State ex rel. Wallace v. State Med. Bd. of Ohio

Decision Date16 August 2000
Docket NumberNo. 99-1385.,99-1385.
Citation89 Ohio St.3d 431,732 NE 2d 960
PartiesTHE STATE EX REL. WALLACE ET AL., APPELLEES, v. STATE MEDICAL BOARD OF OHIO ET AL., APPELLANTS.
CourtOhio Supreme Court

Robert Armand Perez, Sr., for appellees.

Betty D. Montgomery, Attorney General, Scott Myers and Lisa Wu Fate, Assistant Attorneys General, and Mark R. Weaver, Special Counsel to the Attorney General, for appellants.

ALICE ROBIE RESNICK, J.

This case, which the court of appeals characterized as a "complex case involving the interplay of the Public Records Act, the confidentiality provisions of the State Medical Board of Ohio, and similar, but not identical provisions governing the State Department of Insurance" (footnote omitted), raises two separate yet interrelated issues for our consideration. First, we must determine whether the records in question are "public records" within the meaning of R.C. 149.43. If these records are not public records but rather are confidential investigatory materials, then we must determine whether the presence of a nonagent, third party during witness interviews constitutes a waiver of confidentiality in the otherwise privileged material.

I. Confidentiality of Investigatory Records

Ohio's Public Records Act is codified in R.C. 149.43 et seq. The statute defines "[p]ublic record" as "any record that is kept by any public office." R.C. 149.43(A)(1). The term "public office" includes "any state agency * * * established by the laws of this state for the exercise of any function of government." R.C. 149.011(A). R.C. 149.43 must be construed liberally in favor of broad access to records kept by public offices, and any doubt is to be resolved in favor of disclosure of the records. State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1997), 80 Ohio St.3d 261, 264, 685 N.E.2d 1223, 1227, citing State ex rel. Gannett Satellite Info. Network, Inc. v. Shirey (1997), 78 Ohio St.3d 400, 401, 678 N.E.2d 557, 559. Additionally, mandamus is the appropriate remedy to compel compliance with R.C. 149.43. R.C. 149.43(C); see, also, State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142, 647 N.E.2d 1374, 1377, citing State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426, 639 N.E.2d 83, 88-89. With these standards in mind, we now proceed.

A. Medical Board Records

The Medical Board is a "public office" for the purposes of R.C. 149.43. Former R.C. 4731.22(C)(1), the applicable provision governing Medical Board investigations, stated, "Information received by the board pursuant to an investigation shall be confidential and not subject to discovery in any civil action." 146 Ohio Laws, Part V, 8765. (The current version is codified at R.C. 4731.22[F][5] and is virtually the same.)

In State Med. Bd. of Ohio v. Murray (1993), 66 Ohio St.3d 527, 536, 613 N.E.2d 636, 642-643, we held that information contained in the Medical Board's records "is to be kept confidential at all times and is not, under any circumstances, * * * discoverable in a civil action." Based on the plain language employed in R.C. 4731.22, language that we previously deemed a "clear legislative directive," we hold that the Medical Board's investigative records are not public records. Id. at 536, 613 N.E.2d at 642.

R.C. 149.43(A)(1) defines "public record" and enumerates exceptions from the definition of "public record" for purposes of the Public Records Act. "Records the release of which is prohibited by state or federal law" are not public records. R.C. 149.43(A)(1)(q), formerly R.C. 149.43(A)(1)(p), 146 Ohio Laws, Part I, 134. In enacting former R.C. 4731.22(C)(1), the General Assembly specifically exempted the Medical Board's investigative records from disclosure under R.C. 149.43.

Having determined that the Medical Board's investigative records are not public records within the meaning of R.C. 149.43, we must now determine whether the Medical Board waived its right to confidentiality by allowing Wilson, a third party, to attend witness interviews.

Former R.C. 4731.22(C)(1) mandated that the board "conduct all investigations and proceedings in such a manner as to protect patient confidentiality. The board shall not make public names or other identifying information about patients unless proper consent is given or a waiver of the patient privilege exists" under R.C. 2317.02(B). 146 Ohio Laws, Part V, 8766. (This mandate remains unchanged in the current version of R.C. 4731.22 See R.C. 4731.22[F][5]. Moreover, this current version requires the board to protect confidentiality not only of patients but also of persons who filecomplaints with the board.) This provision contains safeguards designed to protect patient confidentiality in the same manner that the physician-patient privilege protects patient confidences. State Med. Bd. of Ohio v. Miller (1989), 44 Ohio St.3d 136, 138, 541 N.E.2d 602, 604. The court of appeals correctly recognized that by allowing Wilson to attend witness interviews, the Medical Board violated its duty to maintain the confidentiality in the information it gathered. We agree that it was improper for the Medical Board to give a private third party access to this information. Thus, the issue remains whether the Medical Board's breach of confidentiality constitutes a waiver.

