The Health Care Authority for Baptist Health v. Central Alabama Radiation Oncology, LLC

          Appeal from Montgomery Circuit Court (CV-18-900710)

          MENDHEIM, JUSTICE.

         The Health Care Authority for Baptist Health, an affiliate of UAB Health Systems ("the Authority"), and Simeon F. Penton (hereinafter referred to collectively as "Baptist Health") appeal from a judgment of the Montgomery Circuit Court requiring Baptist Health to disclose certain documents to Central Alabama Radiation Oncology, LLC ("CARO"), under the auspices of the Alabama Open Records Act, §§ 36-12-40 and -41, Ala. Code 1975 ("ORA"). We affirm the judgment of the circuit court.

         I. Facts

         CARO is a Montgomery-area radiation-oncology practice consisting of four physicians. CARO provides radiation and oncology services at the Montgomery Cancer Center ("MCC"), a facility owned and operated by the Authority. The Authority and CARO executed a noncompetition agreement in May 2012. The noncompetition agreement provides, in part:

"During the Restricted Period, [the] Authority agrees for the benefit of [CARO at MCC], that it will not, indirectly or directly, employ or contract with physicians to provide radiation oncology services within 150 miles from any location within the greater Montgomery, Alabama area where [CARO] provides radiation oncology services. ... [The Authority] further agrees that it will not work with UAB Health System or University Hospital in Birmingham to recruit or employ radiation oncologists in the greater Montgomery, Alabama area."

         The noncompetition agreement also provided that the agreement could be terminated by either CARO or the Authority "upon six months' notice to the other parties" to the agreement.

         On October 3, 2017, the Authority submitted a letter of intent to file a certificate-of-need ("CON") application with the State Health Planning and Development Agency ("SHPDA"). The letter of intent indicated that the Authority sought to offer radiation-oncology services at the Prattville location of MCC. CARO alleges that it then attempted to persuade the Authority to use CARO physicians for radiation-oncology services at the Prattville location of MCC but that the Authority rebuffed CARO's overtures. In February 2018, the Authority filed its CON with SHPDA seeking permission to offer radiation-oncology services at MCC's Prattville location. On March 26, 2018, the Authority served upon CARO a written notice of termination of the noncompetition agreement.

         On April 18, 2018, CARO filed a "Notice of Intervention and Opposition" to the Authority's CON application. At least part of the reason CARO objected to the Authority's application was that CARO was in the process of developing a new radiation-oncology facility in Prattville. The facility would be known as Prattville Cancer Center, and CARO had broken ground and begun construction of the facility.^[1]

         Also on April 18, 2018, CARO filed in the Montgomery Circuit Court a "Complaint for Declaratory and Equitable Relief and Preliminary Injunction" against the Authority, in which CARO alleged that the Authority had breached the noncompetition agreement, and CARO sought enforcement of the noncompetition agreement. On the same date, CARO filed a motion for expedited discovery in which CARO argued that it needed an abbreviated discovery schedule in order to be adequately prepared for the hearing on a preliminary injunction.

         On April 19, 2018, CARO sent Penton, who is vice president and general counsel for the Authority, a letter "[p]ursuant to the Alabama Public Records Law," in which CARO requested "access to all documents, records, reports, statements, presentations, writings, filings, or records, of any kind, addressing, regarding, of, or related to radiation oncology, including, but not limited to, the use and/or expansion of radiation oncology services, over the past twenty-four (24) months." Additionally, CARO requested the minutes of the meetings of the Authority's Board from the previous two years ("the Board minutes"). After CARO received no response to the letter, it sent Penton a second letter on May 8, 2018, reiterating its requests and citing legal authority for the proposition that the Authority was subject to the ORA.

         On May 9, 2018, counsel for the Authority responded to CARO by letter, in which it sought clarification concerning CARO's request for the Board minutes because there appeared to be a discrepancy between CARO's request in its letters and its discovery requests in the filed action. In the letter, counsel for the Authority also cited legal authority for the proposition that CARO's ORA request exceeded the scope of the law.

         Also on May 9, 2018, the circuit court entered an order in which it noted that it had held a hearing on CARO's motion for expedited discovery but that after the hearing the circuit court had heard from the parties that they had "agreed to a plan allowing for mutual discovery." The circuit court therefore ruled that the motion for expedited discovery was moot.

