BOARD OF MEDICINE. REPORT OF BOARD OF MEDICINE'S PSYCHIATRIC ADVISORY COMMITTEE MUST BE DISCLOSED TO SUBJECT IF USED AS BASIS FOR LlCENSURE DECISION.

November 15, 1983

The Honorable George J. Carroll,
Secretary-Treasurer, State Board of Medicine

83-84 19

You have asked whether the Board of Medicine must reveal the report of its Psychiatric Advisory Committee (the "PAC") to the subject of the report when the Board anticipates considering the report in a disciplinary hearing involving the subject before the Board. Specifically, you have questioned whether the subject of such report has a statutory or constitutional right to the contents of the report in light of the provisions of § 54-317.5 of the Code of Virginia, the Privacy Protection Act, § 2.1-377 et seq. and the Freedom of Information Act, § 2.1-340 et seq.

The PAC is appointed pursuant to § 54-291.1 "to examine persons licensed . . . and advise the Board concerning the mental or emotional condition of such person when his mental or emotional condition is in issue before the Board." Section 54-291.1 also grants every PAC member immunity from civil liability resulting from any communication, finding, opinion, or conclusion made in the course of his duties as a member of that committee, absent bad faith or malicious intent. Accordingly, assuming the absence of bad faith or malicious intent, the disclosure of the contents of the PAC report to its subject will not result in civil liability to members of the PAC, and § 54-291.1 provides no basis to justify withholding such report.

Section 54-317.5 mandates the confidentiality of reports, information, or records received and maintained by the Board of Medicine in connection with possible disciplinary proceedings; however, that statute also lists a number of specific instances in which such information may be disclosed, one of which is during a disciplinary hearing before the Board. See § 54-317.5(1). Therefore, § 54-317.5(1) gives the Board the discretionary authority to release such report in a disciplinary hearing.

Turning to the question of whether the Virginia Freedom of Information Act prohibits disclosure of the PAC report to its subject, that Act mandates disclosure of certain information and exempts other information from its mandatory disclosure requirements. That information which is not required to be disclosed under the Act may be disclosed under it, however. Accordingly, I am of the opinion that the Virginia Freedom of information Act does not prevent the disclosure of the PAC report to its subject and that no violation of that Act would result should such a disclosure occur.

Turning next to the question of whether the Privacy Protection Act prohibits the disclosure of the PAC report to its subject, the Privacy Protection Act provides that agencies maintaining personal information systems may disseminate only that personal information permitted or required by law to be so collected, maintained, used, or disseminated or necessary to accomplish a proper purpose of the agency. See § 2.1-380(1). Although the report of the PAC may fail within the definition of personal information found at § 2.1-379, the personal information system maintained by the Board of Medicine is specifically excluded from the provisions of that Act. Section 2.1-384(5). Thus, the Privacy Protection Act does not restrict the dissemination of the PAC report.

It is well-settled that the Fourteenth Amendment to the Constitution of the United States prohibits states from taking property without due process of law. In the broadest sense, due process requires general notice and a meaningful opportunity to be heard. Bowens v. N.C. Dept. of Human Resources, 710 F.2d 1015 (4th Cir. 1983). The revocation of a license or imposition of discipline may invoke property rights. Accordingly, in order to satisfy the requirements of due process, the Board should afford the physician who is the subject of a formal disciplinary hearing access to evidentiary material in its possession which will be considered by the Board when it makes its determination. Because the content of the PAC report is such evidentiary material, it should be provided to its subject. See Dick v. United States, 339 F.Supp. 1231 (D.D.C. 1972).

I am, therefore, of the opinion that the contents of the PAC report must be disclosed to the subject if it is to be considered by the Board as grounds for disciplinary action and that such disclosure is not forbidden by statute. The same conclusion would follow with respect to information verbally transmitted to the Board by the members of the PAC.