ORDERS:
ORDER ON SUBPOENA DUCES TECUM
I. Introduction
On February 26, 2002, an Anonymous Nurse’s (Nurse) actions involving a patient at Carolinas Hospital System (Carolinas) resulted in an “occurrence report” being completed by Carolinas. Since it is an employer of nurses, on March 21, 2002, Carolinas followed its statutory duty to report to the State Board of Nursing (Board) “any instances of the misconduct or the incapacities” of a nurse. S.C. Code Ann. § 40-33-970 (Supp. 2001). Based on that information, the Board began a confidential investigation which included serving Carolinas with a subpoena duces tecum on April 9, 2002.
The subpoena requested that Carolinas produce “[c]opies of statements, investigative reports and supporting documents, personnel records, training records, and administrative action records for [Anonymous Nurse].” Instead of complying with the subpoena, Carolinas offered to supply the information to the Board if the Board would consent to placing the information under a protective order limiting the use of the material solely to the Board’s investigation. The Board declined the offer and continued to press its subpoena.
In response, Carolinas filed with the ALJD a Motion to Quash or in the alternative, a Motion for Protective Order. On May 30, 2002, the ALJ issued an order directing Carolinas to provide the Board with all files and information which were within the scope of the subpoena’s request, but, for the time being, did not require providing the files and information made confidential pursuant to the Peer Review statute of S.C. Code Ann. § 40‑71‑20 (2001). After the Board received the compelled information, the Board was directed to decide if the documents of the Peer Review file were still needed.
Carolinas complied with the order by providing the required information to the Board on June 6, 2002, and again on June 19, 2002. However, on June 25, 2002, the Board determined that the supplied material was inadequate for the investigation. Therefore, the Board notified the ALJ and Carolinas that the information held in the Peer Review file was still required under the subpoena.
To assess the sensitivity and need for disclosure of the peer review file, the ALJ directed Carolinas to present the peer review file for an in camera inspection. In addition, Carolinas submitted two affidavits explaining the peer review procedure, one in general and a second in camera affidavit explaining the peer review procedure as applied to the instant case. The submitted materials have now been reviewed and this matter is ripe for decision.
II. Analysis
The Board may discipline nurses for “violation of the provisions of [Chapter 33] or of the regulations promulgated by the board.” S.C. Code Ann. § 40-33-930 (Supp. 2001). To determine if a violation has occurred, the Board is empowered to conduct investigations. S.C. Code Ann. § 40-33-220(B)(7) (Supp. 2001). The Board’s investigations include the power to “subpoenas witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry.” S.C. Code Ann. § 40‑33‑960 (2001).
Obviously, via the instant subpoena duces tecum, the Board sought to exercise its authority by requiring Carolinas to produce documents related to the Board’s investigation of Nurse. However, Carolinas argues that the documents in its Peer Review file cannot be disclosed since those files are confidential under S.C. Code Ann. § 40-71-20:
All proceedings of and all data and information acquired by the committee referred to in Section 40-71-10 in the exercise of its duties are confidential unless a respondent in the proceeding requests in writing that they be made public. These proceedings and documents are not subject to discovery, subpoena, or introduction into evidence in any civil action except upon appeal from the committee action. Information, documents, or records which are otherwise available from original sources are not immune from discovery or use in a civil action merely because they were presented during the committee proceedings nor shall any complainant or witness before the committee be prevented from testifying in a civil action as to matters of which he has knowledge apart from the committee proceedings or revealing such matters to third persons. Confidentiality provisions do not prevent committees appointed by the Department of Health and Environmental Control from issuing reports containing solely nonidentifying data and information.
All agree that Carolinas’ Peer Review Committee is a “committee referred to in Section 40-71-10" and that the “data and information acquired . . . in the exercise of its duties are confidential.” Given such, I find that the affidavit of Deborah Mills sufficiently establishes that the in camera documents identified as Peer Review 001 through 054 were acquired through the Peer Review Committee’s exercising of its duties. Thus, those documents are “confidential.”
However, declaring documents “confidential” does not necessarily prevent disclosure. Indeed, confidential information is information “meant to be kept secret.” Blacks Law Dictionary, 7th Edition, 1999. But, without a “privilege,” the possessor of the information can be legally compelled to disclose confidential information. See South Carolina State Bd. of Medical Examiners v. Hedgepath, 325 S.C. 166, 480 S.E.2d 724 (1997) (“The terms ‘privilege’ and ‘confidences’ are not synonymous, and a professional's duty to maintain his client's confidences is independent of the issue whether he can be legally compelled to reveal some or all of those confidences, that is, whether those communications are privileged.”). Thus, while confidential information must not be voluntarily disclosed, such disclosure can be “compelled by law (i.e., subpoena or statute).” Brown v. Bi‑Lo, Inc., 341 S.C. 611, 535 S.E.2d 445 (Ct.App. 2000), certiorari granted (May 23, 2001).
Therefore, other than the declaration that the files are confidential, nothing in S.C. Code Ann. § 40-71-20 (Supp. 2001) forbids disclosure to the Board as long as the Board seeks the information under its subpoena power (i.e. compels disclosure) and the subpoena is not issued in a “civil case.” Here, at this point, no “case” exists at all. Instead, only an investigation to determine if a violation of nursing standards has occurred. Such a use, when coupled with the need of the Board to protect the public from nurses who violate their duties (see for example, S.C. Code Ann. § 40‑1‑40 (2001) where Boards such as the Board of Nursing are designed to “protect the public through the regulation of professional and occupational licenses.”), allows disclosure to the Board via the subpoena duces tecum involved here.
III. Order
The subpoena duces tecum served by the Board on Carolinas shall not be quashed. Rather, the documents submitted for in camera review and identified as Peer Review 001 through 054 are not protected from disclosure since such documents have been sought by a subpoena issued under the Board’s subpoena authority.
The documents now in possession of the ALJ shall be returned to Carolinas along with this order and Carolinas shall provide such documents to the Board no later than twenty days from the date of this decision.
AND IT IS SO ORDERED.
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: August 6, 2002
Columbia, South Carolina
While not controlling, the disclosure decision here is fairly consistent with the general disclosure tenor of S.C. Code Ann. § 40-71-20. For example, disclosure is allowed when a “respondent in the proceeding” directs that the material be made public. Further, the statute implies that no prohibition exists on disclosure in a criminal matter since the “documents are not subject to discovery, subpoena, or introduction into evidence in any civil action.” (Emphasis added). Moreover, even as to a civil action, the documents are subject to discovery, subpoena, or introduction into evidence if the civil action results from an appeal of action taken by the committee.
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