Kirk M. Smith Vs. Iowa Board Of Medical Examiners ( 2007 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 110 / 04-2026
    Filed April 6, 2007
    KIRK M. SMITH,
    Appellee,
    vs.
    IOWA BOARD OF MEDICAL EXAMINERS,
    Appellant.
    Appeal from the Iowa District Court for Polk County, Joel D. Novak,
    Judge.
    The Iowa Board of Medical Examiners appeals a district court
    decision ordering it to cease dissemination of the Board’s denial of a
    physician’s license. AFFIRMED.
    Thomas J. Miller, Attorney General, and Theresa O’Connell Weeg,
    Assistant Attorney General, for appellant.
    Michael M. Sellers of Sellers Law Office, West Des Moines, for
    appellee.
    Michael A. Giudicessi of Faegre & Benson L.L.P., Des Moines, for
    amicus curiae Iowa Freedom of Information Council.
    2
    Rebecca A. Brommel and Catherine C. Cownie, of Brown, Winick,
    Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for
    amicus curiae Iowa Dental Association.
    3
    WIGGINS, Justice.
    The Iowa Board of Medical Examiners appeals from a district court
    decision ordering the Board to cease dissemination of its denial of a
    physician’s license. On appeal the Board argues the district court should
    not have heard this case because the physician failed to timely file his
    petition for judicial review. The Board further argues if the petition was
    timely filed, the denial of the physician’s license was a public record that
    the Board was entitled to disseminate. On appeal we find if the Board
    disseminated the denial of the physician’s license as alleged by the
    physician, the dissemination is other agency action. Therefore, we agree
    with that part of the district court decision finding the physician timely filed
    his petition for judicial review. We also affirm the district court decision
    ordering the Board to cease any dissemination of the denial of the
    physician’s license because the Board failed to provide an adequate
    appellate record for our review.
    I. Background Facts and Proceedings.
    Dr. Kirk M. Smith graduated from the University of Iowa College of
    Medicine in 1999. After graduation the University of Missouri at Kansas
    City, Truman Medical Center accepted him into its two-year family practice
    residency program. Due to some problems he experienced in the program,
    the University of Missouri allowed Smith to take a medical leave of absence
    for a psychiatric disorder. After treatment for his disorder Smith was ready
    to return to his residency program. However, the University of Missouri
    determined it would be better if Smith transferred to another residency
    program for his second year.
    Smith applied to the University of Iowa’s family practice residency
    program for his second year of residency. The University of Iowa accepted
    4
    him into the program. In preparing to enter the program Smith applied to
    the Board for an Iowa resident physician license to practice medicine and
    surgery.
    On November 16, 2001, the Board denied Smith’s application. Smith
    timely appealed the denial. The Board held a hearing on the appeal. On
    April 26, 2002, the Board granted Smith his resident physician license
    subject to restrictions. In the decision granting his license the Board denied
    Smith’s request that the Board rescind its notice to the National
    Practitioner’s Data Bank (NPDB) reflecting the November 16, 2001, denial of
    his resident physician license application. Instead the Board indicated,
    “[a]n entry will be added to the Data Bank which explains that the license
    application was granted following an appeal hearing.” The parties did not
    make the transcript of the appeal hearing available to the district court or to
    this court. We have no record before our court showing how Smith raised
    the NPDB entry issue at the appeal hearing, what evidence the parties
    introduced regarding the NPDB entry, or how each party argued the
    propriety of the NPDB entry.
    After the Board issued its decision to grant Smith a restricted resident
    physician license the attorney general’s office filed an application for
    rehearing. The parties did not provide the application for rehearing to the
    district court or to this court.    The Board denied the application for
    rehearing without any explanation as to the issues raised or the reasons for
    its denial. Accordingly, we have no record of the matters raised by the
    attorney general’s office in its application for rehearing.
