10/6/2023 11:52 AM

23CV23025

4 IN THE CIRCUIT COURT OF THE STATE OF OREGON

5 FOR THE COUNTY OF MULTNOMAH

6 OREGON MEDICAL BOARD,
7 Plaintiff, Case No. 23CV23025
8 v. DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
9 KING BROADCASTING COMPANY dba
KGW; JOHN TIERNEY,
10
Defendants.
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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

4857-0509-6822v.4 0046890-000020 DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 TABLE OF CONTENTS
Page
2
UTCR 5.050 INFORMATION ........................................................................................................1
3
MOTION..........................................................................................................................................1
4
POINTS AND AUTHORITIES .......................................................................................................1
5
I. INTRODUCTION ...............................................................................................................1
6
II. FACTUAL AND PROCEDURAL BACKGROUND .......................................................2
7
A. Dr. Baldwin’s Patients Allege that He Engaged in Sexual Misconduct. .................2
8
B. OMB Investigates the Allegations Against Dr. Baldwin and Issues a Letter
9 of Concern. ...............................................................................................................3
10 C. OMB Denies KGW’s Public Records Request for the Letter of Concern
and Related Records. ...............................................................................................4
11
D. The Attorney General Orders OMB to Disclose the Letter of Concern and
12 Certain Related Records. .........................................................................................4
13 E. OMB Refuses to Comply with the Order and Sues KGW and Tierney. .................5
14 III. LEGAL STANDARD ........................................................................................................5
15 IV. ARGUMENT ......................................................................................................................5
16 A. The Public Records Law Requires Disclosure of OMB Records Where the
Public Interest in Disclosure Outweighs Other Interests in Nondisclosure. ............5
17
B. The Public Records Law Requires Disclosure of the Requested Records...............6
18
1. The Letter of Concern Is Subject to Disclosure. ..........................................6
19
2. The Mandatory Reports Are Subject to Disclosure. ..................................10
20
V. CONCLUSION .................................................................................................................11
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Page i – DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

4857-0509-6822v.4 0046890-000020 DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 TABLE OF AUTHORITIES
1
Page(s)
2

3 Cases

4 Guard Pub. Co. v. Lane Cty. Sch. Dist.,

310 Or 32, 791 P2d 854 (1990) .................................................................................................6
5
Jones v. Gen. Motors Corp.,
6 325 Or 404, 939 P2d 608 (1997) ...............................................................................................5
7 Jordan v. Motor Vehicles Div., State of Or.,
8
308 Or 433, 781 P2d 1203 (1989) .............................................................................................5

9 Statutes

10 ORS 192.314(1) ...............................................................................................................................5

11 ORS 192.338 ....................................................................................................................................5

12 ORS 192.338 ....................................................................................................................................6

13 ORS 192.345 ....................................................................................................................................5
14 ORS 192.355 ....................................................................................................................................5
15
ORS 192.401 ................................................................................................................................6, 7
16
ORS 676.165 ............................................................................................................................6, 7, 9
17
ORS 676.175 ................................................................................................................................6, 7
18
ORS 677.265 ....................................................................................................................................2
19
ORS 677.415 ....................................................................................................................................4
20
Rules
21
ORCP 47 ......................................................................................................................................1, 5
22

23

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Page ii – DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

4857-0509-6822v.4 0046890-000020 DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 UTCR 5.050 INFORMATION

2 In accordance with UTCR 5.050, Defendants King Broadcasting Company dba KGW

3 (“KGW”) and John Tierney (collectively, “Defendants”) request oral argument on this motion.

4 Defendants estimate that 1 hour is required for oral argument. Defendants request official court

5 reporting services.

6 MOTION

7 Defendants respectfully move for summary judgment dismissing Plaintiff Oregon

8 Medical Board’s (“OMB”) claims, entering judgment on KGW’s counterclaims, enjoining OMB
9 from withholding the requested records, and ordering the disclosure of the requested records to

10 Defendants. ORCP 47.

11 This motion is supported by the court file, the Joint Stipulated Facts, the Declaration of

12 Chris Swift filed herewith, and the following Memorandum of Points and Authorities.

13 POINTS AND AUTHORITIES

14 I. INTRODUCTION
15 OMB filed this suit against to prevent KGW from obtaining public records related to the

16 investigation of a doctor credibly accused of engaging in sexual misconduct with at least eight of

17 his patients over a five-year period. These records consist of (1) the mandatory reports that
18 triggered OMB’s investigation, and (2) the “Letter of Concern” that OMB issued to the doctor

19 after concluding its investigation. Because OMB ultimately decided to issue a Letter of Concern

20 rather than take any disciplinary action against the doctor, OMB refused to disclose these records

21 in response to KGW’s request. After reviewing the records, however, the Attorney General

22 determined the clear and convincing evidence showed that disclosing the requested records was

23 in the public interest and ordered OMB to release them (the “Order”).1 Rather than comply with

24
1
25 A copy of the Order is attached as Exhibit 1 to the Declaration of Chris Swift. The opinion is
also publicly available at:
26 https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll2/id/2478/rec/13.

