The State Ex Rel. Mahajan v. State Med. Bd. Of Ohio
| Citation | 2010 Ohio 5995 |
| Decision Date | 15 December 2010 |
| Docket Number | No. 2009-2293,2009-2293 |
| Parties | The State ex rel. Mahajan v. State Medical Board of Ohio. |
| Court | Ohio Supreme Court |
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Mahajan v. State Med. Bd. of Ohio, Slip Opinion No. 2010-Ohio-5995.]
Mandamus — Public records — R.C. 149.43 — Confidential law-enforcement investigatory records — R.C. 4731.22{¶)(5) — Confidentiality of information received by Medical Board pursuant to an investigation — Writ granted in part and denied in part — Request for statutory damages and attorney fees denied.
In Mandamus.
{¶ 1} This is an action for a writ of mandamus to compel respondent, the State Medical Board of Ohio, to provide access to unredacted copies of certain records related to one of its enforcement attorneys, pursuant to the Ohio Public Records Act, R.C. 149.43, and to award statutory damages and attorney fees. For those few parts of the requested records that the board improperly redacted, we grant the writ. For the vast majority of the records, in which the board properly redacted those portions that are exempt from disclosure, we deny the writ. We also deny relator's request for statutory damages and attorney fees.
{¶ 2} Relator, Mahendra Kumar Mahajan, M.D., is a physician licensed by the State Medical Board of Ohio to practice medicine in Ohio. Dr. Mahajan is a psychiatrist who has practiced in Dayton since 1982. On May 4, 2007, in connection with the board's investigation of Dr. Mahajan, David P. Katko, an enforcement attorney employed by the board, deposed him. On that same day, Nicholas E. Subashi, Dr. Mahajan's counsel, mailed a letter to the board's director complaining about Katko's deposition conduct, which Subashi described as "rude, unprofessional, threatening, and intimidating." Rebecca Marshall, the board's chief enforcement attorney, responded that she and the director had met with Katko "to counsel him about the unprofessional impression that arose" from his conduct at the deposition.
{¶ 3} The board notified Dr. Mahajan of its intent to take disciplinary action against him for violating R.C. 4731.22 by failing to maintain minimal standards of care. It held a hearing on the disciplinary charges against Dr. Mahajan in January 2009. After the hearing, Dr. Mahajan requested that the board provide him with copies of certain records, including the board's personnel file for Katko. The board produced over 8, 000 pages and several CDs of responsive records, including Katko's personnel file. The personnel file did not contain letters to or from Dr. Mahajan's counsel.
{¶ 4} Because Dr. Mahajan's attorney was surprised that his correspondence with the board was not included in the copy of Katko's personnel file provided by the board, on April 9, 2009, he made a new request for 11categories of records relating to Katko. The board contacted the doctor's attorney to advise him that his new records request was overbroad and to give him an opportunity to narrow it. Dr. Mahajan's counsel then amended his request to ask for only those records received or created by board members or management-level personnel related to Katko's May 4, 2007 deposition of Dr. Mahajan and any similar incidents involving Katko.
{¶ 5} On May 1, 2009, the board responded to Dr. Mahajan's revised records request by providing him with additional records. The board redacted portions of the requested records and provided the following detailed reasons for not disclosing the redacted material:
{¶ 6} 1. May 17, 2007 e-mail from Katko to the board's chief enforcement attorney. The board redacted the name of the physician and a quotation from a deposition transcript based on R.C. 4731.22(f)(5) ().
{¶ 7} 2. Notes of May 18, 2007 telephone conversation with the court reporter who transcribed Katko's May 4, 2007 deposition of Dr. Mahajan. The board redacted a portion of a question asking for the court reporter's opinion concerning Katko's behavior during the deposition. The redaction was based on Section 12112(d)(3)(B) and (d)(4), Title 42, u.S.Code ().