    On July 29, 2002, Smith filed a request for partial rescission of his
    license denial with the Board. The request for partial rescission contained
    no mention of any dissemination of the license denial. On October 8 the
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    Board denied Smith’s request for rescission. Three days later Smith filed a
    demand for rescission of his license denial with the Board. Smith amended
    this demand for rescission of his license denial. Among other things, Smith
    claimed the Board’s notification of his resident physician license denial to
    the NPDB was untimely because the Board released the information after
    the denial, but prior to the running of the thirty-day appeal period. See
    
    Iowa Admin. Code r. 653
    —12.32(2)(b)(2) (1999) (stating a party may appeal
    a proposed decision “within thirty days after service of the proposed
    decision on the appealing party”). 1
    On November 19 the Board denied Smith’s demand to rescind all
    entries sent by the Board to the NPDB. The Board affirmatively stated:
    Upon review of the records in this matter it was determined
    that to date, the Board has made no reports to the NPDB in
    this matter. At the time of the denial of licensure in this
    matter, the NPDB did not accept reports of denial of original
    licensure. The Board did file a report as required with the
    Federation of State Medical Boards (FSMB) on February 19,
    2002, more than ninety days after [Smith]’s November 16,
    2001, Appeal and Request for Hearing in this matter.
    On December 18 Smith sought judicial review of the Board’s
    November 19 denial of his amended demand for rescission.                       He later
    amended his request for judicial review. In this amended request Smith
    petitioned the district court to review: (1) the Board’s denial of his resident
    physician license application; (2) the Board’s subsequent denials of his
    applications for rescission; and (3) the Board’s failure to refer his case to the
    Iowa Physician’s Health Program.
    1On   July 19, 2006, the Board rescinded 653 Iowa Administrative Code chapter 12
    and replaced it with 653 Iowa Administrative Code chapters 22-26. 
    29 Iowa Admin. Bull. 114
    -15 (July 19, 2006). The thirty-day appeal period applicable to a person in Smith’s
    position is now located in rule 653—25.30. See 
    Iowa Admin. Code r. 653
    —25.30 (2006)
    (stating “[a]n applicant may appeal a preliminary notice of denial of license by filing a
    written notice of appeal and request for hearing with the board within 30 days of the date
    that the preliminary notice of denial of license was mailed by the board”).
    6
    The Board filed a motion to dismiss. The district court granted the
    Board’s motion in part, dismissing Smith’s request for the court to review
    the denial of his resident physician license application. The district court
    overruled the Board’s motion to dismiss the remainder of the issues. The
    Board moved to amend the district court’s ruling. The district court revised
    its ruling and in addition to dismissing Smith’s request for review of the
    denial of his license application, it dismissed Smith’s request for review of
    the Board’s failure to refer his case to the Iowa Physician’s Health Program.
    Thus, only Smith’s request to review the Board’s denials of his applications
    for rescission was subject to judicial review.
    The district court held a hearing on the matter on October 29, 2004.
    A court reporter reported the proceedings. The parties did not make a
    transcript of the proceedings a part of this appellate record. The district
    court ruling states the court considered the parties’ written arguments in
    deciding this case.     However, the parties did not make the written
    arguments a part of the district court or appellate court record.
    In its ruling on the petition for judicial review the district court
    framed the issue before it as whether the Board should stop publishing the
    November 16, 2001, denial of Smith’s license. In its ruling the district court
    stated Smith’s arguments as follows:
    [Smith] is requesting that [the Board] be estopped from
    continuing to disseminate its pre-hearing determination as
    though it were a final finding or ruling. [Smith] has requested
    that [the Board] be ordered to retract or rescind all its notices
    to the State Federation of State Medical Boards and to all
    hospitals, medical boards and insurance companies or data
    banks for insurance or health facilities or any other entity that
    has received the original denial. [Smith] requests that the
    Court require that [the Board] report to the Court every entity
    that has received the original denial and certify[ ] to the Court
    and [Smith] that every entity has been affirmatively notified
    that the denial has been withdrawn. [Smith] claims that the
    protection of the Court is needed because counsel for the State
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    has stated in open court [the] intent of the State and [the
    Board] is to advise all future inquirers about [the Board]’s
    original position.
