Morton v. Skrine

• Decision Date: 05 January 1979
• Docket Number: 33859,Nos. 33858,s. 33858
• Citation: 242 Ga. 844,252 S.E.2d 408
• Parties: MORTON v. SKRINE et al. STEWART et al. v. MORTON et al.
• Court: Georgia Supreme Court

Page 408

252 S.E.2d 408

242 Ga. 844

MORTON v.SKRINE et al.

STEWART et al. v.MORTON et al.

Nos. 33858, 33859.

Supreme Court of Georgia.

Argued Sept. 18, 1978.

Decided Jan. 5, 1979.

Nicholson & Meals, Robert N. Meals, Jr., A. Lee Parks, Jr., Atlanta, Altman & McGraw, Sol Altman, Thomasville, Carlisle, Chason & McRae, Edwin A. Carlisle, Cairo, for appellant in No. 33858.

Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., John E. Zamer, Atlanta, Arthur K. Bolton, Atty. Gen., John C. Jones, Staff Asst. Atty. Gen., for appellees in No. 33858.

Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., John E. Zamer, Atlanta, for appellants in No. 33859.

Nicholson & Meals, Robert N. Meals, Atlanta, Altman, McGraw & Loftiss, Sol Altman, Thomasville, Carlisle, Chason & McRae, Edwin A. Carlisle, Cairo, Arthur K. Bolton, Atty. Gen., John C. Jones, Staff Asst. Atty. Gen., for appellees in No. 33859.

HALL, Justice.

The primary issue presented on this appeal is the meaning of Code Ann. § 84-916(d) governing the confidentiality of an investigatory file compiled about a physician's medical practice by a state examining body.AppealNo. 33858 is brought by the physician from an adverse decision in his mandamus action seeking access to the investigatory file.Consolidated with the appeal for decision is another appeal, No. 33859, brought by certain newspaper personnel also involved in the dispute.

I.Facts

The instant conflict arose in 1976.After complaints from four persons including three physicians, the State Board of Medical Examiners investigated Dr. William J. Morton(who is himself a member of the board), compiling an investigatory file between August and December of that year.The investigation was conducted pursuant to Code Ann. § 84-916(d) and was terminated on or about March 9, 1977, by the board's action unanimously exonerating Dr. Morton of all charges, without the necessity for a hearing on the charges.

Dr. Morton subsequently filed a libel action in the Superior Court of Grady County seeking damages for alleged injuries arising out of an article which appeared in the Atlanta Constitution on September 30, 1976, concerning the investigation.Defendants in that action are the persons who complained of his professional conduct, two newspaper reporters, and the newspaper publishing company.A separate appeal in that action has been filed in this court.Morton v. Gardner, 242 Ga. ---, 252 S.E.2d 413.The reporters and the publishing company are hereafter referred to as Intervenors.

On January 10, 1978, Dr. Morton brought a mandamus action in Fulton Superior Court against James E. Skrine, as Joint Secretary of the State Examining Boards, and the Composite State Board of Medical Examiners, seeking to compel the board to release to him its investigatory file.Intervenors sought to intervene to obtain access to the file equal to any granted Dr. Morton, and to enjoin his maintaining the libel action.The superior court dismissed Dr. Morton's mandamus suit for failure to state a claim for relief, on the ground that Code§ 84-916(d) as a matter of law prohibited the access he seeks.The order allowed intervention for the purpose of seeking file access, but refused to entertain the claim seeking injunction.

It should be added that although Dr. Morton now seeks to inspect and photograph the board's file, that file was previously in his possession for some eight months.Apparently in his capacity as a board member, Dr. Morton secured a copy of his investigative file from a board secretary.Intervenors allege that he used the information in the file to frame the defamation action against the complainants and the newspaper personnel.Following an opinion of the State Law Department that the file should be returned, Dr. Morton returned it when requested to do so.

