Commonwealth Court upholds denial of access to medical board letters

By Nicholas Malfitano | Sep 15, 2015

Commonwealth Court Judge Rochelle S. Friedman  

HARRISBURG – In a Sept. 2 ruling from the Commonwealth Court of Pennsylvania, a citizen was denied his appeal to obtain state medical board documents from the Pennsylvania Office of Open Records (OOR).

The Court’s decision affirmed a Nov. 7 ruling of the OOR, which dismissed Alton Brown’s appeal from the decision of a Records Officer of the Pennsylvania Department of State who denied Brown access to records he was seeking under the Right to Know Law (RTKL).

The matter came before judges Bernard L. McGinley, Mary Hannah Leavitt and Rochelle S. Friedman, with Friedman writing the Court’s opinion concurring with the decision of the OOR’s Records Officer and Pennsylvania Department of State.

Brown filed complaints against two medical professionals licensed by the State Board of Medicine and the State Board of Osteopathic Medicine.

On Sept. 25, the Records Officer received Brown’s letter requesting: “The Department’s letters to the licensee that disclose the final outcome of the investigations of my complaints with the State Board of Medicine and the State Board of Osteopathic Medicine, complaint Nos: 13-53-12408 and 13-49-12410."

In a letter dated Sept. 30, the Records Officer denied Brown’s request on the ground that the letters were exempt from disclosure pursuant to section 708(b)(17) of the RTKL, because they were agency records related to non-criminal investigations.

On Oct. 17, Brown appealed the Records Officer’s denial to the OOR, and the OOR invited Brown and the Department to supplement the record. The Department submitted a response to Brown’s appeal and two sworn affidavits from Bernadette Paul, the deputy chief counsel of the Department’s prosecution division. 

In both affidavits, Paul stated that “The Department’s Bureau of Enforcement and Investigation (BEI) conducts investigations on behalf of the Department’s Bureau of Professional and Occupational Affairs (BPOA) and its 29 professional licensing boards,” including the State Board of Osteopathic Medicine and the State Board of Medicine. Paul added the BEI had investigated a complaint against an osteopathic physician and a complaint against a medical doctor.

“The assigned prosecuting attorney ultimately closed this matter without filing any formal disciplinary charges. No fine or civil penalty, suspension, modification or revocation of a license was imposed. Providing access to the records from this investigation would disclose the institution, progress or result of the investigation by, among other things, showing what avenues of investigation were pursued or not,” Paul said.

On Nov. 7, the OOR issued a final determination denying Brown’s appeal. Brown then appealed to the Commonwealth Court for review on this question.

Brown argued that the Department did not meet its burden of proving that the letters that Brown requested were exempt under section 708(b)(17)(vi)(A) of the RTKL, that it failed to show evidence of public policy supporting the denial of his request and that the MCARE Act does cover the disclosure of the letters he requested.

The Commonwealth Court disagreed on all counts, with Friedman stating the nature of Brown’s request made the records exempt from disclosure and the affidavits supported the same line of thought.

“Paul stated in the affidavits that the prosecuting attorney closed the investigations without imposing civil penalties or license restrictions on the licensees. The affidavits also explain how the requested records are exempt under section 708(b)(17)(vi)(A) of the RTKL, rather than merely presuppose the exemption in a conclusory statement. Therefore, the Department met its burden of proving that the requested letters were exempt from disclosure,” Friedman said.

Friedman also said the Pennsylvania Department of State was under no obligation to provide public policy considerations in regards to Brown’s request.

“We have not held that agencies must provide evidence of public policy considerations when denying access to a record that is exempt under state or federal law. Here, the letters that Brown requested were exempt from disclosure under section 708(b)(17) of the RTKL, and the Department denied Brown’s request on that basis. Therefore, the Department was not required to offer evidence that public policy favored denying Brown’s request,” Friedman said.

Friedman also cited Section 907(a) of the MCARE Act, which states materials used solely in State Board of Medicine of State Board of Osteopathic Medicine investigations are “confidential and privileged”, though this does not apply to letters disclosing the final outcome of an investigation and establishes the public nature of the requested letters. 

However, Friedman was careful to state the key note the MCARE Act does not include a means by which the public can access these records, such as the requested letters in this case. In keeping with the decision of the prior agencies, the Commonwealth Court denied Brown access to the requested records.

“The public nature of a record is distinct from public access to that record. The RTKL’s access provisions, including its exceptions to access, apply in the absence of a conflicting MCARE Act provision. Therefore, the access exception in section 708(b)(17)(vi)(A) of the RTKL is applicable here,” Friedman concluded.

The Commonwealth Court of Pennsylvania case 2221 C.D. 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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