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No licensee “right to know” all details of investigation

A sanctioned physician did not have a right to board emails, phone records, and other information pertaining to his disciplinary proceeding, the Commonwealth Court of Pennsylvania ruled December 8. The court denied reconsideration of a sanctioned physician's request for access to the information under the state's Right-to-Know Law (Glunk v. Department of State).

Richard P. Glunk, licensed to practice by the state medical board, was found to have engaged in immoral conduct for attempting to influence a board member during a disciplinary matter. The disciplinary matter was dismissed, but the board sanctioned Glunk for his alleged immoral conduct, ordering a 60-day license suspension, a $5,000 civil penalty, and 50 hours of continuing education. In December 2010, Glunk’s motion to reopen the record was denied.

In 2012, Glunk filed twelve Right-to-Know Law (RTKL) requests for information regarding his disciplinary proceeding, including all emails, letters, phone records, notes, memos, and messages) to and from Mark Greenwald that referred to or involved Glunk in any way. Greenwald is a prosecuting attorney with the state Bureau of Enforcement and Investigation who advised the board on the case. Glunk sought the same information for eight other people.

Only request 9 in regard to the vacation times of the hearing examiner (but nothing else) was granted, authorizing disclosure by the state. The Department established that the other records were either exempt from disclosure or do not exist, the OOR said.

In his petition for review, Glunk said Heidi Barry, the Department’s open records’ officer “attested to a falsehood” in her affidavit or destroyed documents when claiming she could not locate any e-mails related to Glunk, while an administrator of the board did locate one such document. Glunk stated that this legitimately undermines Barry’s credibility.

The court, however dismissed the claim, stating, “The fact that [the administrator] located an e-mail chain when searching through a different set of documents than those that Barry reviewed does not tend to undermine Barry’s credibility or demonstrate any impropriety on her part.”

Furthermore, the court points out that the open records office accepted Barry’s affidavits as credible evidence, as was its right, as “the initial fact-finder.”

Glunk also contended that the OOR erroneously found that McKeever’s work calendar was “exempt as personal notes and working papers.” Glunk claimed that McKeever’s statements in her affidavit were “conclusory” and “insufficient,” and that her supervisor had access to the calendar.

Judge McCullough, however, found that McKeever explained the notes on her calendar in sufficient detail, specifically highlighting how statements illuminate the “personal nature” of her calendar and “include the times and locations of events, meetings, and hearings that she has to attend; leaves of absence that she has scheduled; work tasks that she has to complete; and personal reminders that are unrelated to her employment with the Department.” As personal notes, the calendar was exempt from disclosure, the judge found.

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The court said the essential issues in Glunk’s petition for review boiled down to four:

  • Does an act of bad faith invalidate all affidavits in opposition to an appeal of a requester by the Department’s open records officer?
  • Can the Department’s open records officer destroy incriminating emails in response to a Right to Know request?
  • Can an email chain containing a letter discussing the actions of the medical board ten months earlier and/or reply to the email be denied as a predecisional deliberation?
  • Is an appointment calendar that confirms other public information deniable under the state’s Right to Know law?

However, the items Glunk sought were either exempt from disclosure under an exception to the Right to Know law or do not exist, the court found.