The opinion of the court was delivered by ARD, P.J.A.D.
This is a wrongful death action. Plaintiffs, Sandra Beck and Stanley Arbus, individually and as executors of the Estate of Yetta Arbus, commenced this action by the filing of a complaint on October 27, 1981. The complaint names, inter alia, Sanfurd G. Bluestein, M.D., and Albert DeDios, M.D., as defendants. It alleges that said defendants negligently administered emergency treatment to Yetta Arbus and negligently injected her with a dye or radioactive isotope for the purpose of a lung scan which ultimately led to her death.
Prior to the commencement of the civil action, plaintiffs instituted a letter complaint against the defendants with the State Board of Medical Examiners on December 5, 1980. The complaint incorporated the aforementioned allegations. In response to this complaint, the Board summoned Drs. Bluestein and DeDios to appear before an executive committee for the purpose of reviewing the operative facts and to inquire into the circumstances surrounding the incident. The inquiry was conducted in executive session. A record was made of all testimony.
Thereafter, the Board issued decision letters in which it reprimanded Drs. Bluestein and DeDios and directed the institution of corrective procedures. It is noteworthy that the Board made reference to the testimony of Dr. DeDios in its letter decision. During pretrial discovery in the civil action, plaintiffs deposed Dr. DeDios. Plaintiffs then subpoenaed the transcripts and record of the hearing before the Board of Medical Examiners. They alleged discrepancies between Dr.
The trial judge, following oral argument and after an in camera inspection of the transcripts of the doctors' testimony before the Board, denied plaintiffs' motion to compel production of the documents. We granted leave to appeal from said order.
On appeal, plaintiffs argue that the trial judge committed error in refusing to order the production of the requested material. Plaintiffs contend that they are entitled to the production of the aforementioned transcripts under the Right To Know Law, N.J.S.A. 47:1A-1, et seq.; under the common law right of a citizen to inspect public records, and pursuant to the discovery procedures contained in the Rules of Civil Practice and Procedure. R. 4:10-1, et seq.
For the purpose of the motion, there is little dispute over the facts. Decedent appeared at the office of Dr. Bluestein and Dr. DeDios for a lung scan. She was referred to the doctors by a personal physician because of complaints of shortness of breath and hemoptysis. The lung scan was performed by Dr. DeDios
In complaining to the Board of Medical Examiners, the plaintiffs made a general assertion of negligence and, in particular,
As indicated, in response to the letter complaint, the Board summoned Drs. Bluestein and DeDios to appear before an executive committee for the purpose of reviewing the operative facts and to inquire into the circumstances surrounding the incident. Dr. DeDios testified before the executive committee on April 22, 1981. Dr. Bluestein testified on August 5, 1981. It is the transcripts of the doctors' testimony which are the subject of this appeal.
Following the doctors' testimony and after a review of the emergency room record, the Board issued decision letters reflecting its evaluation in which it reprimanded Dr. DeDios based upon his failure to prepare a patient record required by N.J.A.C. 13:35-6.12; failure to identify himself as a responsible physician in the office; allowing his judgment not to perform the procedure in the office to be overriden by the patient's request to have the procedure performed; failure to take prompt emergency action when the decedent expressed symptoms of a dire emergency, and failure to instruct the office staff on emergency procedures, including contact with the hospital. Dr. DeDios was reprimanded and directed to immediately institute corrective procedures in each of the aforementioned problems. Dr. Bluestein was also reprimanded and admonished as a "responsible partner" to take the aforementioned corrective measures. Both decision letters were forwarded to plaintiffs' counsel.
Plaintiffs seek the production of the transcripts of the doctors' testimony for the purpose of impugning Dr. DeDios' credibility when, and if, he testifies, and as direct evidence of the circumstances surrounding the decedent's visit to defendants' office. Originally the trial judge denied plaintiffs' motion to compel the production of transcripts without reviewing the discovery material. We granted plaintiffs' leave to appeal and reversed the order of the trial judge. The matter was then remanded for reconsideration of plaintiffs' application with the direction that the trial judge review in camera the material sought to be discovered. Irval Realty v. Bd. of Pub. Util. Commissioners, 61 N.J. 366, 375-376 (1972). Thereafter, the trial judge again denied plaintiffs' application and issued a letter opinion in support of the denial concluding that the State's interest in maintaining confidentiality clearly outweighed the need for discovery in this matter. We again granted plaintiffs' application for leave to appeal.