Dr. Morton's mandamus action seeking access to the file is bottomed upon the Georgia Open Records Law (Code§ 40-2701 et seq.): "All State, county and municipal records, Except those, which by order of a court of this State or By law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen."(Emphasis supplied.)The ruling of the Fulton Superior Court denying access was based upon this final sentence from Code Ann. § 84-916(d)."The results of all investigations whatsoever shall be reported only to the board, and the records of such investigations shall be kept by the board; no part of any such record shall be released for any purpose other than a hearing before the board, nor shall such records be subject to subpoena."The court concluded that this sentence rendered the investigatory file exempt under the italicized language of the Open Records Law because Code§ 84-916(d) was an express "law" prohibiting the inspection of the investigatory file.

We agree with the superior court.

II.Confidentiality of the File

Dr. Morton argues that § 84-916(d) merely governs the conduct of the investigators who report to the board, and prohibits their release of information to anyone but the Board, but does not govern the Board's release of information.He urges that once an investigative file is closed, its disposition is governed by Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624(1976).Houston considered records made by a sheriff, of inmate deaths in the jail.A newspaper requested access to that information and this court established a balancing test in this language: "Statements, memoranda, narrative reports, etc. made and maintained in the course of a pending investigation should not in most instances, in the public interest, be available for inspection by the public.However, once an investigation is concluded and the file closed, either with or without prosecution by the state, such public records in most instances should be available for public inspection.When a controversy of this nature arises between a citizen and a public official, the judiciary has the rather important duty of determining whether inspection or non-inspection of the public records is in the public interest.In short, the judiciary must balance the interest of the public in favor of inspection against the interest of the public in favor of non-inspection in deciding this issue."237 Ga. at 765, 229 S.E.2d at 626.

Dr. Morton argues that we must remand to the superior court for consideration of both legal and factual issues in order to decide what would serve the public interest in this particular case.He further urges that into his side of the balancing test we must put his position as a member of the board and as the subject of the investigation, which gives him an especially strong need for access to the file.He says that since his "accusers" have taken their complaints to the newspapers, they have waived their own rights to confidentiality, and he is willing to waive his right to privacy as the subject of the investigation, thus leaving no significant right of privacy to be protected.

Additionally, Dr. Morton advances subsection (h), which provides a qualified privilege for persons reporting or testifying to the Board in such an investigation.He urges that the subsection presupposes that a subject of the investigation must be able to gain access to his file, for otherwise he could not successfully prosecute the informant even for fraud or malice, which are not immunized.

This issue is one of first impression in Georgia.Our conclusion is that subsection (d) of Code Ann. § 84-916 flatly prohibits release of the entire investigative file.This conclusion flows not only from the plain language of that subsection, but also from subsections (e) and (f).

Looking first at (d), the language of the legislature is a clear command: "The results of all investigations whatsoever Shall be reported only to the board, and the records of such investigations Shall be kept by the board; no part of any such record Shall be released for any purpose other than a hearing before the board, nor Shall such records be subject to subpoena."(Emphasis supplied.)This language is totally inconsistent with Dr. Morton's argument that the board should exercise its discretion on a case-by-case basis to determine what the "public welfare", mentioned in subsection (g), requires as to release of information.Further, we think the phraseology indicates that the legislature desired to immunize the Entire file.The statute refers to "the result of all investigations whatsoever,""the records of such investigations,""part of any such record," and "such records" all these are to be confidential.This, we think invalidates Dr. Morton's argument that the various entries in the files should be separately examined for an individual decision on the possible release of each entry.

Our conclusion flows additionally from the fact that what the board is inquiring into (a physician's medical practice) is a subject involving his patients' right to confidentiality.SeeCode Ann. § 38-418(b).The doctor's performance cannot be totally separated from the physical person of the patient, so an investigation must necessarily tread on some very private ground.This fact, among others, shows that the Houston case, involving a sheriff's records, is factually distinguishable from the situation presented in an investigation of a physician.The usual doctor-patient confidentiality supports and explains the direction of the legislature that the file not be released for any purpose whatsoever except a "hearing before the board."(Dr. Morton suggests that we might read the word "hearing" broadly enough to encompass the kind of public debate which flows from media publicity of an issue, so that once the newspaper has run the article...