         On May 24, 2018, CARO sent Penton a third letter reiterating its ORA documents requests. Following receipt of that letter, counsel for both parties arranged for CARO's counsel to conduct an in camera review of the Board minutes without redactions. During the first week of June 2018, counsel for CARO reviewed the Board minutes. In that inspection, CARO uncovered what it deemed to be a "concerning portion" of the minutes from a November 30, 2017, meeting of the Authority's Board:

"[Russell] Tyner [president and CEO of the Authority] proposed [to establish a radiation-oncology facility in Prattville]. He reported capital investment and estimated annual return for this undertaking. He stated that the larger strategy is to enter the regional Radiation Oncology market with low risk and reasonable market share; to effectively eliminate the current monopoly of Central Alabama Radiation Oncology (CARO), which should decrease the perceived and actual value of existing CARO operation; and to potentially create a scenario of cooperative integration."

(Emphasis added.)

         CARO asserts that the above-quoted portion of the minutes and others confirmed CARO's suspicion that the Authority was attempting to drive CARO out of business. A week after it had inspected the minutes, CARO requested copies of the Board minutes.

         In response, on June 13, 2018, counsel for the Authority sent CARO a letter requesting that CARO dismiss its action because, the Authority asserted, CARO's review of the Board minutes confirmed that the Authority had not breached the noncompetition agreement by recruiting or employing radiation oncologists to work at the Prattville location of MCC.

         On June 18, 2018, counsel for the Authority provided CARO with copies of the Board minutes that contained numerous redactions. CARO asserted that the redactions included information relating to arrangements with medical oncologists, the Medicare 340B program, ^[2] and the Authority's other proposed projects in the Prattville area. Counsel for the Authority contended that the remainder of the Board minutes and other documents CARO requested were "confidential and privileged and/or not subject to production under [the ORA]."

         On June 19, 2018, CARO filed an "Amended Complaint for Declaratory and Injunctive Relief" in the circuit court against the Authority and Penton, whom CARO believed to be the custodian of the Authority's records, that substituted an ORA claim in the place of all of CARO's previous claims pertaining to the breach of the noncompetition agreement. Specifically, CARO requested a judgment declaring that the Authority had violated the ORA, and it sought an injunction requiring the Authority and Penton to produce all the documents CARO had sought in past correspondence. CARO categorized those documents into two requests:

"[1] [T]he Radiation Oncologist request: '[A]ll documents, records, reports, statements, presentations, writings, filings, or records, of any kind, addressing, regarding, of, or related to radiation oncology, including, but not limited to, the use and/or expansion of radiation oncology services, over the past twenty-four (24) months.'

"[2] The Board Minutes Request: '[M]inutes from the last twenty-four (24) months of meetings of the Board of [the Authority].'"

         On June 29, 2018, CARO filed a "Motion for Preliminary and Final Injunction" in which it presented its arguments as to why the Authority was subject to the ORA and why its two documents requests were not protected by exceptions to the ORA.

         On July 3, 2018, Baptist Health filed a motion to dismiss both the allegations in the original complaint and the ORA claim in the amended complaint. Baptist Health contended that the allegations in the original complaint were due to be dismissed pursuant to Rule 41, Ala. R. Civ. P., for lack of prosecution. Baptist Health argued that the ORA claim should be dismissed because, it said, the Authority was not subject to the ORA. Additionally, Baptist Health argued that, even if the Authority was subject to the ORA, CARO's requests exceeded the scope of what the Authority should be required to produce under the ORA.

         On July 31, 2018, the circuit court held a hearing on the motions from both parties. On August 6, 2018, the circuit court entered an order granting CARO's ORA documents requests. Specifically, the circuit court concluded that,

"as a matter of law, [the Authority], as a health care authority created pursuant to the Health Care Authorities Act of 1982, Ala. Code [1975, ] § 22-21-310 et seq., is subject to the Open Records Act. See Tenn. Valley Printing Co. v. Health Care Auth. of Lauderdale County, 61 So.3d 1027 (Ala. 2010). Accordingly, [Baptist Health] must produce documents in response to CARO's requests."

         With respect to CARO's Board-minutes request, the circuit court concluded that the Authority had waived any objection to confidentiality by allowing CARO's counsel to view unredacted copies of the Board minutes. Accordingly, the circuit court ordered Baptist Health to produce "an unredacted copy of the entire set of previously disclosed Board Minutes." With respect to CARO's radiation-oncologist request, in accordance with arguments made by CARO's counsel at the July 31, 2018, hearing, the circuit court concluded that the second request would be somewhat more limited than originally described. Specifically, Baptist Health was ordered to produce

"the following documents created during the two-year period preceding the Open Records Act requests and related to radiation oncology ...