One physician, Dr. Semertzides, authorized the release of information gathered at an interview attended by Wilson. The court of appeals determined that by signing the release Semertzides waived his privilege of confidentiality with regard to information gathered at his interview. Consequently, the court of appeals directed the trial court to release the records pertaining to Semertzides and to withhold any information concerning anyone else whose privacy rights were implicated. The court ordered that all other records should remain confidential because "[w]ithout a valid waiver from all persons whose privacy rights are implicated, these records may not be disclosed under the Public Records Act."

"Waiver" is defined as a voluntary relinquishment of a known right. See Chubb v. Ohio Bur. of Workers' Comp. (1998), 81 Ohio St.3d 275, 278, 690 N.E.2d 1267, 1269, citing State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors (1996), 75 Ohio St.3d 611, 616, 665 N.E.2d 202, 207. Persons may either expressly or impliedly waive statutory provisions intended for their own benefit, but statutory provisions cannot be waived when they are intended for the benefit of others. See Brannock v. Brannock (1986), 104 N.M. 385, 386, 722 P.2d 636, 637; see, also, State v. Ventura (1999), 101 Ohio Misc.2d 15, 19, 720 N.E.2d 1024, 1027. Moreover, it is a well-settled general principle that no party has the power to waive matters that affect third parties, because the holder of the privilege is the only one who has the power to relinquish it. Id.

Several groups have a privilege of confidentiality in the Medical Board's investigative files. In re Kralik (1995), 101 Ohio App.3d 232, 236, 655 N.E.2d 273, 275. These groups include patients, physicians who are under investigation, investigation witnesses, and any other persons whose confidentiality right is implicated by a Medical Board investigation. Id. The holder of the confidentiality privilege is the one who must waive it before the contents of the Medical Board's investigative files relating to that person may be divulged. Id. Hence, when someone who is not authorized to waive the privilege discloses privileged information, the information remains privileged. State v. Shipley (1994), 94 Ohio App.3d 771, 775, 641 N.E.2d 822, 825, citing Powers v. Chicago Transit Auth. (C.A.7, 1989), 890 F.2d 1355, 1357-1359. By permitting Wilson to attend Medical Board interviews with witnesses, the Medical Board waived its own confidentiality privilege; however, the Medical Board cannot unilaterally waive others' privileges to confidentiality, because the Medical Board is not the holder of those privileges.

The court of appeals properly ordered an in camera review of records pertaining to the interview with Semertzides and the release of those records after they are redacted to protect the confidentiality of anyone else who has not waived the privilege.

B. Insurance Department Records

The State Department of Insurance is a "public office" for purposes of R.C. 149.43. At issue is R.C. 3901.44, which relates to insurance fraud investigatory records.

Former R.C. 3901.44(A) stated: "All papers, documents, reports, and evidence in the possession of the division of insurance fraud of the department of insurance that pertain to an investigation conducted or authorized by the division are confidential law enforcement investigatory records under section 149.43 of the Revised Code. Notwithstanding such section, the division shall not prohibit public inspection of such records that pertain to an investigation after the expiration of all federal and state statutes of limitations applicable to the particular offense to which the papers, documents, reports, and evidence relate." 142 Ohio Laws, Part III, 4579. (The current version, codified at R.C. 3901.44[B], is substantially the same.)

Former R.C. 3901.44(A)'s explicit reference to R.C. 149.43 requires that the two sections be read in conjunction. "Confidential law enforcement investigatory records" are not public records for purposes of R.C. 149.43. Former R.C. 149.43(A)(1), now R.C. 149.43(A)(1)(h). However, this is not the end of the inquiry. R.C. 149.43(A)(2) defines "confidential law enforcement investigatory records" as "any record that pertains to a law enforcement matter of criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

"(a) The identity of a suspect who has not been charged with the offense to which the record pertains,...

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