Page 1 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 the Order, OMB brought this lawsuit against KGW. Because the Attorney General correctly

2 held that the public interest requires release of the records, the Court should enter summary

3 judgment in Defendants’ favor and order OMB to release the requested records.

4 II. FACTUAL AND PROCEDURAL BACKGROUND

5 A. Dr. Baldwin’s Patients Allege that He Engaged in Sexual Misconduct.

6 Plaintiff OMB is a state agency responsible for regulating the practice of medicine in the

7 state of Oregon. Stip. ¶ 1. Among other functions, OMB has a duty to license and supervise

8 medical providers to ensure that they are qualified and competent to practice medicine. See, e.g.,
9 ORS 677.265 (describing OMB’s licensing and enforcement powers).

10 Dr. Christopher Baldwin is a provider that OMB deemed fit to practice medicine in the

11 state of Oregon. Swift Decl., Ex. 2. In 2020, five patients sued Dr. Baldwin alleging that he had

12 touched and examined them in an inappropriate and medically unnecessary manner—sometimes

13 repeatedly—since 2015. Swift Decl., Ex. 3 ¶¶ 7-11; Order at 3. Three more of Dr. Baldwin’s

14 patients then came forward and joined the lawsuit. Swift Decl. Ex. 4 ¶¶ 12-14. All eight of the

15 plaintiffs were employed by a public school district in positions requiring a commercial driver’s

16 license. Id. ¶ 4; Swift Decl. Ex. 5 at 1. To maintain their licenses, all of the plaintiffs were

17 required to undergo annual physical exams performed by a certified medical examiner.2 Swift
18 Decl. Ex. 4 ¶¶ 4; Swift Decl. Ex. 5 at 1. For years, Dr. Baldwin performed these physicals for

19 the plaintiffs and other district employees. Swift Decl. Ex. 4 ¶¶ 7-14. And, for years, according

20 to the plaintiffs’ allegations and sworn testimony, he used these government-mandated physicals

21 as an opportunity to sexually harass and abuse his patients.

22 Each of the plaintiffs reported a consistent pattern: during the examinations, Dr. Baldwin

23 would abruptly grab the collar of the patient’s shirt and pull it forward in order to stare at her

24 breasts without her consent or any medical justification. Id. Multiple plaintiffs also reported that
25
2
The Oregon Department of Transportation’s medical examination requirements are described
26 on its website: https://www.oregon.gov/odot/dmv/pages/driverid/cdlmedexinfo.aspx

Page 2 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 Dr. Baldwin inappropriately touched their breasts or pubic area without any medical basis. Id. ¶¶

2 7-8, 10, 14. Because these annual physicals were a condition of the plaintiffs’ employment and

3 licensure, some plaintiffs reported suffering this abuse year after year—five years in a row for

4 one plaintiff. Id. ¶ 12. Several plaintiffs explained that they feared they would lose their license

5 (and, as a result, their job) if they complained about Dr. Baldwin’s behavior. Id. ¶¶ 8-10, 12.

6 During discovery, the plaintiffs discovered that other patients had reported similar

7 misconduct to Dr. Baldwin’s employer. Swift Decl. Ex. 5 at 8-9. As described in the plaintiffs’

8 briefing:
9 One woman alleged that Dr. Baldwin had leered down her shirt,
stared [at] her breasts, and that he had been sweating and breathing
10 heavily during his examination of her. The other woman alleged
that Dr. Baldwin was sitting so close to her on the examination
11 table that their shoulders touched, that he told her “it would be
weird if I had you take your shirt off,” and that he acted so
12 unprofessionally that the complainant stated she would not go to
[the facility] again if she had another work injury.
13
Swift Decl. Ex. 5 at 9 (internal citations omitted). Dr. Baldwin’s supervisor testified that he
14
discussed these complaints with Dr. Baldwin, but that no further investigation was conducted
15
and no disciplinary action was taken against Dr. Baldwin. Id.
16
Eventually, Dr. Baldwin settled these claims, and all of the parties are now bound by a
17
nondisclosure agreement that prevents them from discussing the case. See Order at 3.
18
B. OMB Investigates the Allegations Against Dr. Baldwin and Issues a Letter of
19 Concern.
20 Pursuant to 677.415(4)-(5), claims against OMB-licensed physicians must be reported to

