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Dr. J.K. Champion says he never would have consented to an order detailing his past abuse of drugs and alcohol had he known it would appear on the Internet. He sued the Georgia Composite State Board of Medical Examiners in Fulton Superior Court, seeking a declaratory judgment that publication on the Internet violates the consent order he entered into in April 1995. He claimed invasion of privacy and violation of due process and equal protection rights, and contended that such publication constitutes ex post facto punishment. Champion also sought an injunction prohibiting the medical board from disseminating or publishing the order. But Superior Court Judge John J. Goger issued an order April 9, saying, in effect: tough luck. Noting that the Georgia Open Records Act requires public access to the record, Goger ruled against Champion’s motion for an injunction and granted the defense motion to dismiss. However, the judge also addressed and dismissed each of Champion’s contentions in detail. Champion v. The Georgia Composite State Board of Medical Examiners, No. 00CV26375 (Fult. Super. April 9, 2001). Atlanta-based Gray, Hedrick & Edenfield’s Bruce M. Edenfield, who represents the medical board, says the issues Champion raised in his suit could have affected the ability of public and quasi-public agencies to disseminate information using new technology. Champion, he said, didn’t seem to mind his record being public; he just didn’t want it to be too readily available. “Public is public,” Edenfield says. “I’m glad the judge thought the issues were serious enough to address individually.” The case reaffirms the right of public and quasi-public agencies to disseminate public records on the Internet. Most open records laws were written at a time when access might have required waiting in a downtown state office building while a clerk searched for files; lawmakers never envisioned that anyone would be able to call up such documents on a home or office computer. While the doctor argued essentially that the Internet makes records more accessible than open records laws ever intended, the judge didn’t buy it. If there were ever any doubt, the decision would seem to open the way for the state to place sensitive documents on the Internet. Ironically, Georgia actually ranks very low in the overall accessibility of public documents on the Internet. The consumer watchdog group Public Citizen awarded Georgia an “F” for access to doctors’ discipline records on the Internet. It ranked in the bottom 6 percent of states that offer information over the Internet. APPEAL FILED Lawyer Stephen M. Katz, who represented Champion, has filed a notice of appeal to the Georgia Court of Appeals. He did not return a phone call seeking comment on Goger’s order. The Daily Report also tried to contact Champion through his answering service late Tuesday afternoon, but a representative from Champion’s office said the doctor would be performing surgeries all day Wednesday and would be unavailable for comment. According to Champion’s Web site, www.drchampion.com, he is a specialist in gastrointestinal surgery, including weight-loss surgery. In his order Goger notes that Champion is not challenging the public availability of his record but the board’s decision to make the record’s existence known over the Internet. “In its simplest form, the Plaintiff’s objection is not to ‘the production’ of the Consent Order, but rather to the means by which this public Consent Order is made available to the public,” Goger noted in his order. According to the judicial order, in 1987 Champion voluntarily entered a residential program for drug and alcohol addiction. In 1992 he had a relapse, became “unable to practice medicine,” and entered another inpatient drug and alcohol treatment center in Georgia. When Champion petitioned the Georgia medical board for a license in 1994, the board initially turned him down, citing his history of substance abuse. But on appeal in 1995 the board agreed to grant Champion a probationary license, with the condition that he agree to a consent order that would be a public document. Champion is no longer on probation, and now has no restrictions on his ability to practice medicine in Georgia. He holds staff privileges at three Atlanta hospitals and one in Canton, and he is clinical professor of surgery at Mercer University in Macon, Ga. However, he claims in his suit that the continuing publication of notice about his consent order on the Internet has cost him business and patients. In his order Goger says that Champion’s claims are not entirely accurate. The actual text of the consent order is not available on the medical board’s Web site. “Rather, the Medical Board’s Web site only evidences the fact that there exists a public order involving the Plaintiff and then states ‘contact Board for more info,’ ” the judge wrote. DISCIPLINE INFORMATION ELSEWHERE The Georgia Web site actually reveals little about doctor discipline compared to similar Internet sites in some other states. The Web site for the Alabama Board of Medical Examiners indicates Champion has faced discipline. And the Tennessee State Medical Board goes even further, noting that the doctor received four years of probation from 1994 and 1997 for “unprofessional, dishonorable or unethical conduct, and habitual intoxication or personal misuse of drugs, intoxicating liquors, etc. in such manner as to adversely affect his ability to practice medicine.” Edenfield says that even if the board did decide to publish the entire text of the consent order online, Champion’s claim still would be meritless. “Legally, my impression is that shouldn’t make any difference,” he says. The order is public, he says, which means it is available for public review. PROBLEMS WITH CLAIM The public availability of the consent order is the first problem Goger notes with Champion’s claim. The order, he wrote, is “undisputedly, a public record.” What’s more, he wrote, Champion agreed to the order being made public, and thereby waived his privacy rights. “With this knowledge the Plaintiff voluntarily entered into this Consent Order, and only now objects to it being released to the public,” he wrote. The judge also noted that the procedure by which Champion obtained his license protected his due process rights. While the board’s initial decision was to deny Champion a license outright, following a full hearing, Champion did receive a probationary license. “The Consent Order and the probationary period provided to the Plaintiff strikes a careful balance between insuring the safety and welfare of the public and protecting the Plaintiff’s property right in a medical license,” he wrote. Patients that Champion wishes to treat are entitled to know about the doctor’s drug and alcohol history before they decide to go to him for treatment, Goger wrote. “The Medical Board has an interest and a duty to balance the rights of the applicant or licensed professional with the responsibility of providing the public with appropriate information to make an informed decision regarding their healthcare,” he wrote. Goger also dismissed Champion’s claim that the continuing availability of the order constitutes ex post facto punishment, noting that Champion was not being punished for committing a crime, and no law inflicting punishment on him had changed. However, the judge wrote, the question of disseminating the consent order on the Internet raises a related issue: “The issue this Court must determine is whether the Consent Order can be made available via the Internet when this means of publication was not available at the time the Consent Order was entered into by the parties. That is, does the substantial increase in the Medical Board’s dissemination of the Consent order subject the Plaintiff to ex post facto punishment?” Relying on Simmons v. State, 753 So. 2nd 762 (Fla. App. 2000), Goger also notes that continuing to make the order available does not, as Champion charges, constitute ex post facto punishment. In the Florida case, a convicted child molester argued that he never would have entered a guilty plea had he known that state law would require him to submit a digital photo for posting on the Internet. The court ruled that the statute requiring the photo was retroactive, but did not constitute punishment. Goger agreed, pointing out that the Supreme Court of Georgia’s Web site publishes a list of attorneys who have been disciplined, whether the lawyers agree to the material’s publication or not. And the secretary of state’s office allows users to search its databases for all licensed professionals. “Therefore, if this Court were to entertain the Plaintiff’s claim of ex post facto punishment in this case, this Court would open a ‘Pandora’s Box’ of potential claims by individuals seeking to have their agreed-upon public record removed from the Internet,” he wrote.

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