If a North Dakota licensing board discussed me in executive session, can I get a copy of that recording?

Plain-English summary

The North Dakota Board of Chiropractic Examiners met on March 26, 2021 and went into executive session to discuss medical or psychological information about a licensed chiropractor. The session was properly recorded under § 44-04-19.2(5).

Four days later, Dr. Jake Schmitz asked for the recording or a redacted transcript with the confidential information removed. The board denied the request on April 5, citing § 44-04-19.2(1) (closed or confidential records) and § 43-06-15(6) (medical or psychological information). Two days after that, Dr. Mason Custer asked for the same recording. His argument was different: he was the person whose information had been discussed, so the privacy belonged to him to waive. The board met on April 14 and denied his request too.

AG Drew Wrigley sided with the board on both requests. The key holding:

The recording is a separate and distinct record from the protected records being discussed during the executive session. An executive session not only protects closed or confidential records, but also the governing body's discussion of those protected records.

That means even if the medical record itself could be released with the patient's consent, the board's deliberations about that record are independently protected. The opinion says the subject cannot waive protection of the Board’s discussion.

Dr. Schmitz had argued that redaction could carve out an "open" portion of the discussion. The AG rejected that. If any portion of the session were actually open, then including that portion in executive session was unauthorized in the first place. The opinion found no open portion of this authorized executive session to provide.

For an authorized executive session not required to be confidential, the opinion identifies three possible disclosure mechanisms under § 44-04-19.2(5): court order, disclosure to the AG for administrative review under § 44-04-21.1, or a majority vote of the body. It says none applied to these requests. It does not say an AG review would make the recording available to the requester.

What this means for you

If you are a licensed professional whose records were discussed in a board executive session

The opinion holds that the recording of the executive session is a "separate and distinct record from the protected records being discussed." The opinion concludes that the protection of the board's discussion is not waivable by the subject of that discussion, so a chiropractor whose records were reviewed cannot obtain the recording on the basis that the underlying records were his own.

If you sit on a North Dakota professional licensing board

The opinion identifies the limited disclosure mechanisms for an authorized session not required to be confidential: a court order, disclosure to the AG for administrative review, or majority vote of the governing body. The opinion treats the executive session itself as authorized when it concerns closed or confidential records under § 44-04-19.2(1) and confidentiality statutes such as § 43-06-15(6).

If you are a records attorney evaluating a request for an executive-session recording

The opinion rejects the redaction approach Dr. Schmitz proposed, reasoning that "[i]f there were 'open' portions of the executive session that could be released, then those parts of the session would not be authorized by law." The opinion treats the executive-session protection as covering both the records and the deliberation about them.

Common questions

Q: I am the person discussed. Doesn't the privacy belong to me? A: The opinion says a person’s own medical or psychological records may be released with an appropriate waiver. Dr. Custer requested the full executive-session recording instead, and he could not waive the protection of the Board’s discussion.

Q: Can the board choose to release the recording?
A: The opinion lists majority vote as a possible disclosure mechanism for an authorized session not required to be confidential. It does not decide whether a vote could release this particular recording, which concerned protected medical or psychological information.

Q: What if I think the board talked about things outside the announced topic? A: An interested person may request an AG opinion under § 44-04-21.1. The statute allows disclosure to the AG for administrative review. This opinion does not say the recording would then be released to the requester, and the authorization of this session was not contested.

Q: Can the board release a redacted version with the confidential parts blacked out? A: The AG rejected that approach in this opinion. The reasoning: if any portion of the session was truly "open," it should not have been in executive session at all. The AG found there was no open portion of this authorized executive session to provide.

Background and statutory framework

N.D.C.C. § 44-04-18 makes records of public entities open by default. The executive-session statutes (§§ 44-04-19.1 and 19.2) carve out specific topics for closed deliberation and require the body to record those sessions.

N.D.C.C. § 44-04-19.2(5) governs the recordings:

For a session not required to be confidential, the opinion lists a court order, disclosure to the Attorney General for administrative review under § 44-04-21.1, or majority vote of the governing body. AG review is access for the AG, not a ruling that the requester receives the recording.

The Schmitz/Custer opinion adds two doctrinal points to that rule:

1. The privilege extends to the discussion of confidential records, not just the records themselves. The body's deliberation is its own protected category.
2. The privilege is not waivable by the subject of the discussion. Even if the underlying record could be released with consent, the deliberation about that record requires the body's own action.

