On appeal from the Superior Court, Law Division, Hudson County.
Pressler, Brody and Cohen. The opinion of the Court was delivered by Pressler, P.J.A.D.
[198 NJSuper Page 452] The issue raised by this appeal is whether a state agency charged with the regulation of a profession has the right to
withhold from a professional whose conduct it has investigated the identity of the person whose complaint of unprofessional conduct caused the investigation. We hold that under the circumstances here the professional, after the conclusion of the investigation, has a right to the disclosure of the identity of the complainant and of the contents of the complaint.
It is undisputed that in March 1982 the New Jersey State Board of Dentistry received a telephone complaint from a person whose identity it refuses to disclose, accusing two oral surgeons who share an office, Joseph E. Grodjesk and Herbert B. Dolinsky, of violating Board regulations by permitting unauthorized employees to take x-rays and administer general anesthesia. The Board directed its Enforcement Bureau to investigate the complaint, and a formal investigative report was submitted to the Board in August 1983. The Board, after reviewing and considering the report in executive session, found no cause for action.
The dentists, having reason to believe that the complaint to the Board had been falsely and maliciously made by a disgruntled former employee, Theresa Faghani, instituted this malicious prosecution action against her, alleging that the lengthy and intensive investigation resulted in damage to their personal and professional reputations, their loss of patients, the impugning of their integrity and their suffering of anxiety and emotional distress. Plaintiffs' belief that defendant Faghani was responsible for the investigation was based on information they received from two of their employees, both of whom asserted that Faghani had told them of her intention to "get even" with plaintiffs and one of whom asserted that Faghani told her she had done so by making a complaint to the Board. Both of these employees made certifications attesting to these assertions. After institution of the action, plaintiffs deposed Faghani, who repeatedly testified that she had never made an accusation to the Board respecting plaintiff's unprofessional conduct either orally or in writing or on her own initiative or in response to an investigative interview. She also testified that the Board investigator
who had interviewed her during the course of the investigation had not made any promise or representation that her information would be kept confidential.
In view of Faghani's sworn denial of her complainant role, plaintiffs served subpoenas both upon the executive secretary of the Board and the Enforcement Bureau investigator who had conducted the investigation requiring them to attend depositions and to produce their records of the investigation, particularly the records pertaining to the identity of the complainant and the contents of the complaint. The Board moved to quash the subpoenas, and plaintiffs sought leave to appeal the order granting that relief. We granted leave and now reverse.
The basis of the trial judge's action in quashing the subpoenas was his conclusion that "the public interest in maintaining confidentiality clearly outweighs the countervailing need for discovery." Although we do not disagree with the methodology of balancing the private need for discovery with the public need for confidentiality, we are nevertheless satisfied that the trial judge did not correctly apply that test. In our view, the reasoning he relied on in reaching his conclusion was fundamentally flawed by the erroneous assumption that a complainant to a professional board has the same status and invokes the same public policy concerns as an informant who provides law enforcement agencies with information respecting criminal activity. We, however, regard the administrative complainant and the criminal-activity informant as separate and distinct categories invoking separate and distinct public policy considerations.
Our analysis proceeds from the proposition that every regulated professional, except an attorney at law, is accorded the right both by common law and by statute to seek redress against a person who falsely, maliciously and without probable cause makes a complaint of unprofessional conduct against him to the agency charged with the regulation of his profession. The common law right of action was recognized by Toft v.
Ketchum, 18 N.J. 280 (1955), aff'd on reargument 18 N.J. 611 (1955), cert. den. 350 U.S. 887, 76 S. Ct. 141, 100 L. Ed. 782 (1955), which concluded that public policy required that right to be withheld from attorneys. The legislative response to Toft v. Ketchum was the enactment in 1956 of N.J.S.A. 2A:47A-1 and 2, which in effect overruled that decision in respect of lawyers and confirmed the common law right of other ...