Opinion:State ex rel. Okla. State Bd. of Medical Licensure and Supervision v. Rivero, 2021 OK 31
Subject matter:Protective orders; Open Records Act and Discovery Code
Date Decided:June 2, 2021
Trial Court:N/A 
Route to this Court:Appeal from the Oklahoma State Board of Medical Licensure and Supervision retained by the OKSCT on its own motion. 
Facts:During a disciplinary proceeding wherein the complaint against the physician was ultimately dismissed, a stipulated protective order was entered by the Board covering all documents in the proceeding. Subsequently, the physician that was the subject of the disciplinary proceeding filed suit against the doctor who allegedly filed the complaint, alleging that the complaint was not made in good faith. Some two years after the conclusion of the disciplinary proceeding, the subject physician requested that the Board modify the protective order to allow the physician to use certain documents in the legal proceeding he had filed against the other physician in the District Court for Tulsa County. The District Court granted the doctor’s motion to compel the Board with the requested records, but the Board sought extraordinary relief before the Oklahoma Supreme Court to prevent enforcement of the District Court’s discovery order. The Court stayed the enforcement of the discovery order pending resolution of this matter. Appellant also filed multiple unsuccessful requests under the Open Records Act for the records he sought and ultimately filed a motion with the Board to modify the protective order. The Board denied the motion to modify the protective order and this proceeding is the appeal of the Board’s order denying the motion. 
Standard of Review:Review of a final agency order under the Oklahoma Administrative Procedures Act. 59 O.S. § 513.Great weight is accorded the expertise of an administrative agency in the subject-matter the agency supervises and a presumption of validity attaches to the exercise of this expertise. However, the Board does not supervise the administration of the Open Records Act. The Court reviews interpretations of statutes as a question of law, subject to the Court’s plenary, independent and non-deferential examination standard applying a de novo standard of review. 
Analysis:The Appellant’s motion to modify the Board’s protective order identified three items that Appellant requested the Board remove from the coverage of the protective order- two deposition transcripts and Appellant’s Motion for Summary Judgment with exhibits attached. None of these items were filed with the Board under seal or marked as confidential. These records were not created for the Board’s investigation and the rule-based confidentiality for an investigative file is not applicable. 
“When a court record is turned into a confidential record, an agreement by parties to request confidentiality as to a public court record is not without statutory limits due to the Open Records Act…We have recognized a strong public policy allowing access to public records which includes records used by courts to adjudicate legal controversies.” 
“…the Open Records Act and Oklahoma Discovery Code work together to create a limitation upon the exercise of quasi-judicial discretion by the Board in an individual proceeding with the Board attempts to use a protective order to remove documents or information from the official record.” 
A protective order making “all documents” in an administrative proceedings subject to the order and prohibiting the documents from being used in any other legal proceeding is contrary to public policy expressed by the Oklahoma Open Records Act and the Oklahoma Discovery Code. 
Outcome:Reversed and remanded with instructions to modify the protective order to allow the Appellant to use the properly redacted documents in other proceedings. 
Vote:8-0. Opinion by Edmondson, J.; Concur: Darby, C.J., Winchester, Combs, Gurich and Rowe, JJ.; Concur in Result: Kane, V.C.J. and Kauger, J.
Other: Appellant included in his briefs at the Court an argument that he must also be provided a copy of the initial report of misconduct filed against him. However, the record does not reflect that he included this request in his motion to modify the protective order filed with the Board. Therefore, the Appellant’s failure to obtain a copy of the initial report cannot be subject to a first-instance judicial review in this appeal.