For chiropractors specifically, § 43-06-15 protects medical or psychological information relative to the examination or treatment of a licensed chiropractor. N.D.C.C. § 43-06-14.1(7) extends similar protection to patient testimony and records. These create the substantive confidentiality that justified the closed session in the first place.

Citations

• N.D.C.C. § 44-04-18 (public records open by default)
• N.D.C.C. § 44-04-18.10(1) (cannot deny a request just because a record has some confidential info)
• N.D.C.C. § 44-04-19.2(1), (5) (executive session for confidential records; recording release rules)
• N.D.C.C. § 43-06-15, § 43-06-15(6) (chiropractic board confidentiality, medical/psychological information)
• N.D.C.C. § 43-06-14.1(7) (patient testimony and records)
• N.D.C.C. § 44-04-21.1 (citizen request for AG opinion)
• Prior AG opinions cited: N.D.A.G. 98-O-06; 99-L-30; 2019-O-19

Source

• Landing page: https://attorneygeneral.nd.gov/recording-of-executive-session-is-protected/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2023/02/2022-O-05.pdf

Original opinion text

OPEN RECORDS AND MEETINGS OPINION
2022-O-05

DATE ISSUED: May 19, 2022

ISSUED TO: North Dakota Board of Chiropractic Examiners

CITIZEN’S REQUEST FOR OPINION

Dr. Jake Schmitz and Dr. Mason Custer requested opinions under N.D.C.C. § 44-04-21.1 asking whether the North Dakota Board of Chiropractic Examiners violated N.D.C.C. § 44-04-18 by withholding a recording of an executive session regarding records.

FACTS PRESENTED

The North Dakota Board of Chiropractic Examiners (Board) held a regular meeting on March 26, 2021.1 During that meeting, an executive session was held to discuss closed or confidential records which contained medical or psychological information.2 On March 30, 2021, Dr. Schmitz requested the recording of that executive session, or a transcript of the recording, with the closed or confidential information redacted.3

The Board held a special meeting on April 5, 2021, and voted to deny Dr. Schmitz’s request.4 The Board responded to Dr. Schmitz the same day denying his request citing N.D.C.C. § 44-04- 19.2(1), closed or confidential records, and N.D.C.C. § 43-06-15(6), medical or psychological information.5

1
Agenda, N.D. Bd. of Chiropractic Exam’rs (Mar. 26, 2021); Minutes, N.D. Bd. of Chiropractic Exam’rs (Mar. 26, 2021); Letter from Dr. Dion Ficek, Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (Apr. 14, 2021); Letter from Dr. Michael Remmick, Vice Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (May 12, 2021). 2 Letter from Dr. Dion Ficek, Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (Apr. 14, 2021); Letter from Dr. Michael Remmick, Vice Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (May 12, 2021). 3 Letter from Dr. Dion Ficek, Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (Apr. 14, 2021); E-mail from Dr. Jake Schmitz to Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam’rs (Mar. 30, 2021, 1:36 PM). 4 Email from Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam'rs, to Dr. Jake Schmitz (Apr. 5, 2021, 2:55 PM). 5 Id.

OPEN RECORDS AND MEETINGS OPINION 2022-O-05
May 19, 2022
Page 2

On April 7, 2021, Dr. Custer requested a copy of the same executive session recording.6 The Board’s executive director sent a response to Dr. Custer on April 8, 2021, informing him the Board scheduled a special meeting to discuss his request.7 On April 14, 2021, the Board met, voted to deny Dr. Custer’s request based on N.D.C.C. §§ 44-04-19.2(1) and 43-06-15(6), and informed him of the denial in writing.8

ISSUE

Whether the Board properly withheld an executive session recording discussing closed or confidential records from Dr. Schmitz and Dr. Custer.

ANALYSIS

All records of a public entity must be open to the public unless otherwise specifically provided by law.9 A governing body may hold an executive session to consider or discuss closed or confidential records.10 Section 43-06-15, N.D.C.C., further protects medical or psychological information relative to the examination or treatment of a licensed chiropractor.11 Unless the executive session was required to be confidential, a recording of an authorized executive session can be disclosed only pursuant to court order, to the attorney general for the purpose of administrative review under N.D.C.C. § 44-04-21.1, or upon majority vote of the governing body.12 Dr. Schmitz and Dr. Custer both asked the Board for the recording of the March 26, 2021, executive session.

