Pharmacy Law: Are Pharmacy Board Investigative Records Confidential?

When a patient makes a formal request for an entire investigative file relating to a pharmacist, does the law allow it to be released?

Issue of the Case

When a patient files a complaint with the state board of pharmacy alleging that a pharmacist refused to honor his valid prescription and then 7 months later files a request under the state’s Public Information Act to obtain a copy of the file covering the investigation of matter, may that board of pharmacy refuse to release the information in its investigative file?

Facts of the Case

A patient in a southwestern state had a prescription refused, and he objected to that decision, leading to the filing of a formal complaint with the licensing agency with jurisdiction over the professional who made that judgment. The patient subsequently made a formal request for the entire investigative file relating to that pharmacist. The board in turn requested a legal opinion from the state Attorney General addressing the issue of whether the files were confidential by law and, therefore, not subject to release. This action was dictated by a state statute, which directed that a governmental agency that receives a written request for information that it would like to withhold as an exception to the statute’s general rule that information maintained by a public agency is to be released must seek a ruling from the state’s chief law enforcement official.

The interpretation from the Office of the Attorney General was that the information in the file was “generally confidential under a provision in the state’s pharmacy practice act.” This meant that, in the view of the Attorney General, the provision in the pharmacy act trumped that coverage of the Public Information Act. Continuing on, however, the opinion concluded that the board of pharmacy could not withhold the patient’s own prescription record. The reasoning on that point was that a prescription was a “medical record” subject to the state’s Medical Practice Act. That statute dictated that medical records were to be available to a requestor if proper consent had been secured.

The board of pharmacy then filed suit against the Office of the Attorney General to challenge the interpretation as it related to the patient’s prescription information. The goal was to have a court address the issue rather than a state administrative office, the Office of the Attorney General. Both parties, the board and the Attorney General, made motions that the trial court judge reviewing the matter and interpreting the various statutes enter a summary judgment in its favor. The trial court judge granted the motion of the board, ruling that the prescription record is exempt from disclosure under the Public Information Act. The Attorney General took exception to that interpretation and took the matter to the state Court of Appeals, asking that the decision of the trial court judge be overruled.

The Court's Ruling

The appellate court ruled in favor of the board of pharmacy, upholding the lower court’s decision, concurring that the prescription record is not subject to disclosure under the Public Information Act.

The Court's Reasoning

The court began by emphasizing that this was a case involving statutory construction. The primary objective of such a task is to determine the intent of the legislature when it enacted the statute. Consequently, close attention must be paid to the wording of the 2 statutes that appeared to be in conflict, the Public Information Act and the Pharmacy Practice Act. Also in the mix were the relevant provisions of the Medical Practice Act.

The court focused on the provisions in the open records law that were relied on by the Office of the Attorney General in reaching the conclusion that the patient’s prescription records should be released to him. The court’s review of that wording led it to a different conclusion. In the view of the appellate judges, the plain wording of the statute was not consistent with the Attorney’s General’s interpretation.

Attention was then focused on the wording of the Pharmacy Practice Act, the basis for the board’s position that the information could not be released. The court emphasized the role of the agency in protecting the public health, safety, and welfare. It noted that the investigatory privilege provisions were designed to protect the integrity of the board’s regulatory processes. Indeed, there is an almost identical provision in the state’s Department of Health statute, and the Attorney General had issued an opinion that an individual could not access information about himself under that statute. It concluded that the board had 2 bases for withholding the requested information—protecting the integrity of investigations and protecting the privacy interests of individuals.

The conclusion of the appellate court was that there was no right of access under either the Public Information Act or the Medical Practice Act. The Pharmacy Practice Act prevailed in categorizing the information as confidential.

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.