roles is a report of an expert witness for purposes of ORS 676.175(3)(d) and, therefore, exempt from disclosure.
For the purpose of your question, we assume that the person making the report qualifies as an "expert witness" under ORS 676.175(3)(d). The first question we address is whether the legislature intended the exemption for expert witness reports set out in ORS 676.175(3)(d) to encompass the reports that investigators must provide to boards pursuant to ORS 676.165(2) and (3). The function of a board investigator, according to ORS 676.165(2), is to "collect evidence and interview witnesses and [] make a report to the board." The report must "describe the evidence gathered, the results of witness interviews and any other information considered in preparing the report of the investigator * * * [including] any disciplinary history of the licensee or applicant with the board." ORS 676.165(3). The type of information prescribed by ORS 676.165 makes clear that the purpose of those reports is to recount historical information, not express expert opinions. We conclude that the legislature did not intend the exemption for the reports of expert witnesses to encompass investigators' reports.
Moreover, reading the statute as a whole, it does not appear that the legislature intended to exempt the ORS 676.165 information in investigators' reports from disclosure to a licensee or applicant who is facing disciplinary sanction. ORS 676.165(5) expressly prohibits a board from disclosing investigative information and "the report issued by the investigator" to the public. On the other hand, ORS 676.175(3) provides that a board "shall disclose all information obtained by the board in the investigation of the allegations in the notice" to a licensee or applicant when it has voted to issue a notice of intent to impose a disciplinary sanction and the licensee or applicant has requested the information. (Emphasis added.) The term "shall" expresses that which is mandatory, Preble v. Dep't of Revenue, 331 Or 320, 324, 14 P3d 613 (2000), and the meaning of "all" is self-evident. ORS 676.175(3)(a) through (d) specify certain exemptions from mandatory disclosure, and investigator's reports are not among them. In construing statutes, we may not insert what has been omitted. ORS 174.010. Therefore, the legislature appears to have intended for boards to disclose the ORS 676.165 information in investigative reports to licensees or applicants facing disciplinary sanction. We conclude that the exemption in ORS 676.175(3)(d) does not encompass information in reports that investigators must provide to boards pursuant to ORS 676.165(2) and (3).
On the other hand, reports made by investigators for purposes other than to recount the evidence gathered pursuant to ORS 676.165(3) could qualify as expert witness's reports if they are made in the person's capacity as an expert witness. For example, a Board of Nursing investigator who is a registered nurse might investigate complaints against a registered nurse licensee that include "[g]ross incompetence or gross negligence of the licensee in the practice of nursing at the level for which the licensee is licensed." ORS 678.111(1)(b). The investigator then files two separate reports: the first describes the evidence gathered pursuant to ORS 676.165(3); and the second focuses solely on, and expresses an opinion about, whether the licensee exercised the requisite standard of care. The latter would be exempt because it was made in the investigator's capacity as an expert witness. The fact that the person who made the report is a board investigator would not change that conclusion.
Alternatively, the investigator could file one report serving both purposes: (1) to fulfill the investigator's obligations under ORS 676.165(2) and (3) by describing the evidence gathered; and (2) to express an opinion about whether the licensee exercised the requisite standard of care. In that event, only the statements or accounts made in the author's capacity as an expert witness would qualify for exemption because only those statements would be the "reports of expert witnesses." Boards would have to disclose information in the report that was provided in the person's capacity as an investigator (assuming no other exception applied).
DUE PROCESS
Finally, notwithstanding the disclosure exemptions provided by ORS 676.175(3)(d), constitutional due process requires that, in a contested case, a licensee or applicant is entitled to be generally informed of the case against them. See US Const Am XIV, § 1; Spray v. Board of Medical Examiners, 50 Or App 311, 624 P2d 125, modified by 51 Or App 773, 627 P2d 25 (1981); Gregg v. Racing Commission, 38 Or App 19, 26, 588 P2d 1290, rev den 286 Or 637 (1979). In practice, the due process requirement has been interpreted to mean that all reports, documents, and information in a board's possession that it intends to rely on during a contested case proceeding must be disclosed to the licensee or applicant during the contested case process. See 49 Op Atty Gen 32, 61 (1998) (so stating); Spray, 50 Or App at 330 n14 (stating that "if any of the Board's investigatory files were introduced as evidence, petitioner was entitled to discover that evidence."). Therefore, notwithstanding the exemption in ORS 676.175(3)(d), a board must disclose reports that it intends to rely on during a contested case proceeding in order to comply with federal due process requirements.
CONCLUSION
We summarize our conclusions as follows. "Reports of expert witnesses" for purposes of ORS 676.175(3)(d) do not include investigator's reports required by ORS 676.165(2) and (3), but can encompass reports made for the purpose of providing expert opinions on a particular matter in the case by investigators who qualify as expert witnesses. If an investigator's report contains the information required by ORS 676.165(3) and also contains statements that meet the criteria for an expert witness's report, only the latter are exempt from disclosure under ORS 676.175(3)(d). Notwithstanding the exemption in ORS 676.175(3)(d), a board must disclose reports that it intends to rely on during a contested case proceeding in order to comply with federal due process requirements.
HARDY MYERS
Attorney General
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