It is axiomatic that:
Our Legislature in enacting the Right To Know Law, N.J.S.A. 47:1A-1, et seq., declared "... it to be the public policy of this State that public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. The definition of a public record is contained within Section 2 of that statute which provides:
Unlike a citizen's common law right to inspect and examine public records, the Right To Know Law, N.J.S.A. 47:1A-1, et seq., imposes no requirement of standing or interest to obtain access to public records. Nero v. Hyland, 76 N.J. 213 (1978); Irval Realty v. Bd. of Pub. Util. Commissioners, 61 N.J. at 372-373; Citizens For Better Ed. v. Bd. of Ed. Camden, 124 N.J.Super. 523, 528 (App.Div. 1973).
In Irval, the Supreme Court succinctly summarized this principle as follows:
Thus, it is clear that plaintiffs have an absolute right to the production of the transcripts under N.J.S.A. 47:1A-1, et seq., provided said transcripts are deemed "public records." As indicated, the plain language of the act defines "public records" to include:
There is no dispute that the documents in question were generated by a public body, namely, the Board of Medical Examiners. Also, it is not disputed that there is no statutory or regulatory provision requiring the record in question to be made or kept by the Board. Nevertheless, plaintiffs maintain that there is statutory authority mandating that an investigation be conducted by the Board, and therefore, the records are deemed "public records." We disagree.
It is noteworthy that plaintiffs do not cite a specific statutory or regulatory provision requiring the Board of Medical Examiners
The statute is clearly permissive, and there is no statutory or regulatory requirement which either mandates an investigation be conducted or an investigatory record be made, maintained or kept. As such, the records are not public records within the meaning of N.J.S.A. 47:1A-1. Accordingly, the
Plaintiffs' second avenue for disclosure is provided by the common law as it presently exists in New Jersey. In Irval, the Supreme Court commented on a citizen's common law right to examine public records as follows:
Accord Nero v. Hyland, 76 N.J. at 221-222; Citizens For Better Ed. v. Bd. of Ed. Camden, 124 N.J. Super. at 528.
The common law right to inspect and examine is not curtailed by the Right To Know Law, N.J.S.A. 47:1A-1 et seq. Irval Realty, supra. A public record under common law is much broader than that under N.J.S.A. 47:1A-1 et seq. It has been defined as:
Josefowicz v. Porter, 32 N.J.Super. 585, 591 (App.Div. 1954), quoting 76 C.J.S., Records, § 1 at 112. See also, Nero v. Hyland, supra.
In the case at bar there can be no doubt the records sought are public records under the common law. Transcripts of proceedings before the executive committee of the Board of Medical Examiners which contain testimony concerning the
Also, it cannot be disputed that plaintiffs have a clear personal interest in examining the transcripts as an aid in preparing their liability claims for trial. The transcripts contain testimony concerning the care and treatment rendered to the decedent which is alleged to have contributed to her death.
Nonetheless, the existence of plaintiffs' interest does not provide an absolute right to the transcripts of proceedings, Nero v. Hyland, supra; Irval Realty, supra. Rather, a test has been developed which requires a judge to balance the public's interest in maintaining the confidentiality in the documents against plaintiffs' interest in examining them. Ibid.
The record indicates that pursuant to our instructions the trial judge examined the subject documents in camera, and without indicating the factors which he considered, found the State's interest in confidentiality to outweigh the plaintiffs' interest in examining them. We disagree.
It is apparent that plaintiffs' common law right to examine and inspect the documents is superior to the interest of the Board in maintaining its confidentiality. Clearly, the care and treatment rendered to plaintiff-decedent while a patient of the defendants forms the basis of her allegations in the civil complaint. Full discovery and disclosure of the care and treatment provided are essential to the preparation of this case, and in our view, would serve the ends of justice. The record reveals that the defendant, Dr. DeDios', testimony both before the Board and in deposition is inconsistent in certain respects. The transcript of his testimony before the Board contains substantive evidence and impeachment material directly concerning
The Attorney General argues that to permit disclosure of the documents would impair the efficiency of the Board in its investigative activities and would create a chilling effect on future licensee testimony before the Board. However, there is no evidence to suggest this possible result may occur, and, in any event, this purported justification is not sufficient to prevent disclosure in this case.
