April 21, 1983
Mr. Robert D. Johnson
Executive Secretary
State Board of Medical and Osteopathic Examiners
608 West Avenue North
Sioux Falls, South Dakota 57104
Official Opinion No. 83-19
Inspection of Records
Dear Mr. Johnson:
You have requested an official opinion from this office based on the following factual situation:
FACTS:
Members of the public, including the press and attorneys representing persons in medical malpractice suits, have requested of the South Dakota Board of Medical and Osteopathic Examiners ('Board'), not only permission to review and inspect all agency material relating to the disciplinary matters involved, but also to photo copy the same. The materials sought which are involved in the disciplinary hearings of medical doctors frequently contain and identify individual patients and matters relating to their physical and/or mental condition.
Based upon the foregoing facts you have asked the following questions:
QUESTIONS:
1. May the Board make the records, documents or other instruments available for public inspection and review?
2. May the Board allow photo copying of records, documents or other instruments?
These questions are asked concerning the following types of records, documents and other instruments:
A. Complaints and inquiries concerning alleged violations of the South Dakota Medical Practice Act.
B. Investigations by the Board, Board members, investigators, agents or employees of the Board on possible violations of the South Dakota Medical Practice Act.
C. Records and all written materials relating to individual patients relative to the disciplinary proceedings either admitted into the record or on file with the Board or its agents in connection with the investigation.
D. Correspondence and reports to or from the Board or its agents from whatever source relative to the investigation or disciplinary proceedings, including:
(1) Investigators or agents of the Board
(2) Attorneys
(3) Doctors' attorneys
(4) Other governmental agencies.
E. Stipulations arrived at between the doctor involved and the Board and/or its agent.
F. Finds of Fact and Conclusions of Law and Decision.
IN RE QUESTION NO. 1:
The crux of your request appears to be the reconciliation of two sections of state statute which deal with agency records. On the one hand, SDCL 1-27-1, in part, states:
If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours.
On the other hand is SDCL 1-26-2, and the last sentence thereto, which deals with the confidentiality of derogatory materials.
SDCL 1-26-2 provides:
Each agency shall make available for public inspection all rules, final orders, decisions, opinions, intra-agency memoranda, together with all other materials, written statements or policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions. An agency shall hold confidential materials derogatory to a person but such information shall be made available to the person to whom it relates.
The issue of accessibility to documents relating to disciplinary proceedings involving doctors must balance the individual doctor's right-of-privacy and the public's right-to-know. I that regard, it should first be noted that the press has no greater right of access to sources of information than that afforded to the general public. See, McLaughlin v. Philadelphia Newspapers, Inc., 348 A.2d 376 (Pa. 1975).
The court decisions dealing with the issue of public access to records of disciplinary actions against licensed professionals have a varied response to the problem of 'privacy versus access.' The better reasoned opinions, however, limit public access to only those records dealing with proceedings that have gone beyond the complaint and investigation stage to the point of formal board action in the form of a contested case hearing held pursuant to SDCL 1-26. See, In re Pate, 107 S.W.2d 157 (Mo. 1937); Anno., 'Inspection of Complaints against Attorneys,' 83 A.L.R. 3d 777. See also, Anno., 'Restricting access to Records of Disciplinary Proceedings,' 83 A.L.R. 3d 749. This restriction is also consistent with the analogous situation found in the seventh exception to the coverage of the federal Freedom of Information Act. See, 5 U.S.C. § 552(b)(7).
This limitation also appears to be consistent with both SDCL 1-27-1 and SDCL 1-26-2. The formal papers such as the Notice of Hearing, Findings of Fact, Conclusions of Law and Order, which must be preserved, are open to the public review. Along with these documents, the material set out in SDCL 1-26-21, which defines the contents of the record in a contested case, is also open to public review. SDCL 1-26-21 provides:
The record in a contested case shall include:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received and considered;
(3) A statement of matters officially noticed which have been
refuted;
(4) Questions and offers of proof, objections, and rulings thereon;
(5) Proposed findings and exceptions;
(6) Any decision, opinion, or report by the officer presiding at the hearing;
(7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
By limiting public access to board records under SDCL 1-27-1 and SDCL 1-26-2 to only those files dealing with matters that have reached the adjudicatory stage of the administrative process, and only to that material which is part of the record, as defined by SDCL 1-26-21, access to records involving unfounded or unwarranted claims is eliminated. Of course, this would not prevent the person against whom the complaint is made from allowing access to the agency records. This limitation of access is also consistent with the last sentence in SDCL 1-26-2, in that the materials which constitute the record on a contested case are public records, regardless of the derogatory nature of the materials.
One additional factor that must be reviewed in regard to the question you present herein, is the status of the patient records that may become part of the record available for public inspection. Under state law, a patient's confidential communications with his physician are privileged. SDCL 19-13-7. Under SDCL 9-13-8, the patient is the only one entitled to claim the privilege. However, the provisions of SDCL 19-2-9 allow for the protection by the court of the privileges of persons who are not a part of the proceedings. The same concept applies to an agency acting in its quasi-judicial capacity. Thus, any references to specific patient names should be deleted from any records which are opened to public inspection.
To summarize, in answer to your first question, it is my opinion that the public may inspect the Board's records dealing with matters that have gone beyond the complaint and investigation stage to the point of formal board action, but that access is limited to the documents and materials that constitute the record in a contested case hearing, as that phrase is defined in SDCL 1‑26-21, subject to the limitations set forth above. The six specific types of records that you set out in your request must therefore be reviewed in light of SDCL 1-26-21.
IN RE QUESTION NO. 2:
It is my opinion, based upon the answer to Question No. 1, that photo copying of the materials opened to public inspection and review is permissible. Because review and inspection can be limited to viewing at the Board's offices, the Board may make a similar limitation on photo copying, including the charging of an appropriate fee for the cost of such photo copying.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