21 OMB. Accordingly, Dr. Baldwin and his (now former) employer reported the claims against

22 him to OMB, triggering an investigation of his alleged misconduct. See Order at 6. OMB

23 engaged a third-party investigator to conduct an inquiry into the allegations against Dr. Baldwin

24 and prepare an investigative report. Id. at 2-3. After receiving the investigator’s report and
25 recommendations, OMB declined to take disciplinary action against Dr. Baldwin. See id. at 5;

26 Compl. ¶ 26 (describing procedure when OMB does not find grounds for discipline). Instead,

Page 3 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 OMB issued a “Letter of Concern” to Dr. Baldwin that set forth the investigator’s

2 recommendations regarding Dr. Baldwin’s conduct. Order at 2; Compl. ¶ 26 (“[OMB] may also,

3 at its discretion, issue a letter of concern. Letters of concern are intended to provide feedback to

4 the licensee and may include recommendations for actions the licensee might take to improve

5 patient care.”).

6 During OMB’s investigation, Dr. Baldwin moved to Arizona and his Oregon medical

7 license became inactive. Swift Decl., Ex. 2; Stip. ¶ 5. However, Dr. Baldwin remains licensed

8 to practice medicine in Arizona. Swift Decl., Ex. 6; Stip. ¶ 5.

9 C. OMB Denies KGW’s Public Records Request for the Letter of Concern and
Related Records.
10
On March 7, 2023, KGW submitted a letter to OMB (“KGW’s Request”) requesting
11
records related to the investigation of Dr. Baldwin, including the Letter of Concern. Stip. ¶ 5.
12
On April 13, 2023, OMB denied KGW’s Request, arguing that if the requested records existed,
13
they were exempt from disclosure. Stip. ¶ 6.
14
D. The Attorney General Orders OMB to Disclose the Letter of Concern and
15 Certain Related Records.
16 After OMB denied KGW’s Request, KGW sought review by the Attorney General. Stip.

17 ¶ 7. On May 1, 2023, Defendant John Tierney, an Assistant News Director for KGW, submitted
18 a petition to the Attorney General requesting disclosure of the Letter of Concern and OMB’s

19 records related to the letter. Stip. ¶¶ 4, 7; Order at 1. Dr. Baldwin objected to KGW’s petition in

20 a letter submitted to the Attorney General on May 10, 2023. Stip. ¶ 8. KGW replied to Dr.

21 Baldwin’s letter two days later. Stip. ¶ 9.

22 On May 25, 2023, the Attorney General issued the Order, which granted KGW’s petition

23 in part and denied it in part. Stip. ¶ 10; Order at 1. Specifically, the Order required OMB to

24 “provide Mr. Tierney with a copy of the Letter of Concern and its attachment” and to disclose
25 “copies of the mandatory reports submitted to the Board under ORS 677.415.” Stip. ¶ 10; Order

26 at 6. The Order concluded that the remaining investigative records were not subject to disclosure

Page 4 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 because they “largely consist of personal health information pertaining to Dr. Baldwin and the

2 patients who alleged misconduct.” Order at 6. KGW does not challenge the Attorney General’s

3 ruling as to these records.

4 E. OMB Refuses to Comply with the Order and Sues KGW and Tierney.
5 Despite the Attorney General’s conclusion that the Letter of Concern and the mandatory

6 reports are subject to disclosure under the Public Records Law, OMB continued to refuse to

7 release these public records. Instead, OMB (not Dr. Baldwin) sued Defendants. Defendants now

8 move the Court to enter summary judgment against OMB’s claims, grant summary judgment on
9 KGW’s counter-claims, affirm the Attorney General’s Order, and order OMB to release the

10 records it has improperly withheld from the public.

