11-0908-10070-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA BOARD OF VETERINARY MEDICINE

 

In the Matter of Mohammed Shahidullah, D.V.M. License No. 7978

RULING REGARDING BOARD'S MOTION

            The above-captioned matter is pending before the undersigned Administrative Law Judge pursuant to a Notice of and Order for Hearing issued by the Executive Director of the Complaint Review Committee of the Minnesota Board of Veterinary Medicine (hereinafter referred to as the "Board") on October 3, 1995.  Ann M. Offermann, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103-2106, appeared on behalf of the Board.  Mohammed Shahidullah, D.V.M., 1132 Central Avenue West, St. Paul, Minnesota 55104, appeared on his own behalf, without benefit of counsel. 

            On February 15, 1996, the Board filed a motion in which it (1)  sought to have the pleadings and hearings in this matter be open to the public, provided that the identities of complainants are protected; (2)  proposed to allow Dr. Shahidullah to see the complaints and investigation reports in order to prepare for the hearing, subject to a Protective Order directing the parties not to publicly disclose complainant identities and an Order that the exhibits in this case be sealed; (3)  sought permission to arrange for telephone testimony by two of the Board's witnesses; and (4)  sought to require Dr. Shahidullah to be required to pay for the actual costs of employee time spent in searching for and retrieving the copies he has requested of all stipulations and orders issued by the Board in the last fifty years as well as the actual costs of copying such documents.  Dr. Shahidullah filed a response in opposition to the motion on February 26, 1996, at which time the record regarding the motion closed. 

            Based upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED as follows:

1.     The pleadings, hearings, and the Orders and Report issued by the Administrative Law Judge in this matter shall be public, provided that Complainant identities are protected.  For purposes of this Order, the term "pleadings" shall include but not be limited to the Notice of and Order for Hearing, motions, and responses to motions.  To the extent possible, the parties and their attorneys shall refer to a complainant as "the owner of [pet’s name]" rather than by name.

2.     Pleadings, exhibits, and deposition transcripts that identify complainants shall be marked "not public data" at the top of the initial page and shall be filed in a sealed envelope bearing the following notation "This envelope, filed in this case by [name of party], contains not public information and is not to be opened or the contents thereof reviewed except by the Administrative Law Judge."  Such pleadings, exhibits, or deposition transcripts may be reviewed by members of the public only if the complainants provide written consent to such disclosure or if the names of complainants and identifying information are first redacted.

3.     Portions of the hearing may be closed to the extent necessary to protect the identities of complainants.

4.     Within five (5) working days of the date of this Order, the Board shall provide Dr. Shahidullah copies of Board files concerning complaints filed against him and investigative reports and data within the possession or control of the Board pertaining to him.

5.     The parties, their attorneys, and persons retained by them or acting on their behalf shall not publicly disclose investigative reports, the identities of complainants, or documents containing the identities of complainants, without the express written consent of the complainant.  Such information may be used only for purposes of this litigation.  The parties and their attorneys may disclose such information to investigators and witnesses as necessary to adequately prepare for the hearing in this matter.  Before showing or disclosing any protected data or information declared to be confidential or any information contained therein to any investigator or witness, a copy of this Order shall first be given to such person and a written acknowledgment shall be obtained from such person that he or she has read this Order and is fully familiar with its provisions and agrees to abide by and be bound by this Order.  Each attorney or party bears full responsibility for compliance with this Order by persons to whom he or she has disclosed not public information.

6.     If the owners of "Elvis" are unable to testify in person at the hearing, they will be permitted to testify by telephone.

7.     Dr. Shahidullah shall be permitted to inspect copies of government data without being required to pay any fee.  However, if he requests copies of the data, the State may require him to pay the actual costs of searching for and retrieving the data, including the cost of employee time, and the actual costs of making the copies of the data.  The State may not charge for separating public from not public data.  See Minn. Stat. § 13.03, subd. 3 (1994). 

 

Dated this 13th day of March, 1996.

