November 26, 1997
Mr. Fred M. Carmichael
Summrell, Sugg, Carmichael & Ashton P.A.
310 Broad Street
New Bern, North Carolina 28560
Re: Advisory Opinion; Public Records; N.C.G.S. § 132-1.3; Settlements made by or on behalf of public agencies, public officials, or public employees.
Dear Mr. Carmichael:
Thank you for your letter dated November 11, 1997 requesting an Advisory Opinion on whether settlement agreements in which the State (in this case a public hospital) is a party may be withheld from public inspection. Specifically, you asked if the Onslow County Hospital Authority is required to release the settlement agreement between it and Dr. Martin E. Schick in its entirety or with any confidential matters, as specified in the agreement or as provided by the confidentiality statutes, redacted.
As you are aware, the statute which governs in this case is N.C.G.S. § 132-1.3 (1995).
Public records, as defined in N.C.G.S. § 132-1, shall include all settlement documents in any suit, administrative proceeding or arbitration instituted against any agency of North Carolina government or its subdivisions, as defined in N.C.G.S. 132-1, in connection with or arising out of such agency’s official actions, duties or responsibilities, except in an action for medical malpractice against a hospital facility. No agency of North Carolina government or its subdivisions, nor any counsel, insurance company or other representative acting on behalf of such agency, shall approve, accept or enter into any settlement of any such suit, arbitration or proceeding if the settlement provides that its terms and conditions shall be confidential, except in an action for medical malpractice against a hospital facility. No settlement document sealed under subsection (b) of this section shall be open for public inspection. (emphasis added)
(b) No judge, administrative judge or administrative hearing officer of this State, nor any board or commission, nor any arbitrator appointed pursuant to the laws of North Carolina, shall order or permit the sealing of any settlement document in any proceeding described herein except on the basis of a written order concluding that (1) the presumption of openness is overcome by an overriding interest and (2) that such overriding interest cannot be protected by any measure short of sealing the settlement. Such order shall articulate the overriding interest and shall include findings of fact that are sufficiently specific to permit a reviewing court to determine whether the order was proper.
(c) Except for confidential communications as provided in N.C.G.S. § 132-1.1, the term "settlement documents," as used herein, shall include all documents which reflect, or which are made or utilized in connection with, the terms and conditions upon which any proceedings described in this section are compromised, settled, terminated or dismissed, including but not limited to correspondence, settlement agreements, consent orders, checks, and bank drafts.
The statute makes it clear that only medical malpractice cases are exempt from disclosure in settlements in which the State is a party. You state in your letter that this case does not involve medical malpractice. Therefore, the settlement agreement is a public record and must be released pursuant to N.C.G.S. § 132-1.3 in its unredacted form. The settlement agreement itself, through its "Restricted Disclosure Covenant" offers no protection to the information contained therein. In fact, it could be argued that the hospital was not authorized to enter into an agreement with such a provision and therefore, the entire agreement is null and void.
You next ask if those portions of the settlement agreement which contain information which is protected by the "confidentiality statutes" must also be released pursuant to N.C.G.S. § 132-1.3. In determining whether the "confidentiality statutes" protect information within the settlement agreement, we must look at each statute to see, specifically, what each is intended to protect.
N.C.G.S. § 131E-95 (Medical review committee) reads in pertinent part:
(b) The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public records within the meaning of N.C.G.S. § 132-1, "’Public records’ defined," and shall not be subject to discovery or introduction into evidence in any civil action against a hospital or a provider of professional health services which results from matters which are the subject of evaluation and review by the committee. No person who was in attendance at a meeting of the committee shall be required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or its members. However, information, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee. A member of the committee or a person who testifies before the committee may testify in a civil action but cannot be asked about his testimony before the committee or any opinions formed as a result of the committee hearings. (emphasis added)
This statute protects the proceedings of a medical review committee, the records and materials it produces and the materials it considers with the caveat that if the information is otherwise available, it is not immune from disclosure "merely because [it was] presented during the proceedings of the committee." Unless the settlement agreement itself was considered by the Medical Review Committee, it must be released in its unredacted form. Furthermore, any information previously protected by N.C.G.S. § 131E-95 which is included in the settlement agreement is now "otherwise available", and therefore, no longer immune from disclosure.
N.C.G.S. § 131E-97.2 (Confidentiality of credentialing information) reads:
Information acquired by a public hospital, as defined in N.C.G.S. § 159-39, a hospital that has been sold or conveyed pursuant to N.C.G.S. § 131E-8, a State-owned or State-operated hospital, or by persons acting for or on behalf of a hospital, in connection with the credentialing and peer review of persons having or applying for privileges to practice in the hospital is confidential and is not a public record under Chapter 132 of the General Statutes; provided that information otherwise available to the public shall not become confidential merely because it was acquired by the hospital or by persons acting for or on behalf of the hospital. (emphasis added)
This statute protects information acquired by a public hospital in connection with the credentialing and peer review of persons having or applying for privileges to practice in the hospital. Since the settlement agreement was not acquired in connection with the credentialing and peer review of Dr. Schick it is not protected by N.C.G.S. § 131E-97.2. Furthermore, any information previously protected by this statute which is included in the settlement agreement is now "otherwise available", and therefore, no longer immune from disclosure.
N.C.G.S § 131E-257.2 (Privacy of employee personnel records) reads in pertinent part: Notwithstanding the provisions of N.C.G.S § 132-6 or any other general or local act concerning access to public records, personnel files of employees and applicants for employment maintained by a public hospital are subject to inspection and may be disclosed only as provided by this section. For purposes of this section, an employee’s personnel file consists of any information in any form gathered by the public hospital with respect to an employee . . .
N.C.G.S. § 131E-257.2 protects only information "gathered by the hospital with respect to the employee." Unless the information included in the settlement agreement was first gathered by the hospital, it is not exempt under N.C.G.S. § 131E-257.2. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). Although Poole dealt with personnel files of State employees pursuant to N.C.G.S. § 126-22 et seq., the language of the two statutes is virtually identical and we believe Poole to be controlling on this issue.
In conclusion, based on the facts as presented, we believe that the settlement agreement between Dr. Schick and Onslow Hospital Authority must be released to the requestor in its unredacted form, except for information from Dr. Schick’s personnel file which was first gathered by the hospital. Should you have any further questions, please do not hesitate to contact this office.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
T. Brooks Skinner, Jr. Assistant Attorney General