    The district court stated the Board’s arguments as follows:
    [The Board] argues that the original Notice of Denial was
    a public record under 
    Iowa Code § 22.1
     (2003), that states that
    all information in the State’s possession is a public record
    unless exempt under 
    Iowa Code § 22.7
     or designated by
    another statute as confidential. In addition, [the Board] argues
    that [Smith]’s request for rescission is impractical and of no
    effect because [the Board]’s final decision contains all the
    information in the original notice of denial. [The Board]
    concedes that the original Notice of Denial was not a final
    decision.
    The district court found the denial of Smith’s license on November 16,
    2001, to be “pre-final decision material.” Accordingly, it ruled under Iowa
    Administrative Code rule 653—12.32(2)(c) and Iowa Code section 272C.6(4)
    (2001) the Board was required to cease dissemination of any “pre-final
    decision material” involving Smith. The district court ruled it could not
    appropriately address the other remedies Smith requested in his action for
    judicial review.
    II. Issues.
    The Board appeals raising two issues. First, the Board claims Smith
    failed to timely file his petition for judicial review; therefore, the district
    court should not have heard his petition. Second, the Board claims its
    November 16, 2001, denial of Smith’s license was a public record; therefore,
    it could disseminate the denial.
    III. Analysis.
    A. Timeliness Issue. The Iowa Administrative Procedure Act broadly
    classifies agency action as involving rulemaking, a contested case, or other
    agency action. Sindlinger v. Iowa State Bd. of Regents, 
    503 N.W.2d 387
    , 389
    (Iowa 1993). Neither party contends the Board’s action is rulemaking. To
    8
    decide the timeliness issue it is necessary for us to determine whether the
    Board’s action is a contested case or other agency action. This is because
    the type of agency action controls when a party must file a petition for
    judicial review.
    Smith filed his petition for judicial review more than thirty days after
    the denial of his request for partial rescission of his license denial. The
    Board claims the district court should not have heard Smith’s petition for
    judicial review because the Board’s action was a contested case proceeding.
    The Board relies on section 17A.19(3), which requires a party seeking
    judicial review from a contested case to file a petition for judicial review
    within thirty days after the agency denies an application for rehearing. Iowa
    Code § 17A.19(3).
    Smith claims the Board disseminated the November 16, 2001, denial
    of his license and argues this dissemination, the only issue left on appeal, is
    other agency action. If the Board’s action is other agency action, the Iowa
    Administrative Procedure Act allows Smith to file his petition for judicial
    review “at any time [he] is aggrieved or adversely affected by that action.”
    Id.
    The Code defines a contested case as a proceeding “in which the legal
    rights, duties or privileges of a party are required by Constitution or statute
    to be determined by an agency after an opportunity for an evidentiary
    hearing.” Iowa Code § 17A.2(5); accord Brummer v. Iowa Dep’t of Corr., 
    661 N.W.2d 167
    , 171-72 (Iowa 2003); Greenwood Manor v. Iowa Dep’t of Pub.
    Health, 
    641 N.W.2d 823
    , 833-35 (Iowa 2002); Paulson v. Iowa Bd. of Med.
    Exam’rs, 
    592 N.W.2d 677
    , 679 (Iowa 1999). Other agency action is action
    that is neither rulemaking nor a contested case. Greenwood Manor, 
    641 N.W.2d at 834
    .      Accordingly, agency action taken without a hearing
    9
    required by a statute or constitution or action taken after a required hearing
    that does not rise to the level of an evidentiary hearing is other agency
    action. 
    Id.
