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OPINION NO. OAG 10-84,
Wisconsin Attorney General Opinions
17 February 1984
HOSPITALS;
LAW ENFORCEMENT;
LICENSES AND PERMITS;
PUBLIC RECORDS;
REGULATION AND LICENSING, DEPARTMENT OF;
The public records law permits the Department
of Regulation and Licensing to refuse to
disclose records relating to complaints
against health care professionals while the
matters are merely "under investigation";
good faith disclosure of the same will not
expose the custodian to liability for
damages; and prospective continuing requests
for records are not contemplated by the
public records law.
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BARBARA NICHOLS, Secretary Department of
Regulation and Licensing
You have asked for my opinion regarding
access under the open records law to certain
investigative files in your custody.
Your Department and the various licensing and
regulatory boards created in your Department
are responsible for the regulation and
licensing of a variety of professions.
You are presently concerned with the boards
that oversee health care providers, namely
the Dentistry Examining Board, Medical
Examining Board, Board of Nursing and
Pharmacy Examining Board.
You state that a major newspaper has
requested a current list and monthly
update of all pending investigations
before those boards.
Pursuant to section 440.20,
any person may file a complaint before
any examining board and request any
examining board to commence disciplinary
proceedings against any permittee,
registrant or license or certificate
holder.
Section RL 2.03(7) of the Wisconsin
Administrative Code defines "informal
complaint" as follows:
"Informal complaint" means any written
information submitted to the division
[of enforcement] or any board by any
person which requests that a
disciplinary proceeding be commenced
against a licensee or which alleges
facts, which if true, warrant
discipline.
"Informal complaint" includes requests
for disciplinary proceedings as
specified in Section 440.20, Stats.
You state that most informal
complaints come from sources
lacking sufficient expertise to evaluate
the appropriateness of the professional
practice alleged or the legality of
the
conduct.
All informal complaints are subject
to
an initial screening pursuant to section
RL 2.035 of the Wisconsin Administrative
Code, which reads as follows:
All informal complaints received shall
be referred to the division for filing,
screening and, if necessary,
investigation.
Screening shall be done by the board,
or, if the board directs, by a board
member or the division.
In this section, screening is a
preliminary review of complaints to
determine whether an investigation
is
necessary.
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Considerations in screening include,
but
are not limited to:
(1) Whether the person complained
against is licensed;
(2) Whether the violation is a fee dispute;
(3) Whether the matter alleged, if
taken as a whole, is trivial; and
(4) Whether the matter alleged is a
violation of any statute, rule
or standard of practice.
You state that as a practical matter this
provision is used only as a broad
jurisdictional screen and matters are
routinely placed "under investigation"
without any preliminary evaluation
of the merits.
Therefore, a very high percentage of informal
complaints are identified in department
records as being "under investigation."
The Division of Enforcement conducts
investigations of all persons and entities
identified as "under investigation."
If the investigation discloses a violation of
law a formal complaint may be drafted and a
disciplinary proceeding commenced by the
filing of a Notice of Hearing with the
respective board office and the
designated hearing examiner.
The threshold burden for issuance of a formal
complaint varies from board to board.
The Medical Examining Board must make a
finding of probable cause after the
investigation is substantially completed and
before a formal complaint can issue and a
disciplinary proceeding can be commenced.
Other boards do not have this specific
probable cause requirement for
issuance of a formal complaint.
Instead, the decision to issue a formal
complaint is controlled by the professional
and ethical constraints of the prosecuting
attorney and the respective board.
Formal complaints are not issued until the
investigation has been substantially
completed and a violation of law identified.
If after a hearing on the allegations of the
formal complaint the board determines that a
violation of law has occurred, it may
reprimand, suspend, revoke or limit
the license of the licensee.
The investigations conducted by the Division
of Enforcement result in a substantial number
of the informal complaints "under
investigation" being closed without
commencement of any formal disciplinary
proceeding.
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The majority of these cases are closed
because the investigation did not result in
the collection of evidence sufficient to form
a basis for prosecution.
More specifically, 98% of the Dentistry
Board, 82% of the Medical Board, 92% of the
Pharmacy Board and 59% of the Board of
Nursing investigations completed between
January 1, 1983, and July 31, 1983, were
closed without commencement of formal
disciplinary proceedings.