11 III. LEGAL STANDARD

12 Summary judgment is appropriate where “the pleadings, depositions, affidavits,

13 declarations and admissions on file show that there is no genuine issue as to any material fact

14 and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C. No genuine

15 issue as to a material fact exists if, based upon the record before the court viewed in a manner

16 most favorable to the adverse party, no objectively reasonable juror could return a verdict for the

17 adverse party. ORCP 47 C; Jones v. Gen. Motors Corp., 325 Or 404, 407, 939 P2d 608 (1997).
18 IV. ARGUMENT
19 A. The Public Records Law Requires Disclosure of OMB Records Where the
Public Interest in Disclosure Outweighs Other Interests in Nondisclosure.
20
Oregon’s Public Records Law is a disclosure law. Oregon has a “strong and enduring
21
policy that public records and governmental activities be open to the public.” Jordan v. Motor
22
Vehicles Div., State of Or., 308 Or 433, 438, 781 P2d 1203 (1989). Under the Public Records
23
Law, “[e]very person has a right to inspect any public record of a public body in this state, except
24
as otherwise expressly provided by ORS 192.338, 192.345 and 192.355.” ORS 192.314(1).
25
Because the Public Records Law favors access to governmental records, “disclosure is the rule”
26

Page 5 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 and “[e]xemptions from disclosure are to be narrowly construed.” Guard Pub. Co. v. Lane Cty.

2 Sch. Dist., 310 Or 32, 37, 791 P2d 854 (1990). Additionally, even where a public record

3 contains some material that is exempt from disclosure, the agency must separate and disclose all

4 nonexempt material contained in that record. ORS 192.338.

5 Additional rules apply to certain OMB records. ORS 676.165 creates a Public Records

6 Law exemption for “[i]nvestigatory information obtained by an investigator and the report issued

7 by the investigator * * *.” ORS 676.165(5) (emphasis added). Similarly, ORS 676.175 limits

8 the disclosure of “information obtained as part of an investigation of an applicant or licensee,

9 including complaints concerning licensee or applicant conduct and information permitting the

10 identification of complainants, licensees or applicants.” ORS 676.175(1)-(2) (emphasis added).

11 Under ORS 192.401, the person seeking disclosure of records (or portions thereof) covered by

12 these statutes has “the burden of demonstrating by clear and convincing evidence that the public

13 interest in disclosure outweighs other interest in nondisclosure, including but not limited to the

14 public interest in nondisclosure.” ORS 192.401(3)(a).

15 B. The Public Records Law Requires Disclosure of the Requested Records.

16 The Attorney General correctly concluded that the public interest requires disclosure of

17 the Letter of Concern issued to Dr. Baldwin and the mandatory reports submitted to OMB
18 regarding his alleged misconduct. As explained above, KGW does not seek disclosure of any

19 other records related to OMB’s investigation of the allegations against Dr. Baldwin, including

20 “the investigator’s report, interview summaries, patient medical records, [or] an independent

21 fitness assessment.” Order at 3. Rather, KGW only requests the specific public records that the

22 Attorney General has already reviewed and found to be subject to disclosure under the Public

23 Records Law. The Court should compel OMB to comply with the Public Records Law and

24 release these records.

25 1. The Letter of Concern Is Subject to Disclosure.
26 OMB has no basis for withholding the Letter of Concern, and the public interest in

Page 6 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 disclosure heavily outweighs any reason OMB has for seeking to shield the letter and its

2 attachment from the public.3

3 ORS 676.165 and 676.175 apply to information “obtained” as part of OMB’s

4 investigation of a licensee. Where, as here, OMB records contain information that does not fall

5 within the scope of these statutes, that information is not subject to the “clear and convincing”

6 standard. According to the Order, the Letter of Concern is a one-page document OMB created

7 describing the fact “that a third party conducted a review in connection with this matter and

8 based on that review made three specific recommendations,” which are set forth in the letter.
9 Order at 2. OMB “acknowledges that the letter itself was not ‘obtained’ as part of its

10 investigation,” and the Order concluded that only some of the information contained in the letter

11 is “information obtained by [OMB] during its investigation.” Id. Additionally, the letter is

12 accompanied by “a one-page attachment addressed to Dr. Baldwin,” which “was not obtained by

13 [OMB] in the course of its investigation, nor does it appear to contain any information obtained

14 by [OMB] during the investigation.” Id. at 3. As such, the attachment and portions of the letter

15 are “not confidential or exempt under ORS 676.165 or 676.175,” and those statutes are not “an

16 appropriate basis for withholding the letter in its entirety, given the duty to separate and disclose

17 nonexempt material.” Id. at 3 n 2 (citing ORS 192.338). OMB’s reliance on these statutes to
18 withhold the attachment and the portions of the letter that do not reveal information obtained

19 during the investigation is therefore misplaced. See Compl. ¶ 28.