    The narrow issue decided by the district court and presented to us on
    appeal is whether the Board should be able to disseminate the
    November 16, 2001, denial of Smith’s license. The Board does not contend
    there is any statutory or constitutional provision requiring it to hold a
    hearing prior to the time Smith claims the Board disseminated the
    November 16, 2001, denial of his license.        Accordingly, if the Board
    disseminated this denial as claimed by Smith, the alleged dissemination is
    other agency action and not a contested case. Therefore, the district court
    properly heard Smith’s petition for judicial review on the question of
    whether the Board could disseminate its November 16, 2001, denial of his
    license.
    B. Dissemination. The Board claims the district court erred when it
    ordered the Board to cease dissemination of its November 16, 2001, denial
    of Smith’s license. The Board argues this denial of Smith’s license was a
    public record that the Board was entitled to disseminate. On our review of
    the record, we find the record insufficient to decide this issue.
    The appellate record does not include the transcript of the hearing
    before the Board regarding the license denial, the transcript of the hearing
    before the district court where the parties tried the issue of dissemination,
    or the briefs of the parties used by the district court to decide the
    dissemination issue. The Board could have made the transcripts and its
    brief a part of the appellate record. See Iowa R. App. P. 6.10(2) (requiring
    the appellant to order the transcript); Iowa R. Civ. P. 1.442(4) (stating that
    10
    briefs other than those in a summary judgment proceeding cannot be filed
    unless by order of the court).
    The Board’s combined certificate acknowledges it did not order the
    transcript. The Board only filed the first page of its brief in the district
    court. The Board did not request an order allowing it to file its entire brief.
    It was the Board’s responsibility as appellant to provide this court with a
    sufficient record to decide this appeal. See In re F.W.S., 
    698 N.W.2d 134
    ,
    135 (Iowa 2005) (holding “[i]t is the appellant’s duty to provide a record on
    appeal” and “[t]he court may not speculate as to what took place or
    predicate error on such speculation”).
    A multitude of statutes controls the dissemination of this type of
    information. Iowa Code chapter 22 generally pertains to the public’s right
    to examine public records. 
    Iowa Code § 22.2
    (1), (2). Iowa Code chapter
    272C covers the authority of licensing boards to license individuals and
    contains specific provisions regarding the disclosure of certain licensing
    information to other licensing bodies and law enforcement agencies. 
    Id.
    § 272C.6(4). Iowa Administrative Code chapter 653 contains the Board’s
    public records and fair information practices, adopted by the Board as
    instructed by Iowa Code section 22.11.          These rules pertain to the
    disclosure of the Board’s licensing records to the public. Iowa Admin. Code
    rs. 653—2.1-2.17. Congress has also established laws pertaining to the
    disclosure of licensing records by state boards of medical examiners. 
    42 U.S.C. § 11132
    .
    The appellate record contains no information, other than what is
    contained in the district court’s ruling, as to what, when, where, and to
    whom the Board may have disseminated or intended to disseminate the
    November 16, 2001, denial of Smith’s license. The district court’s recitation
    11
    of these matters in its ruling is not a substitute for the required appellate
    record.
    The information as to what, when, where, and to whom the Board
    may have disseminated or intended to disseminate the November 16, 2001,
    denial of Smith’s license is necessary in order for us to apply the various
    statutes to the multiple disclosures as alleged by Smith. Consequently,
    without knowing this critical information, we are unable to review the
    district court’s determination on this issue. Therefore, we must affirm the
    decision of the district court. Alvarez v. IBP, Inc., 
    696 N.W.2d 1
    , 4 (Iowa
    2005) (stating where an appellant fails to provide a proper record on appeal
    the decision of the trial court will be affirmed where its judgment is not
    fundamentally erroneous on its face).
    IV. Disposition.
    Because the alleged dissemination of Smith’s November 16, 2001,
    license denial is other agency action, Smith timely filed his petition for
    judicial review. However, we will not reach the merits of the Board’s appeal
    because it failed to provide us with a sufficient record to perform an
    appellate review of the district court decision. Therefore, we affirm the
    judgment of the district court.
    AFFIRMED.
    All justices concur except Streit and Appel, JJ., who take no part.