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 patient cannot waive the protection of the discussion because the protection runs to the body, not to the subject.

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. There is no partly-open executive session.

The recording can only be released in three ways under § 44-04-19.2(5): a court order, disclosure to the AG for review under § 44-04-21.1, or a majority vote of the body itself to release it. The chiropractic board did none of those things.

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 three statutory release mechanisms for executive-session recordings under § 44-04-19.2(5): court order, AG review under § 44-04-21.1, 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 privacy in your medical record belongs to you. The privilege in the board's discussion of your record belongs to the board. Two different protections, two different waivers. Even when you waive the first, the second still applies.

Q: Can the board choose to release the recording?
A: Yes, by majority vote under § 44-04-19.2(5). It is at the body's discretion. Asking the board to vote is a legitimate path if you can articulate why release would serve a legitimate purpose.

Q: What if I think the board talked about things outside the announced topic?
A: File an AG opinion request under § 44-04-21.1. The AG can review the recording (which is one of the three permitted disclosures) and determine whether the discussion strayed beyond the authorized scope. If the AG finds it did, the recording becomes available to you.

Q: My lawyer issued a subpoena for the recording in my civil case. Does that work?
A: A court order can compel disclosure. A subpoena issued under the court's authority generally qualifies, but a board can move to quash. Talk to your counsel about narrowing the subpoena to the portions you actually need.

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. There is no middle ground.

Background and statutory framework

Section 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.

Section 44-04-19.2(5) governs the recordings:

A recording of an executive session . . . may be released only pursuant to a court order, to the attorney general for the purpose of administrative review under section 44-04-21.1, or upon a majority vote of the governing body.

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 collected during licensing investigations. Section 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. During that meeting, an executive session was held to discuss closed or confidential records which contained medical or psychological information. 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.

The Board held a special meeting on April 5, 2021, and voted to deny Dr. Schmitz's request. 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.

On April 7, 2021, Dr. Custer requested a copy of the same executive session recording. 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. 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.

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. A governing body may hold an executive session to consider or discuss closed or confidential records. Section 43-06-15, N.D.C.C., further protects medical or psychological information relative to the examination or treatment of a licensed chiropractor. 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. 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. This request presumes parts of the executive session are open and can be redacted. 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. 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.

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.

However, Dr. Custer's request for records was not for his own medical or psychological records which may be released with an appropriate waiver. Rather, his request was for the entire executive session recording. 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. 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.

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. 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)