We agree with the reasoning of the trial judge in Lakewood Trust Co. v. Fidelity and Deposit Co., 81 N.J.Super. 329 (Law Div. 1963), who rebutted similar contentions upon holding:
Similarly, the Attorney General's reliance on our decisions in Greenspan v. State, 174 N.J.Super. 332 (App.Div. 1980), and River Edge Savings and Loan Ass'n v. Hyland, 165 N.J.Super. 540 (App.Div. 1979), certif. den. 81 N.J. 58 (1979), is misplaced. In both cases we recognized the long-standing privilege against disclosure of information in the possession of law enforcement officials concerning the existence or occurrence of criminal activities. While the privilege is not absolute, discovery will not be allowed unless the need from the standpoint of essentiality is supported by detailed findings.
Disclosure of investigative information in the possession of law enforcement officials is subject to the State's paramount interest in protecting witness security, the State's relationship with its informants and witnesses, and other confidential relationships. Also, the information is critical to the uncovering and prosecution of criminal offenses, and thus to effective law enforcement. As such, we held in River Edge Savings and Loan Ass'n, supra, that disclosure may only be had:
The vital public interest in confidentiality recognized in Greenspan v. State, supra, and River Edge Savings and Loan Ass'n v. Hyland, supra, is simply not present in the case at bar. The information plaintiffs seek does not place in jeopardy or weaken law enforcement. Plaintiffs merely seek licensee testimony before the Board of Medical Examiners relating directly to the medical care and treatment rendered to the decedent. As such, we find our decisions in Greenspan and
Moreover, we find it pertinent that the Attorney General has not cited any statutory or regulatory authority declaring the investigative materials of the Board of Medical Examiners to be privileged or confidential. Also, unlike Nero v. Hyland, supra, and Irval Realty v. Bd. of Pub. Util Commissioners, supra, the materials in the instant case have not been exempted by "... `executive order of the Governor' or `... by any regulation promulgated under the authority of any ... executive order of the Governor.' N.J.S.A. 47:1A-2." Irval Realty v. Bd. of Pub. Util. Commissioners, 61 N.J. at 371.
However, although the Attorney General does not direct us to statutory or regulatory authority declaring the Board's investigative materials to be privileged or confidential, we recognize the extreme sensitivity of the Board's interest and the potential for abuse by prospective plaintiffs filing complaints against physicians to utilize the Board and its investigative powers as an additional discovery vehicle. Each case requires an exquisite weighing process by the trial judge. In the instant case, we have considered the appropriate factors and having weighed the parties' competing interests, feel disclosure is necessary in this case, although not in every case. Here, it is clear that plaintiffs' common law right to examine and inspect the documents is superior to the interest of the Board in maintaining its confidentiality.
In support of our determination, we consider of utmost importance the fact that the decedent cannot testify concerning the incident in question. The decedent's subjective complaints, the physical examination performed, and the care and treatment rendered are peculiarly within the knowledge of the defendants. The record reveals that the defendants failed to maintain a patient record of the decedent setting forth her subjective complaints, objective findings, nature of treatment rendered and diagnosis of her physical condition. The failure
In this regard, our in camera inspection of Dr. DeDios' testimony before the Board, and our review of his trial deposition suggests inconsistencies in critical areas. The inconsistencies in the doctor's testimony relate directly to the decedent's condition both on arrival to the office and following the injection, as well as to the nature of the emergency treatment provided. As indicated, the transcripts of the doctor's testimony both before the Board and in trial deposition contains the only substantive evidence concerning the care and treatment rendered the decedent. Also, the transcripts may be utilized as an impeachment tool if, and when, he testifies. We further note that the public interest served by the Board's inquiry into the circumstances of plaintiff's death is parallel to the executor's interest in ascertaining the basis for a wrongful death and survival action. After all, the Board was created for the purpose of serving the public in the area of regulating the practice of medicine. Finally, it is noteworthy that the Board's assertion that to permit discovery would chill licensee testimony is dubious, especially where, as here, the licensee-defendant Bluestein argues that discovery in favor of plaintiffs should be granted.
As indicated, we do not intend our decision to be understood as granting a carte blanche right to discover the Board's investigative materials. Disclosure should only be permitted in exceptional cases. We limit our decision to situations
Accordingly, the trial judge's order denying disclosure is reversed, and the matter is remanded with the direction that an order be entered compelling the Board to produce the documents which are subject to the subpoena.
Reversed and remanded. We do not retain jurisdiction.