20 But even if ORS 676.165 or 676.175 applied (or apply to parts of the letter), the letter is

21 subject to disclosure because the public interest vastly outweighs any countervailing interest.

22 ORS 192.401(3)(a). Eight of Dr. Baldwin’s patients testified under oath that he engaged in

23
3
Despite the AG inviting Dr. Baldwin to appeal its order, he has not done so. As discussed
24 below, the allegations against Dr. Baldwin are a matter of public record, as is the fact that OMB
investigated those allegations and issued a Letter of Concern. Given that the requested records
25 do not contain personal health information about Dr. Baldwin and he has chosen not to
participate in these proceedings, any legitimate interest he has in opposing the disclosure of the
26 requested records is negligible.

Page 7 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 sexual misconduct while performing examinations that he was certified by the government to

2 perform and that the patients were required by the government to undergo. Those patients also

3 uncovered evidence indicating that Dr. Baldwin had subjected others to similar abuse, and that

4 Dr. Baldwin’s employer failed to take any significant action to prevent further misconduct.

5 Swift Decl. Ex. 5 at 8-9. Yet, Dr. Baldwin continues to hold a license to practice medicine in

6 Arizona—and, he could return to Oregon and reactivate his OMB-issued license at any time.4

7 As the Attorney General stated, “multiple consistent allegations that a licensed physician has

8 committed sexual misconduct with patients implicate a significant public interest.” Order at 5.
9 These publicly available facts raise serious questions regarding Dr. Baldwin’s conduct,

10 and the public has a compelling interest in understanding what steps OMB took to ensure the

11 safety of Dr. Baldwin’s patients. So long as the Letter of Concern is withheld, all the public

12 knows is that at least eight patients testified under oath that they were abused by Dr. Baldwin—

13 and OMB responded by sending Dr. Baldwin a two-page, non-disciplinary letter. In the

14 Attorney General’s view, the public interest therefore strongly supports disclosing the entire

15 Letter of Concern, as it “will serve to demonstrate how seriously the Board took the matter by

16 disclosing one of the steps that it took, without disclosing so much of the substance of the

17 Board’s investigation as to substantially undermine the general rule of confidentiality adopted by

18 the legislative assembly in this context.” Id. at 2-3. Alternatively, some members of the public

19 may review the Letter of Concern and conclude that OMB failed to take sufficient steps to

20 protect the public from a doctor who has been credibly accused of misconduct by numerous

21 patients. Either way, the public interest overwhelmingly favors disclosing records that will allow

22 the public to make informed decisions regarding their own healthcare—and to determine whether

23

24
4
Oregon medical licenses become invalid when the licensee leaves the state and ceases to
25 practice in Oregon. Upon returning to Oregon, the licensee may reactivate his license.
Requirements for reactivation are set forth on OMB’s website:
26 https://www.oregon.gov/omb/Licensing/Pages/Physician-Reactivation.aspx

Page 8 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 the government agency responsible for protecting their health and safety acted appropriately in

2 this concerning case.

3 This is particularly true because the generic interests in confidentiality that underlie ORS

4 676.165 or 676.175 have little relevance here. The interests identified by OMB below included:

5 1. The interest of licensees in being protected from embarrassment,

particularly with respect to complaints that do not have merit.
6
2. The interest of complainants and witnesses in avoiding
7 retaliation or unwanted attention, particularly with respect to
matters concerning medical treatment.
8
3. The public interest in encouraging complaints and frank
9 disclosures to the Board.
10 Order at 4. None of these interests outweigh the public interest in disclosure in this case.

11 First, the allegations against Dr. Baldwin are already in the public record, and there is

12 no evidence to indicate that those allegations lack merit. To the contrary, they are supported by

13 the consistent, sworn testimony of eight plaintiffs and corroborating evidence from yet more

14 patients. To the extent the Letter of Concern provides additional support for those allegations,

15 any embarrassment caused would not be due to unmeritorious complaints. And if the letter

16 provides exculpatory information, then its disclosure would protect Dr. Baldwin from the

17 allegations that are already in the public domain.

18 Second, with respect to the complainants’ privacy, the Order indicates that the letter does

19 not identify them, and, even if it did, KGW would not object to redacting their names and other

20 personally identifiable information.