 

                                                                             

BARBARA L. NEILSON

Administrative Law Judge

 

 

MEMORANDUM

Pursuant to Minn. R. 1400.7800 (1993), "[i]n the absence of a specific provision mandating or permitting a closed hearing, all contested case hearings are open to the public . . . ."  The statute governing disciplinary actions against veterinarians does not specify that such hearings are to be closed.  See Minn. Stat. § 156.081.  Moreover, the Minnesota Government Data Practices Act generally mandates that the pleadings and hearings in contested case proceedings initiated by licensing agencies be deemed public.  Minn. Stat. § 13.41, subd. 4 (1994), provides, in pertinent part, as follows:

Licensing agency minutes, application data on licensees, orders for hearing, findings of fact, conclusions of law and specification of the final disciplinary action contained in the record of the disciplinary action are classified as public, pursuant to section 13.02, subdivision 15.  The entire record concerning the disciplinary proceeding is public data pursuant to section 13.02, subdivision 15, in those instances where there is a public hearing concerning the disciplinary action.  If the licensee and the licensing agency agree to resolve a complaint without a hearing, the agreement and the specific reasons for the agreement are public data. . . .

The same section of the Government Data Practices Act further provides, however, that "active investigative data relating to the investigation of complaints against any licensee" shall be deemed to be confidential and that the following data shall be classified as private:

[T]he identity of complainants who have made reports concerning licensees . . . which appear in inactive complaint data unless the complainant consents to the disclosure; the nature or content of unsubstantiated complaints when the information is not maintained in the anticipation of legal action; the identity of patients whose medical records are received by any health licensing agency for purposes of review or in anticipation of a contested matter; inactive investigative data relating to violations of statutes or rules; and the record of any disciplinary proceeding except as limited by subdivision 4.

Minn. Stat. § 13.41, subds. 2(a) and (3) (1994).  It is thus evident that the Legislature intended to afford protection to the identities of complainants in both active and inactive matters.  Although the Legislature also intended to afford protection to the identities of patients, the patients in this matter are animals who have no expectation of privacy.  Accordingly, the Administrative Law Judge has determined that it is sufficient here to simply protect the identities of complainants from disclosure to the general public absent their specific consent.

            At the same time, it is apparent (and the Board has recognized) that Dr. Shahidullah requires access to the identities of complainants and to investigative materials in order to prepare for and participate in this contested case proceeding.  Principles of fairness require limited disclosure to Dr. Shahidullah of the not public data contained in the Board's records.  The limitations on the use and dissemination of the information set forth in the above Order will guard against unwarranted disclosure of the identities of the complainants while at the same time recognizing the value of free discussion at the hearing and Dr. Shahidullah's interest in obtaining this private information.  With the redactions and protections noted above, it appears that the benefit to the party seeking access to the data outweighs any harm to the confidentiality interests of the agency maintaining the data or the complainants involved.  Minn. Stat. § 13.03, subd. 6 (1994). 

            The Board has requested that two of its out-of-state witnesses be permitted to testify by telephone, if necessary.  In his response, Dr. Shahidullah does not specifically object to this request.  In the event that the witnesses are unable to appear in person, they will be permitted to testify by telephone.

            Dr. Shahidullah apparently has requested copies of all stipulations and orders issued by the Board in the last fifty years.  The Board correctly asserts that it is allowed to recover the actual costs of searching for and retrieving this information, including the cost of employee time, and for making copies of the data under the Minnesota Government Data Practices Act.  See Minn. Stat. § 13.03, subd. 3 (1994).  however, should Dr. Shahidullah wish to simply inspect these documents, the Minnesota Government Data Practices Act does not permit the agency to assess a charge. 

            Dr. Shahidullah mentions in his letter dated February 23, 1996, that he needs to be provided with all documents, a list of witnesses and exhibits, and other evidence and material facts in order to prepare for the hearing.  This letter should be viewed by the Board as a request for such information.  The Board should respond to the request as quickly as possible.  The rules of the Office of Administrative Hearings governing contested case proceedings require disclosure of names and addresses of all witnesses that are intended to be called at the hearing, a brief summary of each witness's testimony, and any relevant written or recorded statements made by the party or by witnesses on behalf of a party within ten days of a demand by another party.  Minn. R. 1400.6700, subp. 1 (1993). 

            The hearing in this matter is currently scheduled to begin on Friday, March 22, 1996.  If Dr. Shahidullah requires additional time in order to review the documents encompassed within this ruling and prepare for hearing, he may request a continuance pursuant to Minn. R. 1400.7500 (1993).  He should request such a continuance within five (5) business days of the hearing if at all possible.

B.L.N.