Can a North Dakota professional licensing board withhold a licensee's response in a disciplinary case as 'confidential' even when no peer review committee has been formed?
Plain-English summary
The North Dakota Board of Chiropractic Examiners reviewed Dr. Jeffrey Pokorny's disciplinary file in a special meeting in December 2021. Dr. Jake Schmitz asked for a copy of Dr. Pokorny's response to the Board. The Board denied the request, citing N.D.C.C. § 43-06-14.1(7), which says all data and information "acquired by the board or the peer review committee, in the exercise of its duties and functions, are confidential and closed to the public."
The Board's caution was understandable: a class C felony attaches to public servants who knowingly disclose information designated confidential by law (N.D.C.C. § 12.1-13-01). The Board's lawyer flagged the felony risk and the board responded conservatively.
But the AG read the statute differently. Looking at the 1989 legislative history, § 43-06-14.1(7) was enacted to support the optional peer review committee process. The statute's reference to the Board's "duties and functions" was meant to cover Board records related to a peer review process, not all Board disciplinary records when no peer review committee had been formed. Because the Board reviewed Pokorny's case as the full Board (not as or with a peer review committee), § 43-06-14.1(7) didn't apply. The Board could release the records, with appropriate redactions for things like patient information, without violating the felony statute.
The Board's good-faith reliance on the unclear text was reasonable, but the AG nonetheless concluded a technical violation had occurred and ordered redacted records to be produced.
What this means for you
If you're on a North Dakota professional licensing board
Read your specific confidentiality statute carefully. The Chiropractic Board's statute is tied to peer review. Your statute may be tied to investigation, complaint, or some other trigger. The default rule is openness; confidentiality is the exception, and it's read narrowly. When in doubt, redact and release rather than refusing wholesale.
If you're a licensee in a disciplinary proceeding
Your responses to the Board may not be as confidential as you'd hope. If the Board hasn't formed a peer review committee, those documents could be subject to release in redacted form. Patient information specifically identifiable to individuals will be redacted under HIPAA and patient confidentiality rules.
Common questions
Q: What's a peer review committee?
A: An optional committee a professional licensing board can appoint to manage complaints. Peer review committees in North Dakota chiropractic regulation date to 1989, intended to evaluate "particular situation(s) relative to treatment and costs."
Q: Why was the Board's denial "reasonable" but still wrong?
A: The statute's text was ambiguous, the legislative history clarified its intent, but the unclear text alone could trigger a class C felony if interpreted broadly. The Board chose the conservative reading. The AG used the opinion process to clarify the proper interpretation.
Q: What about HIPAA and patient confidentiality?
A: Patient information remains protected. The Board has to redact patient names, billing details that could identify patients, and other federally or state-protected categories before release.
Q: Is the felony liability still real for board staff?
A: Yes, but only when knowingly disclosing information that the law designates as confidential. The AG's opinion clarifies the scope of § 43-06-14.1(7) so future disclosures within the AG's interpretation aren't unlawful.
Citations and references
Statutes:
- N.D.C.C. § 44-04-18 (open records)
- N.D.C.C. § 44-04-18.10 (redaction duty)
- N.D.C.C. § 43-06-14.1 (chiropractic board confidentiality / peer review)
- N.D.C.C. § 12.1-13-01 (criminal disclosure of confidential records)
Source
- Landing page: https://attorneygeneral.nd.gov/professional-licensing-board-denied-a-request-for-a-licensees-response-in-discipline-case/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/01/2024-O-03.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210
Drew H. Wrigley
ATTORNEY GENERAL
OPEN RECORDS AND MEETINGS OPINION
2024-O-03
DATE ISSUED: January 9, 2024
ISSUED TO: North Dakota Board of Chiropractic Examiners
CITIZEN'S REQUEST FOR OPINION
Dr. Jake Schmitz requested an opinion from this office 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
improperly denying a request for records.
FACTS PRESENTED
The North Dakota Board of Chiropractic Examiners (Board) held a special meeting on December
1, 2021, to discuss three pending disciplinary cases, two new complaints, two applications, and
their per diem. During the meeting the Board reviewed information in records provided in a
response by Dr. Jeffrey Pokorny and voted to request additional information from him before the
next Board meeting "to include additional explanations regarding the billing information
provided and a fee schedule."
On December 2, 2021, Dr. Schmitz requested "a copy of Dr. Jeff Pokorny's response to the
board that was discussed yesterday in the meeting" from the Board. The Board responded the
next day denying Dr. Schmitz's request, stating "[t]he records you have requested are
confidential and closed to the public."