You also state that matters "under
investigation" are treated differently so
that the apparently less serious allegations
or weaker cases may remain "under
investigation" for longer periods of time,
thus possibly creating a false impression as
to the severity or extent of an alleged
violation if the information were publicized.
You state the following with respect to the
rights and interests of persons under
investigation:
The licensee has no meaningful legal
recourse to challenge his status as
"under investigation" during the
pendency of the investigation.
The Department's action at this phase
of
the administrative process is probably
not reviewable in any legal forum.
Physicians, dentists, pharmacists and
nurses have significant reputational
interests to protect.
Their professional and economic success
and well being are directly related
to
the image they maintain in both the
public and private sectors.
A professional will not make a referral
to another professional who he or she
suspects may be incompetent.
Similarly, a member of the public will
not seek health care from an individual
who he or she perceives as possessing
questionable skill and knowledge.
You ask:
1. Under the facts and circumstances herein
stated, does public records law prohibit
the Department from disclosing a record
identifying a licensee under
investigation prior to the issuance
of a
formal complaint and Notice of Hearing
on the ground that the disclosure would
be likely to have a substantial adverse
effect upon the reputation of the
licensee which would outweigh the public
interest in disclosure?
2. Under the facts and circumstances herein
stated, does public records law permit
the Department to not disclose a record
identifying a licensee under
investigation prior to the issuance
of a
formal complaint and Notice of Hearing
on the ground that the disclosure
would be likely to have a substantial
adverse effect upon the reputation
of
the licensee which would outweigh the
public interest in disclosure?
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3. What liability, if any, does the records
custodian incur if he or she makes
a
good faith but incorrect decision to
disclose a record in response to a
public records request?
To what extent, if any, do Wis. Stats.
secs. 895.50(2)(c) and 895.50(3) provide
immunity from liability for a records
custodian who makes a good faith but
incorrect decision to disclose a record
in response to a public records request?
4. What obligation, if any, does the
Department have under the public records
law to honor prospective requests for
monthly updates of records not in
the possession of the agency at the
time
the request is made?
As to questions 1 and 2, it is my opinion
that the public records law does not prohibit
disclosure but does permit nondisclosure
under the facts and circumstances described.
In order to find a prohibition against
disclosure there must be a specific statutory
provision which establishes the prohibition.
Section 19.36(1), Stats.
I am aware of none pertaining
to the records in question.
However, section 19.35(1) provides:
The exemptions to the requirement of
a
governmental body to meet in open
session under Section 19.85 are
indicative of public policy, but may
be
used as grounds for denying public
access to a record only if the authority
or legal custodian under Section 19.33
makes a specific demonstration that
there is a need to restrict public
access at the time that the request
to inspect or copy the record is made.
Section 19.85(1)(b) and (f) authorize closed
meetings for the following purposes:
19.85(1)(b)
Considering dismissal, demotion,
licensing or discipline of any
public employe or person licensed
by a board or commission or the
investigation of charges against
such person, or considering the
grant or denial of tenure for a
university faculty member, and
the taking of formal action on
any such matter; provided that
the faculty member or other public
employe or person licensed is given
actual notice of any evidentiary
hearing which may be held prior to
final action being taken and of any
meeting at which final action may
be taken.
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The notice shall contain a statement
hat the person has the right to demand
that the evidentiary hearing or meeting
be held in open session.
This paragraph and paragraph 19.85(1)(f)
do not apply to any such evidentiary
hearing or meeting where the employe
or
person licensed requests that an open
session be held. . . .
19.85(1)(f)
Considering financial, medical,
social or personal histories or
disciplinary data of specific
persons, preliminary consideration
of specific personnel problems or
the investigation of charges
against specific persons except
where paragraph 19.85(1)(b) applies
which, if discussed in public,
would be likely to have a
substantial adverse effect upon the
reputation of any person referred
to in such histories or data, or
involved in such problems or
investigations.
It is my opinion that the tentativeness of
matters "under investigation" in your
Department would justify nondisclosure
until it is decided whether to commence
disciplinary proceedings.
In particular, I am struck by the fact that
matters are placed "under investigation" with
minimal if any preliminary evaluation of the
merits and a very small percentage of the
informal complaints ultimately result in
formal proceedings.