21 Third, the Attorney General ruled that disclosing the letter would be “unlikely” to “chill

22 third parties from objectively performing similar reviews in the future, or from making such

23 recommendations as they find appropriate.” Order at 2. The statutory scheme contemplates that

24 certain OMB investigatory records may be disclosed. OMB cannot explain why complying with
25 that scheme here would cause OMB to fail to fulfill its duty to issue necessary recommendations

26 or letters of concern in the future. Nor is disclosing the letter likely to deter future reports of

Page 9 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 physician misconduct—just the opposite, in fact. If, as the Attorney General believes, releasing

2 the letter would demonstrate OMB’s diligent efforts to investigate patient complaints and prevent

3 physician misconduct, then disclosure would encourage meritorious complaints.

4 Accordingly, the Letter of Concern, including its attachment, should be disclosed.

5 2. The Mandatory Reports Are Subject to Disclosure.

6 The same is true for the mandatory reports submitted to OMB after Dr. Baldwin was

7 sued. The Attorney General held that clear and convincing evidence showed that the public

8 interest favored disclosure of these records:

9 The Board’s investigation was prompted by mandatory reports that
Dr. Baldwin and his previous employer submitted to the Board
10 pursuant to ORS 677.415. Under ORS 677.425, each of those
reports is “confidential as provided under ORS 676.175.” After
11 reviewing the reports, one of which includes a copy of the civil
complaint against Dr. Baldwin, we are satisfied that the public
12 interest requires their disclosure. Unlike the bulk of the
investigatory records, those mandatory reports do not contain any
13 individually identifiable health information that goes beyond what
was voluntarily disclosed by the plaintiffs who filed suit against
14 Dr. Baldwin. Nor can we conclude that withholding them will
meaningfully advance any of the other interests in nondisclosure
15 identified above; i.e., protecting Dr. Baldwin from embarrassment;
avoiding retaliation against complainants and witnesses; or
16 encouraging complaints and frank disclosures. In the absence of
meaningful interests in nondisclosure, we readily conclude that the
17 public interest we identified above requires disclosure. We
therefore grant Mr. Tierney’s petition with respect to the
18 mandatory reports.
19 Order at 6 (internal citations omitted).

20 The same considerations discussed above also apply to these mandatory reports. They do

21 not contain information that could unfairly harm Dr. Baldwin, nor do they reveal any private

22 information about the complainants beyond what they previously chose to disclose publicly.

23 Given that these are mandatory reports that must be submitted to OMB by law, there is also no

24 meaningful risk that disclosing the mandatory reports at issue here would deter future
25 complaints.

26

Page 10 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 In short, the clear and convincing evidence in this case demonstrates that the public

2 interest favors the disclosing these public records, rather than continuing to withhold information

3 that may be critical to the health and safety of the public in multiple states.

4 V. CONCLUSION
5 For the foregoing reasons, the Court should grant Defendants’ Motion for Summary

6 Judgment against OMB’s claims and in favor of Defendants’ counterclaims, and it should order

7 OMB to release the requested records as directed by the Attorney General.

9 DATED this 6th day of October, 2023.

10 DAVIS WRIGHT TREMAINE LLP

11

12 By: s/ Tim Cunningham

Tim Cunningham, OSB #100906
13 timcunningham@dwt.com
Chris Swift, OSB #154291
14 chrisswift@dwt.com
Telephone: 503.241.2300
15 Facsimile: 503.778.5299
16 Of Attorneys for Defendants
17

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Page 11 - DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
4857-0509-6822v.4 0046890-000020
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax
 1 CERTIFICATE OF SERVICE

2 I hereby certify that I caused to be served a copy of the foregoing DEFENDANTS’

3 MOTION FOR SUMMARY JUDGMENT on:

4 Joshua L. Ross
Yoona Park
5 Sarah R. Osborn
Keller Rohrback LLP
6 805 SW Broadway, Suite 2750
Portland, OR 97205
7 jross@kellerrohrback.com
ypark@kellerrohrback.com
8 sosborn@kellerrohrback.com
9 Of Attorneys for Plaintiff
10 by emailing a copy thereof to said attorney at his/her last-known email address as
set forth above; and/or
11
by using electronic transmission of a notice of filing by the electronic filing
12 system provided by the Oregon Judicial Department, Odyssey File and Serve.
13 Dated this 6th day of October, 2023.
14 DAVIS WRIGHT TREMAINE LLP
15

16 By: s/ Tim Cunningham

Tim Cunningham, OSB #100906
17 Chris Swift, OSB #154291
18 Of Attorneys for Defendants
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Page 1 - CERTIFICATE OF SERVICE

4857-0509-6822v.4 0046890-000020 DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax