Carter-Hubbard Publishing Co. v. WRMC Hospital Operating Corp.

CALABRIA, Judge,

concurring in part and dissenting in part.

I fully concur with the portion of the majority’s opinion dealing with plaintiff’s cross-assignments of error. However, I must respectfully dissent from the majority’s narrow interpretation of the scope of the “competitive health care information” exemption under N.C. Gen. Stat. § 131E-97.3 (2005), despite the absence of any words of limitation in the plain language of the applicable statute. Because N.C. Gen. Stat. § 131E-97.3 establishes that the General Assembly sought to place public and private hospitals on equal terms in negotiating con*630tracts containing any type of competitive health care information, my approach would be to interpret N.C. Gen. Stat. § 131E-97.3 more broadly to effectuate our Legislature’s intent.

Under the Public Records Act, our Legislature has generally granted liberal access to public records. See, e.g., Knight Publ’g v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 489, 616 S.E.2d 602, 605 (2005). Thus, “[i]n the absence of [a] clear statutory exemption or exception, documents falling within the definition of ‘public records’ in the Public Records Act must be made available for public inspection.” Id. (citation and internal brackets omitted) (emphasis added). See also N.C. Gen. Stat. §§ 132-1(b), 132-6 (2005) (defining public records as “the property of the people” and allowing examination of public records).

Our Legislature has created a clear statutory exemption from the definition of “public record” for what it refers to as “competitive health care information”:

Information relating to competitive health care activities by or on behalf of hospitals and public hospital authorities shall be confidential and not a public record under Chapter 132 of the General Statutes-, provided that any contract entered into by or on behalf of a public hospital or public hospital authority, as defined in G.S. 159-39, shall be a public record unless otherwise exempted by law, or the contract contains competitive health care information[.]

N.C. Gen. Stat. § 131E-97.3 (2005).

In this case of first impression, we are asked to consider the scope of “competitive health care information.” Defendant argues the contract at issue amounts to “competitive health care information.” In support of this argument, defendant produced, inter alia, an affidavit of the President and Chief Operating Officer of WRMC, Ted Chapin (“Chapin”). Chapin stated,

If a private provider were allowed to have access to the terms and conditions of the contracts of a public hospital such as WRMC, the private provider would have a substantial competitive advantage when negotiating for physician practices based on having superior information. If the substantive provisions of an existing contract were available to a different physician practice during subsequent negotiations, WRMC would be at a competitive disadvantage during the negotiations. Essentially, WRMC would be *631negotiating against itself, based upon its prior contracts. By contrast, a private health care provider which does not have to disclose the contents of its contracts would not be constrained during negotiations by any of the terms in prior or existing contracts.

Plaintiff counters, via its affidavit of Julius C. Hubbard, Jr. (“Hubbard”), the Vice President of Carter-Hubbard, that:

If public funds are utilized to purchase a physician’s practice, the public has the right to know how those funds are being spent. Year-end profits and losses of Wilkes Regional Medical Center will certainly be influenced by the expenditure of funds for acquisition of physician’s practices and the public has a right to know how those funds have been spent. To hide behind the guise of “competitive health care information” as justification for providing that information is to deprive the citizens of Wilkes County . . . information to Which they are justly entitled.

In order to interpret our Legislature’s intent, it is necessary to begin with the plain language of the statute. State v. Hooper, 358 N.C. 122, 125, 591 S.E.2d 514, 516 (2004) (“Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning”) (citations omitted). The plain language of the statute exempts from the term “public record” contracts that include “competitive health care information.” “Competitive” is derived from the term “competition.” “Competition” means “[t]he effort or action of two or more commercial interests to obtain the same business from third parties.” Blacks Law Dictionary 7th Edition (1999). “Healthcare” means “[t]he prevention, treatment, and management of illness and the preservation of well-being through the services offered by the medical and allied health professions.” The American Heritage College Dictionary 3rd Edition (1997).

Pursuant to the plain language of the statute, I would hold the contract at issue amounts to “competitive health care information.” The contract relates to “healthcare” in that the purchase of Dr. Cirillo’s private practice ensured the “prevention, treatment, and management” of gastroenterological services to Wilkes County residents. Likewise, the agreement is “competitive” in that public and private hospitals commonly compete in the marketplace to obtain physician practices. The contract remains “competitive” even in the absence of specific evidence in the record that hospitals were directly competing for Dr. Cirillo’s particular practice because of the impact *632the release of the specific terms of the contract would have on future negotiations of WRMC by placing WRMC in an inferior negotiating position for health care services compared to private hospitals. Thus, the contract at issue is within the scope of the exemption stated in N.C. Gen. Stat. § 131E-97.3.

This plain language analysis is further supported by the history of N.C. Gen. Stat. § 131E-97.3. See Cochran v. North Carolina Farm Bureau Mut. Ins. Co., 113 N.C. App. 260, 262, 437 S.E.2d 910, 911-12 (1994) (noting it is appropriate to consider “circumstances surrounding the enactment of the act with an eye towards the evil sought to be remedied when determining the legislative intent”).

A prior version of this statute read:

Information relating to competitive health care activities by or on behalf of hospitals shall be confidential and not a public record under Chapter 132 of the General Statutes; provided that any contract entered into by or on behalf of a public hospital, as defined in G.S. 59-39, shall be a public record unless otherwise exempted by law. ■

N.C. Gen. Stat. § 131E-97.3 (1994) (emphasis added).

Under this prior version of the statute, this Court held,

The plain language of this section exempts certain information from the Public Records Act when two requirements are met: (1) The material must relate to competitive health care; and (2) the material must not be a contract executed with a public hospital.

