§ 40-47-190 — Disclosure of information relating to proceedings; public access; information relating to patients and witnesses.

(A)(1) A person connected with any complaint, investigation, or other proceeding before the board including, but not limited to, a witness, counsel, counsel's staff, board member, board employee, court reporter, or investigator may not mention the existence of the complaint investigation, or other proceeding, or disclose any information tending to identify the initial complainant or any witness or discuss testimony or other evidence in the complaint, investigation, or proceeding, except as otherwise provided in this section. (2) Information may be disclosed to persons involved and having a direct interest in the complaint, investigation, or other proceeding to the extent necessary for the proper disposition of the complaint, investigation, or other proceeding. The name of the initial complainant must be provided to the licensee who is the subject of the complaint, investigation, or proceeding unless the board, hearing officer, or panel determines there is good cause to withhold that information. (3) When the board receives information in any complaint, investigation, or other proceeding indicating a violation of state or federal law, the board may provide that information, to the extent the board considers necessary, to the appropriate state or federal law enforcement agency or regulatory body. The department may provide any information it considers necessary or appropriate to a substance abuse treatment program facility or monitoring program approved by the board, and this information must continue to be kept confidential and privileged from disclosure, except as provided by law. (B) When a formal complaint is made regarding allegations of misconduct, the formal complaint and an answer must be available for public inspection and copying ten days after the answer is filed or if no answer is filed, ten days after the expiration of the time to answer. Once the formal complaint becomes available for public inspection and copying, subsequent records and proceedings relating to the misconduct allegations must be open to the public except as otherwise provided in this section. (1) Patient records and identities must remain confidential unless the patient or legal representative of the patient consents in writing to the release of the records. (2) If allegations of incapacity of a licensee due to physical or mental causes are raised in the complaint or answer, all records, information, and proceedings relating to those allegations of incapacity must remain confidential. Any order relating to the licensee's authorization to practice must be made public; however, the order must not disclose the nature of the incapacity. (C) Once a proceeding becomes public as provided in this section, there is a presumption that any hearing, other proceeding, or record must remain public unless a party to the proceeding makes a showing on the record before the board, hearing officer, or panel that closure of the hearing or the record, in whole or in part, is essential to protect patients, witnesses, or the respondent from unreasonable disclosure of personal or confidential information. Public notice must be given of the request or motion to close any portion of a hearing or record, and the board, hearing officer, or panel shall provide an opportunity for a person opposing the closure to be heard prior to the decision on closure being made. (D) Subject to the right of public access and utilizing the procedure regarding closure described in this section, a witness in a proceeding or a patient whose care is at issue in a proceeding may petition the board, hearing officer, or panel for an order to close the hearing or record, in whole or part, to protect the witness or patient from unreasonable disclosure of personal or confidential information; however, the identity of a minor or sexual battery victim must remain confidential without a motion being made. (E) Upon a finding on the record that the health or safety or the personal privacy of a witness or patient would be put at risk unreasonably by the public disclosure of identifying information or of other personal information, the board, hearing officer, or panel may issue an order to protect the witness or patient from the harm shown to be probable from public disclosure. (F) Information that has been declared confidential or personal pursuant to this chapter or another applicable law must not be disclosed, except to the extent necessary for the proper disposition of the matter before the board, and is protected in the same manner as provided in Section 40-71-20, or as otherwise provided by law. (G) Except as provided in this section, the identity of confidential informants or other witnesses who do not testify must be kept confidential and must not be disclosed to other parties, entities, or persons, and all information contained in confidential investigative files is privileged from disclosure for any reason whatsoever. (H)(1) The department shall make reasonable efforts to provide written acknowledgment of every initial complaint and the disposition of the matter. Although entitled to notice, an initial complainant is not a party to the proceeding and is not entitled to appeal or otherwise seek review of the dismissal or other disposition of the matter. (2) For every unauthorized disclosure of confidential or personal information by a person in violation of this chapter, the department may issue an administrative citation and may assess an administrative penalty of up to five hundred dollars per violation, not to exceed a total of ten thousand dollars per matter. Upon disclosure of confidential or personal information in violation of this chapter, the department may refuse to provide further information to the violator. (3) An entity or individual assessed administrative penalties may appeal those penalties to the board within ten days of receipt of the citation. If an appeal is filed, the department shall schedule a hearing before the board, which shall make a determination in the matter. If no appeal is filed, the citation is considered a final order and the administrative penalties must be paid within thirty days of receipt of the citation or other written demand. (I) No information in investigative files or disciplinary proceedings is required to be expunged pursuant to any other provision of state law. (J) Every communication, oral or written, to the board, department, staff, counsel, expert reviewers or witnesses, or any other person acting on behalf of the board or department during the investigation, hearing, or adjudication of the disciplinary matters including, but not limited to, investigative reports concerning interviews and issues under investigation, correspondence, summaries, incident reports, computer printouts, and documents created during peer review proceedings are privileged from disclosure. Those persons and entities making such communications are immune from liability. (K) Nothing in this chapter may be construed as prohibiting the respondent or the respondent's counsel from exercising the respondent's right of due process under the law or as prohibiting the respondent from access to the evidence relevant to the formal charges, documents to be presented at the hearing, and statements of witnesses who will be called at the hearing.

Legislative History

HISTORY: 2006 Act No. 385, SECTION 1. Editor's Note Prior Laws:1962 Code SECTION 56-1369.2; 1976 Code SECTION 40-47-212.