73 Op. Att'y Gen. 37 (1984)
 
73 OAG 37 38 39 40 41 42 43 44 45

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.

 
73 OAG 37 38 39 40 41 42 43 44 45

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.


 
73 OAG 37 38 39 40 41 42 43 44 45

     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.

 
73 OAG 37 38 39 40 41 42 43 44 45

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?

 
73 OAG 37 38 39 40 41 42 43 44 45

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.

 
73 OAG 37 38 39 40 41 42 43 44 45

     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.

 
73 OAG 37 38 39 40 41 42 43 44 45

     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.


 
73 OAG 37 38 39 40 41 42 43 44 45

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


 
73 OAG 37 38 39 40 41 42 43 44 45