Wilmington Star News, Inc. v. New Hanover Regional Medical Center v. PHP, Inc., 125 N.C. App. 174, 178-79, 480 S.E.2d 53, 55 (1997) (emphasis added). Thus, under the prior version of this statute, if a contract was “entered into ... by or on behalf of a public hospital” it would be considered a public record, unless otherwise exempted. N.C. Gen. Stat. § 131E-97.3 (1994).

In a case analyzing the prior version of the statute, this Court held that price lists in a contract between a public hospital and a private HMO were subject to disclosure under the North Carolina Public Records Act. Wilmington Star News, Inc., 125 N.C. App. at 179, 480 S.E.2d at 55. Because the price lists were included in a contract executed with a public hospital, under the plain language of *633the prior statute, the price lists were not exempt from the Public Records Act. Id.

At the time of the Wilmington case, the Legislature had already enacted N.C. Gen. Stat. § 131E-99 of the Hospital Licensure Act, entitled “Confidentiality of health care contracts.” Ch. 713, 1995 N.C. Sess. Laws 345. The version in effect at the time of the Wilmington case stated:

The financial terms or other competitive health care information in a contract related to the provision of health care between a hospital and a managed care organization, insurance company, employer, or other payer is confidential and not a public record under Chapter 132 of the General Statutes.

Ch. 713, 1995 N.C. Sess. Laws 345 (emphasis added). However, this Court was unable to rely on N.C. Gen. Stat. § 131E-99 in the Wilmington case because, at the time, N.C. Gen. Stat. § 131E-99 “specifically provided that [it shall] not affect any litigation pending prior to ratification on 21 June 1996 and shall expire on 1 June 1997.” Wilmington Star News, Inc., 125 N.C. App. at 178, 480 S.E.2d at 55.

Subsequently, in 1997, the Legislature amended § 131E-99 to read:

The financial terms and other competitive health care information directly related to the financial terms in a health care services contract between a hospital or a medical school and a managed care organization, insurance company, employer, or other payer is confidential and not a public record under Chapter 132 of the General Statutes.

An Act Pertaining to Confidentiality of Healthcare Contracts, ch. 123, 1997 N.C. Sess. Laws 238 (emphasis added). The Legislature also removed the expiration date set forth in the earlier version. See ch. 123, 1997 N.C. Sess. Laws 238. Accordingly, as of May 1997, contracts between public hospitals and private HMOs were exempt from disclosure under this separate provision.

In 2001, the Legislature amended § 131E-97.3 to its current version. N.C. Gen. Stat. § 131E-97.3 (2005). Prior to the amendment, all contracts of public hospitals constituted public records unless otherwise exempted. N.C. Gen. Stat. § 131E-97.3 (1994). As stated previously, contracts between public hospitals and HMOs were already exempt under the separate provision of N.C. Gen. Stat. § 131E-99. However, the Legislature amended the statute to also exempt con*634tracts of public hospitals that contain “competitive health care information.” N.C. Gen. Stat. § 131E-97.3.

Amicus Curiae North Carolina Press Association (“Press Association”) argues that exemptions to the Public Records Act must be narrowly construed and that “ ‘competitive health care information’ as used by the General Assembly reaches only financial information that relates directly to the provision of health care services on a competitive basis to HMOs and similar entities.” While I agree with the Press Association’s contention that generally our courts interpret exemptions to the Public Records Act narrowly, I disagree with the Press Association regarding our Legislature’s intent in using the term “competitive health care information.” If our Legislature intended to give information categorized as “competitive health care information” this narrow meaning, it would be redundant to enact N.C. Gen. Stat. § 131E-97.3 since this particular exemption already existed in N.C. Gen. Stat. § 131E-99. See State v. Benton, 276 N.C. 641, 658, 174 S.E.2d 793, 804 (1970) (“It is always presumed that the [Legislature acted with care and deliberation and with full knowledge of prior and existing law” (citations omitted)).

To the contrary, the plain language of these statutes indicates that they are not equivalent. North Carolina General Statute § 131E-99 is a narrow statute that enumerates specific financial terms and other competitive health care information relating to financial terms as exempt from public record status. Pursuant to N.C. Gen. Stat. § 131E-99, only contracts between certain enumerated entities are exempt and the information at issue must be financial terms or other competitive health care information directly related to financial terms in a “health care services contract.” On the other hand, N.C. Gen. Stat. § 131E-97.3 states no limitations on either the parties to the contract (except that the contract must be by or on behalf of a public hospital or public hospital authority) or the type of contract, and there is no evidence in the language of the statute or our review of the scant legislative history that our Legislature intended to include these constraints. If the Legislature intended to include such constraints it would have done so explicitly as it did when it changed the language of N.C. Gen. Stat. § 131E-99 from “financial terms or other competitive health care information in a contract...” to “financial terms and other competitive health care information directly related to the financial terms[.]" (Emphasis added). Because of the absence of any of the constraints our Legislature included in other statutory exemptions, I would hold that “competitive health care information” in-*635eludes all contracts that “relat[e] to competitive health care activities” by or on behalf of a public hospital or public hospital authority. N.C. Gen. Stat. § 131E-97.3(a). See also Gibbons v. Cole, 132 N.C. App. 777, 780, 513 S.E.2d 834, 836 (1999) (“[Our courts] are without power to create provisions and limitations not contained in the language of the statute itself’ (citation omitted)).

For reasons previously mentioned, I would hold that the purchase of a medical practice is a competitive health care activity, and thus, the contract at issue is “competitive health care information.” In contrast, other hospital contracts such as a pure construction contract would not amount to a contract regarding competitive health care information because a construction contract does not directly relate to “[t]he prevention, treatment, and management of illness and the preservation of well-being through the services offered by medical and allied health professions.” The American Heritage College Dictionary 3rd Edition (1997). For the foregoing reasons, I would remand to the trial court for entry of summary judgment in favor of defendant.