ISSUE
Whether the Board properly denied a request for records.
ANALYSIS
"Except as otherwise specifically provided by law, all records of a public entity are public
records, open and accessible for inspection during reasonable office hours." Confidential
records are "all or part of a record . . . that is either expressly declared confidential or is
prohibited from being open to the public." "A public entity has a duty to review a record, redact
exempt or confidential information, and turn over the remaining portions of the record that are
not protected." "[I]f confidential or closed information is contained in an open record, a public
entity shall permit inspection and receipt of copies of the information contained in the record that
is not confidential or closed, but shall delete, excise, or otherwise withhold the confidential or
closed information." It is a class C felony for a public servant to disclose records they know are
designated confidential by law.
The Board explained that the requested records included a letter from Dr. Pokorny with patient
schedules and patient billing records. Upon receiving Dr. Schmitz's request, the Board's
executive director sent the request to the Board's general counsel. The Board's attorney pointed
out a statute in the Board's chapter of the North Dakota Century Code, N.D.C.C.
§ 43-06-14.1(7), which states: "[a]ll data and information, including patient records acquired by
the board or the peer review committee, in the exercise of its duties and functions, are
confidential and closed to the public."
Even though the Board was not acting as a peer review committee here, subsection 7 appears to
include records acquired by the Board outside the peer review process. Specifically, the phrase
"its duties and functions" is unclear in the context of subsection 7 and could refer to either the
Board's or the peer review committee's duties or functions. Given the possible consequence of a
class C felony charge, the Board reasonably chose to respond conservatively and withhold the
records. Fortunately, the opinion process allows me to clarify for a public entity its duties under
the law in circumstances like this where statutory language has not been updated to clearly
reflect the purpose of the law as determined by the context and legislative history of the
subsection.
The pertinent law, subsection 7 of N.D.C.C. § 43-06-14.1, was enacted with the original section
14.1 of N.D.C.C. ch. 43-06 in 1989 and, despite legislative attempts to amend N.D.C.C.
§ 43-06-14.1(7) during the 68th Legislative Assembly, has been unchanged for thirty-four
years. Testimony from the President of the Board in 1989 stated the intention of the Board was
for this subsection to give the Board authority to review requests from patients, insurance
companies, government agencies (third party payors), or chiropractors of "particular situation(s)
relative to treatment and costs." The President's testimony further provided a thorough
explanation of the steps the Board intended to follow to create the peer review process in the
whole statute. Subsections 1 — 7 of the law must be read together.
Reading N.D.C.C. § 43-06-14.1 in its entirety, and reviewing legislative history, section 14.1
applies to an optional peer review process the Board may use to manage complaints. In this
instance, the Board did not appoint a peer review committee but reviewed the file as the full
Board. In its correspondence with this office, the Board never alleges it intended to function as a
peer review committee. Further, the Board discussed the records in its open meeting. While the
Board has the duty, and authority, to review disciplinary cases, it is my opinion that the record
protections in N.D.C.C. § 43-06-14.1(7) apply specifically to peer review committee records or
records in the possession of the Board that relate to a peer review committee once one has been
formed or if one is anticipated. Without the formation of the peer review committee, the Board
may release the requested records without violating N.D.C.C. § 43-06-14.1(7).
The Board's decision to withhold the records was reasonable in light of the confusion created by
the wording of N.D.C.C. § 43-06-14.1(7) until the Board was directed otherwise. After review
and analysis of applicable law and legislative history, absent use of the peer review process or
intention to proceed with one soon, it is my opinion that the Board could release part of Dr.
Pokorny's response to Dr. Schmitz under N.D.C.C. § 43-06-14.1(7) without violating N.D.C.C. §
12.1-13-01.
CONCLUSION
While the legislative language lacked clarity, it is nevertheless my opinion the Board improperly
denied a request for records under N.D.C.C. § 43-06-14.1(7).
STEPS NEEDED TO REMEDY VIOLATION
The Board must review the requested records and make the necessary redactions to comply with
open records and other applicable laws. The properly redacted records must be provided to Dr.
Schmitz.
While I have every reason to expect the Board will remedy this situation, failure to take the
corrective measures described in this opinion within seven days of the date this opinion is issued
will result in mandatory costs, disbursements, and reasonable attorney fees if the person
requesting the opinion prevails in a civil action under N.D.C.C. § 44-04-21.2. Failure to take
these corrective measures may also result in personal liability for the person or persons
responsible for the noncompliance.
Attorney General
cc: Dr. Schmitz