Dr. Schmitz, acknowledging medical and psychological records are protected by statute, asked for a redacted transcript of the executive session.13 This request presumes parts of the executive

6
Letter from Dr. Michael Remmick, Vice Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (May 12, 2021). 7 Letter from Dr. Michael Remmick, Vice Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (May 12, 2021); E-mail from Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam'rs, to Dr. Mason Custer (Apr. 8, 2021, 2:22 PM). 8 Minutes, N.D. Bd. of Chiropractic Exam’rs (April 14, 2021); Letter from Dr. Michael Remmick, Vice Pres., N.D. Bd. of Chiropractic Exam’rs, to Att'y Gen.'s Office (May 12, 2021). 9 N.D.C.C. § 44-04-18. 10 N.D.C.C. §§ 44-04-19.1(2), (5); 44-04-19.2(1). 11 See also N.D.C.C. § 43-06-14.1(7) (protecting patient testimony or records); N.D.A.G. 2019- O-19. 12 N.D.C.C. § 44-04-19.2(5). 13 E-mail from Dr. Jake Schmitz to Att'y Gen.'s Office (Apr. 6, 2021, 8:09 AM).

OPEN RECORDS AND MEETINGS OPINION 2022-O-05
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Page 3

session are open and can be redacted.14 The purpose of an executive session is not only to protect the records being discussed, but also to protect the consideration or discussion of those closed or confidential records.15 The Board’s discussion about the protected records is also protected. Therefore, there is no “open” portion of the executive session to provide without redaction. If there were “open” portions of the executive session that could be released, then those parts of the session would not be authorized by law.16

Dr. Custer also requested a copy of the executive session and argues the Board “cannot deny
[his] request for the recording [of the executive session], since it is [his] medical/psychological information” being discussed and the “intent of the law” is to protect his information from the public, not deny his ability to request the discussion that took place regarding his personal information.17

However, Dr. Custer’s request for records was not for his own medical or psychological records which may be released with an appropriate waiver.18 Rather, his request was for the entire executive session recording.19 The protection of the discussion of the protected records by the Board during executive session is not something that can be waived by Dr. Custer.

The Board entered into this executive session to discuss closed or confidential records.20 The Board also properly recorded the session. The recording is a separate and distinct record from the protected records being discussed during the executive session. An executive session not only protects closed or confidential records, but also the governing body’s discussion of those protected records.21

14
See generally N.D.C.C. § 44-04-18.10(1) (A public entity may not deny a request for an open record on the grounds that the record also contains confidential or closed information.) 15 N.D.C.C. § 44-04-19.2. 16 See N.D.C.C. § 44-04-21.1(1) (any interested person may request an attorney general’s opinion to review a . . . violation of section . . . 44-04-19.2). The validity of the executive session was not a question asked by either requester. 17 E-mail from Dr. Mason Custer to to Att'y Gen.'s Office (Apr. 18, 2021, 5:58 PM). 18 See N.D.A.G. 99-L-30 (there is an assumption confidentiality imposed by law can be waived by the party or parties who are intended to benefit from making the records confidential). 19 E-mail from Dr. Mason Custer to to Att'y Gen.'s Office (Apr. 18, 2021, 5:58 PM). 20 “A governing body may hold an executive session to consider or discuss closed or confidential records.” N.D.C.C. § 44-04-19.2. 21 N.D.C.C. § 44-04-19.2 (governing body may hold an executive session to consider or discuss closed or confidential records); N.D.A.G. 98-O-06 (discussion about a child’s grades in a recorded grade book, a confidential education record under Family Educational Rights and Privacy Act, 23 U.S.C. § 1232g, was properly held in executive session).

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Although there are three ways an executive session recording may be released under subsection 5 of N.D.C.C. § 44-04-19.2, none of them applies to these requests. The Board denied Dr. Schmitz’s and Dr. Custer’s requests for the March 26, 2021, executive session recording based on the same legally authorized reasons for holding the executive session, N.D.C.C. §44-04- 19.2(1), discussion of closed or confidential records, and N.D.C.C. §43-06-15(6), medical or psychological information.22 The authorization of the executive session is not contested. Based on the information provided, the executive session was authorized by law; consequently, the executive session recording is protected by law. It is my opinion the Board properly denied both Dr. Schmitz’s and Dr. Custer’s requests.

CONCLUSION

The Board properly withheld from Dr. Schmitz and Dr. Custer the executive session recording of discussions of protected records.

Drew H. Wrigley
Attorney General

aml
cc: Dr. Jake Schmitz (via email only) Dr. Mason Custer (via email only)

22
Email from Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam'rs, to Dr. Jake Schmitz (Apr. 5, 2021, 2:55 PM); E-mail from Lisa Blanchard, Exec. Dir., N.D. Bd. of Chiropractic Exam'rs, to Dr. Mason Custer (Apr. 14, 2021, 2:06 PM).