{¶ 8} 3. Notes of May 22, 2007 telephone conversation with Dr. Mahajan's attorney, Subashi. The board redacted the name of the physician, the discussion of the investigation, and a question asking for the attorney's opinion concerning Katko's behavior. This redaction was based on R.C. 4731.22(f)(5) and Section 12112(d)(3), Title 42, U.S.Code.
{¶ 9} 4. May 31, 2007 memorandum by the chief enforcement attorney to Katko's employee file concerning his counseling by the board regarding hisdeposition conduct. The board redacted portions of the memorandum that it claimed to be excepted from disclosure under R.C. 4731.22(f)(5) and as confidential law-enforcement investigatory records, the release of which would create a high probability of disclosure of specific confidential investigatory techniques or procedures, under R.C. 149.43(A)(2).
{¶ 10} 5. An e-mail thread beginning with an e-mail from Katko to the board's chief enforcement officer on June 18, 2007, and continuing through a June 19, 2007 e-mail from the chief enforcement officer to the board's assistant director. The board redacted the names of the physician based on R.C. 4731.22(f)(5). It redacted other portions of the e-mails as investigative records under that same statute and as confidential law-enforcement investigatory records, the release of which would create a high probability of disclosure of specific confidential investigatory techniques or procedures, under R.C. 149.43(A)(2).
{¶ 11} 6. October 2, 2007 handwritten note regarding a discussion with Katko instructing him not to destroy prior versions of expert reports. The board redacted the name of the physician in a separate case before the board, pursuant to R.C. 4731.22(f)(5).
{¶ 12} 7. An e-mail thread from October 5, 2007, regarding what Katko characterized as a reprimand by an assistant attorney general regarding his conduct. The board redacted the name of the subject of the investigation under R.C. 4731.22(f)(5), the discussion of a particular investigatory matter between the board's chief enforcement attorney and the board's assistant director under the confidential-law-enforcement-investigatory-record exception in R.C. 149.43(A)(2), and the message from an assistant attorney general to Katko based on the attorney-client privilege.
{¶ 13} Dr. Mahajan objected to some of the board's redactions, including some, but not all, of those previously specified. The board responded that after consultation with the attorney general's office, it had "determined that theredactions cited in [the] letter dated May 1, 2009 are appropriate and that no additional documents will be provided." In another letter dated September 29 addressed to the attorney general's office, Dr. Mahajan's attorney urged the board to reconsider the redactions he had objected to in his earlier letter. The board, through the attorney general's office, again refused.
{¶ 14} On December 21, 2009, Dr. Mahajan filed this action for a writ of mandamus to compel the board to provide him with access to unredacted copies of the seven responsive records previously discussed. The board filed an answer, and following unsuccessful mediation, we granted an alternative writ.
{¶ 15} On April 5, 2010, the board's hearing examiner issued a report and recommendation in the disciplinary case concerning Dr. Mahajan. In his report, the hearing examiner recommended that Dr. Mahajan's certificate to practice medicine be indefinitely suspended. After hearing the doctor's objections to the report and recommendation, the board rejected the hearing examiner's recommendation and instead imposed a three-year probationary term.
{¶ 16} The parties have filed evidence and briefs in this public-records mandamus case. This cause is before us for our consideration of the merits.
{¶ 17} In his merit brief, Mahajan asserts that he is entitled to the unredacted portions of the requested records based on Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 515, and constitutional due process. In Brady, the united States Supreme Court held that due process requires that the prosecution provide criminal defendants with any evidence that is favorable to them whenever that evidence is material to their guilt or punishment. Id. at 87. See also State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 67.
{¶ 18} We need not consider the merits of Mahajan's constitutional claim because he did not raise it in his complaint. Nor did he amend his complaint to raise this claim. And the board did not expressly or impliedly consent to its litigation. See State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 64; State ex rel. Miller v. Reed (1999), 87 Ohio St.3d 159, 160, 718 N.E.2d 428 ().
{¶ 19} Moreover, assuming that the board consented to the litigation of this claim by briefing its merits, insofar as Mahajan claims entitlement to the...
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