I am also persuaded that the reputational
interests at stake are predictably
substantial and that improvident public
disclosure that investigations are pending
would have an undue adverse effect on
professional reputations in the vast majority
of cases where formal disciplinary
proceedings are ultimately deemed
unwarranted.
I agree with your opinion that these
circumstances are different from those
involved in
Newspapers, Inc. v. Breier,
89 Wis.2d 417,
279 N.W.2d 179 (1979).
The supreme court held that the daily arrest
list, or "blotter," kept by a police
department is open to inspection.
The court said:
Information concerning the operations
of
the police department in making arrests
and the charges upon which arrests
are
made is vital to the democratic system;
and presumptively, by statute, the
records are to be open.
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While in some cases involving police
functions there is an overriding public
interest in preserving secrecy (e.g.,
in
the investigation of pending or proposed
criminal charges), no overriding
public-interest concern is discernible
when the executive act of arrest has
been completed.
An arrest is the exercise of the
government's power to deprive an
individual of freedom.
The government is required to have
probable cause whenever it deprives
an
individual of personal liberty, and
it
is offensive to any system of ordered
liberty to permit the government to
keep
secret its reason for depriving an
individual of liberty.
Breier, 89 Wis.2d at 438.
Although dicta, the court distinguishes
between pending investigations and cases
where probable cause has been found and
an arrest made based thereon.
In the former situation the court anticipates
that while an investigation is in flux
private reputational interests as well as law
enforcement interests will outweigh the
general public interest in access to public
records.
Also, the court in Breier expressly declined
to decide whether there is public access to
"rap sheets" which contain arrest records of
individuals.
But the court did say that the public policy
reasons for the disclosure or nondisclosure
of "rap sheet" records may differ markedly
from the reasons which led the court to
rule the police blotter accessible.
Breier, 89 Wis.2d at 424.
These statements by the court reveal a
sensitivity to reputational interests of
persons under investigation and indicate it
may very well be proper to keep investigative
files confidential until the investigation is
substantially completed.
This sensitivity is also reflected in
SCR 22.24 relating to investigations of
attorneys and section 757.93 relating to
investigations of judges.
The court's statements in Breier do not
expressly sanction the nondisclosure of
investigative files, but they serve to
suggest that such a position is not patently
indefensible and may be entirely appropriate.
This indicates to you that it would not be
unreasonable to decide to keep your pending
investigation files confidential.
Attendant to a decision to keep pending
investigation files confidential is an
obligation to ensure that investigations are
conducted expeditiously and that the decision
to close the investigation or pursue
disciplinary action is made without
unnecessary delay.
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It would not be justified to broadly
characterize inactive files as pending
investigations so as to foreclose public
access.
I also want to make very clear that this
opinion relates only to pending
investigation files.
Once an investigation is completed and the
decision whether to pursue disciplinary
action is made, there may no longer be
sufficient reasons for keeping the file
confidential.
Specifically, the concern for a premature and
probable adverse effect on the reputation of
a licensee being "under investigation" is
allayed when the file also discloses that
the investigation found no basis for
pursuing disciplinary action.
It may still be justified in some cases to
decline to disclose some or all of an
investigative file even after the
investigation is resolved.
However, these determinations should be rare
and must be made on a case-by-case basis.
As to your third question, it is my opinion
that if a custodian makes a good faith
decision to disclose a public record, the
custodian would be generally immune from
liability by virtue of the principle of
public officer immunity as described in
Lister v. Board of Regents,
72 Wis.2d 282, 300,
240 N.W.2d 610 (1976),
and specifically immune from liability
for invasion of privacy by virtue
of section 895.50(2)(c).
If information relating to a matter "under
investigation" is disclosed, you should
nevertheless stress that it is inappropriate
to draw any adverse conclusions from the mere
pendency of the investigation.
As to your fourth question regarding
prospective continuing requests for monthly
updates, it is my opinion that the open
records law does not contemplate
that such a request be honored.
The right of access applies only to extant
records, and the law contemplates custodial
decisions being made with respect to a
specific request at the time the
request is made.
Section 19.32(2)
Section 19.35(1)(a)
Section 19.35(1)(h)
Section 19.35(4), Stats.
BCL:RWL
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