Wang v. Board of Massage Therapists

(1) “A court lacks subject matter jurisdiction under the Uniform Declaratory Judgments Act if some other exclusive remedy 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 declaratory relief is not available.” Salibello v. Board of Optometry, 276 Or App 363, 367 (2016). (2) ORS 676.165(5) provides that “[i]nvestigatory information obtained by an investigator and the report issued by the investigator shall be exempt from public disclosure.” However, “[i]f 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.” ORS 676.175(3).

Plaintiff appealed the trial court’s dismissal of her claims against the Oregon Board of Massage Therapists (the “Board”). Under her first claim, Plaintiff argued that the Board did not have authority to demand the Board’s fees and costs in defending application denials or other disciplinary sanctions. “A court lacks subject matter jurisdiction under the Uniform Declaratory Judgments Act if some other exclusive remedy 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 declaratory relief is not available.” Salibello v. Board of Optometry, 276 Or App 363, 367 (2016). The Court found that Plaintiff was required to request relief at the contested hearing before the Board rather than the trial court.

Under her second claim, Plaintiff argued that her public records request should not have been denied. ORS 676.165(5) provides that “[i]nvestigatory information obtained by an investigator and the report issued by the investigator shall be exempt from public disclosure.” However, “[i]f 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.” ORS 676.175(3). The Court found that Plaintiff was no longer an “applicant” because she withdrew her application. Therefore, the Board was not required to disclose the report.  

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.