Wang v. Board of Massage Therapists

491

Argued and submitted September 28; affirmed on appeal, on cross-appeal,

portion of judgment dismissing second claim reversed and remanded for entry

of judgment on petition for judicial review affirming board’s order

October 26, 2022

Minfang WANG,

Plaintiff-Appellant

Cross-Respondent,

v.

OREGON BOARD OF

MASSAGE THERAPISTS,

Defendant-Respondent

Cross-Appellant.

Multnomah County Circuit Court

20CV32742; A176721

519 P3d 1281

Plaintiff appeals from a judgment that dismissed her petition for judicial

review challenging an order of the board, which refused plaintiff’s request to

disclose the investigative records that led the board to deny her application for

licensure. Plaintiff argues that she was entitled to the report pursuant to ORS

676.175(3), which provides: “If a health professional regulatory board votes to

issue a notice of intent to impose a disciplinary sanction, * * * the board shall

disclose to the licensee or applicant all information obtained by the board in the

investigation of the allegations in the notice.” Held: The disclosure requirement

applies only to “applicants” or “licensees” at the time of the records request.

Because plaintiff had withdrawn her licensure application, she was no longer an

“applicant” when she requested the report. The trial court correctly concluded

that the board was not required to disclose the report, but the appropriate dispo-

sition was to affirm the agency’s order.

Affirmed on appeal; on cross-appeal, portion of judgment dismissing second

claim reversed and remanded for entry of judgment on petition for judicial review

affirming board’s order.

Kelly Skye, Judge.

Thomas R. Benke argued the cause and filed the briefs

for appellant-cross-respondent.

Denise G. Fjordbeck, Assistant Attorney General, argued

the cause for respondent-cross-appellant. On the brief were

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Stacy M. Chaffin, Assistant Attorney

General.

492 Wang v. Board of Massage Therapists

Before Tookey, Presiding Judge, and Egan, Judge, and

Kamins, Judge.

KAMINS, J.

Affirmed on appeal; on cross-appeal, portion of judgment

dismissing second claim reversed and remanded for entry

of judgment on petition for judicial review affirming board’s

order.

Cite as 322 Or App 491 (2022) 493

KAMINS, J.

The trial court entered a judgment dismissing

plaintiff’s complaint against the Oregon Board of Massage

Therapists (board), which asserted two “claims” for relief

stemming from the denial of her application for a license.

The first claim arose under the Declaratory Judgment

Act; the second “claim” was actually a petition for judicial

review challenging an order of the board refusing plaintiff’s

request to disclose the investigative records that led the

board to deny her application for licensure. The trial court

dismissed both claims, and plaintiff appeals. The board has

filed a cross-appeal, contending that the trial court’s dis-

position on the petition for judicial review was incorrect

because, rather than dismissing that “claim,” the board’s

order should simply be affirmed. We affirm the trial court’s

dismissal of the first claim, because it sought relief that was

only available through an administrative proceeding under

the Administrative Procedures Act (APA). On the second

claim, we agree with the trial court that the board correctly

held that the records were exempt from disclosure; but the

board is correct that its order should be affirmed. On the

cross-appeal, we therefore reverse that portion of the judg-

ment dismissing the petition for judicial review and remand

for a judgment affirming the board’s order.

We recite the facts as alleged in the complaint in

the light most favorable to plaintiff, the nonmoving party.

Chang v. Chun, 305 Or App 144, 147, 470 P3d 410 (2020). In

2019, the board assessed a civil penalty against plaintiff for

practicing massage without a license, based on the report

of a board investigator. Plaintiff subsequently completed

the training requirements needed to qualify for a massage

license and applied for a license from the board. The board

issued a notice of proposed action denying her application

because of the findings of the 2019 investigation. Plaintiff

challenged that notice by requesting a contested case hear-

ing. In response, the board sent a letter alerting plaintiff

to the fact that “the Contested Case Hearing process gener-

ally costs $15,000 to $25,000.” Plaintiff responded that she

could not afford to pay that amount and asked the board for

advice. The board recommended that plaintiff obtain legal

advice and described a few options, including withdrawal of

494 Wang v. Board of Massage Therapists

the license application so that she would “avoid the contested

case hearing process and associated fees and costs that may

be assessed to you.” Plaintiff withdrew her hearing request.

She subsequently made a public records request to the board

for the report and materials from the 2019 investigation,

which the board denied. She then filed the instant case.

Plaintiff’s first claim sought a declaration that “the

board does not have the authority to collect * * * the board’s

fees and costs in defending [an] application denial or other

disciplinary sanction” and an order that the board reopen

plaintiff’s case and allow her “to continue her request for

hearing contesting the board’s denial of her application for

licensure.” As the trial court recognized, because she could

have sought the relief in a contested case proceeding before

the board, plaintiff must seek that relief directly from the

board rather than the trial court. See Salibello v. Board

of Optometry, 276 Or App 363, 367, 367 P3d 932 (2016) (“A

court lacks subject matter jurisdiction under the Uniform

Declaratory Judgments Act if some other exclusive rem-

edy exists to address the dispute” and “[w]hen the dispute

at issue involves an agency’s action, or refusal to act, the

review provisions of the APA provide the sole and exclusive

means of obtaining judicial review, and an action for declara-

tory relief is not available.”). The reasons for the requirement

that a petitioner proceed through the agency process rather

than file a civil lawsuit—often called “APA exclusivity”—

“are many, but of greatest importance is a concern that the

administrative decision-making process should not be pre-

maturely interrupted, especially where agency expertise

will play a large role in any decision on the merits.” Bay River

v. Envir. Quality Comm., 26 Or App 717, 721-22, 554 P2d 620

(1976) (citing McKart v. United States, 395 US 185, 89 S Ct

1657, 23 L Ed 2d 194 (1969)); see also Ashland Drilling, Inc. v.

Jackson County, 168 Or App 624, 630, 4 P3d 748, rev den, 331 Or

429 (2000) (recognizing that APA exclusivity serves the same

purposes as the exhaustion requirement, because “the APA

establishes a comprehensive pattern for the judicial review

of administrative decisions” (internal citation omitted)).1

1

We express no opinion on the propriety of the board’s apparent practice of

informing license applicants that pursuing a contested case hearing could cost

the applicant $15,000 to $25,000.

Cite as 322 Or App 491 (2022) 495

Thus, we agree with the trial court that plaintiff’s remedy,

if any, was through the administrative process rather than

through a declaratory judgment action.

Plaintiff’s second “claim” sought judicial review of a

board order denying her request for the 2019 investigative

report. The board denied the request, because it concluded

that the report is confidential and exempt from public dis-

closure. See ORS 676.165(5) (“Investigatory information

obtained by an investigator and the report issued by the

investigator shall be exempt from public disclosure.”); ORS

676.175(1); ORS 687.081(9). Plaintiff argued that disclosure

was required under a statute relating to the processing of

complaints against health professionals. ORS 676.175(3)

provides: “If a health professional regulatory board votes to

issue a notice of intent to impose a disciplinary sanction,

* * * the board shall disclose to the licensee or applicant all

information obtained by the board in the investigation of the

allegations in the notice.” We assume for the sake of this dis-

cussion that the board’s order denying plaintiff’s request to

disclose the investigative record was an order in other than a

contested case that would be subject to review in the circuit

court. ORS 183.484 (providing for judicial review of orders

in other than a contested case). Plaintiff contends that she

had applied for a license and therefore was an “applicant”

entitled to the investigation report about her. The board

responds that, because plaintiff withdrew her application

for licensure, she was no longer an “applicant” for purposes

of the statute. We agree with the board.

A construction of ORS 676.175 confirms that the

disclosure requirement applies to a person who is involved

in an ongoing disciplinary proceeding at the time of the

records request. We begin with the text of the statute. PGE

v. Bureau of Labor Industries, 317 Or 606, 610, 859 P2d 1143

(1993) (Generally, “the text of the statutory provision itself

is the starting point for interpretation and is the best evi-

dence of the legislature’s intent.”). ORS 676.175(1) provides:

“A health professional regulatory board shall keep

confidential and not disclose to the public any informa-

tion obtained by the board as part of an investigation of

a licensee or applicant, including complaints concerning

496 Wang v. Board of Massage Therapists

licensee or applicant conduct and information permitting

the identification of complainants, licensees or applicants.

However, the board may disclose information obtained

in the course of an investigation of a licensee or appli-

cant to the extent necessary to conduct a full and proper

investigation.”

ORS 676.175(3) provides an exception, allowing for disclo-

sure of investigative reports to an “applicant” in a limited

circumstance—if the board gives notice of an intent to

impose a disciplinary sanction, then an “applicant” may

obtain the report.2 As “applicant” is not defined in the stat-

ute, we assume that the legislature intended to give the

word its “plain, natural, and ordinary meaning.” State v.

Delaurent, 320 Or App 191, 195, 514 P3d 113, rev den, 370

Or 303 (2022). An “applicant” is defined as “one who applies

for something : one who makes a usually formal request

especially for something of benefit to himself” such as a job

or a scholarship. Websters Third New Int’l Dictionary 105

(unabridged ed 2002). The concept is in the present tense:

Someone who “applies” is a current candidate for a job, a

scholarship, or in this case, a license. Nothing in the statu-

tory text supports a deviation from the plain meaning of the

word “applicant” that would suggest a legislative intent that

the status of a person as an “applicant” continue indefinitely,

such that the board would be required to disclose otherwise

confidential records to former applicants or licensees not

currently involved in an administrative proceeding.

On the contrary, the statute prioritizes maintain-

ing confidentiality. ORS 676.175(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.”); ORS 676.175

(3)(a) - (d), (4) (preventing licensees and applicants from

obtaining certain types of information, such as the iden-

tity of witnesses, and only allowing the further disclosure

of confidential information “to the extent necessary to pre-

pare for a hearing”). The disclosure requirement is thus a

limited exception to the general rule of confidentiality that

2

The board does not argue, and thus we do not address, whether the notice

of proposed action denying plaintiff’s license application constituted a “notice of

proposed sanction.”

Cite as 322 Or App 491 (2022) 497

exists to allow current applicants or licensees to prepare for

disciplinary proceedings that affect them. As it is written,

the statute reflects a legislative intent to prohibit access to

the board’s investigative documents to all but current appli-

cants and licensees. As a result, we conclude that, unless the

person subject to investigation is an applicant or licensee

subject to discipline, they cannot obtain the documents that

implicate them.

Here, because the board had denied plaintiff’s appli-

cation and she had discontinued an effort to seek adminis-

trative review of that decision, she was no longer an “appli-

cant” when she requested the investigative report. The trial

court correctly concluded that the board was not required to

disclose the report under ORS 676.175(3).

Because, however, the second claim sought judicial

review of a final agency order, the appropriate disposition

was to affirm the agency’s order. See ORS 183.484(5)(a)

(“The court may affirm, reverse or remand the order.”). We

therefore reverse the portion of the judgment dismissing the

second claim and remand the case to the trial court with

instructions to enter a judgment affirming the board’s order.

See Hoekstre v. DLCD, 249 Or App 626, 638, 278 P3d 123,

rev den, 352 Or 377 (2012) (reaching the same result).

Affirmed on appeal; on cross-appeal, portion of

judgment dismissing second claim reversed and remanded

for entry of judgment on petition for judicial review affirm-

ing board’s order.