               IN THE SUPREME COURT OF IOWA
                           No. 110 / 04-2026

                           Filed April 6, 2007

KIRK M. SMITH,

      Appellee,

vs.

IOWA BOARD OF MEDICAL EXAMINERS,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Joel D. Novak,

Judge.



      The Iowa Board of Medical Examiners appeals a district court

decision ordering it to cease dissemination of the Board’s denial of a

physician’s license. AFFIRMED.



      Thomas J. Miller, Attorney General, and Theresa O’Connell Weeg,

Assistant Attorney General, for appellant.


      Michael M. Sellers of Sellers Law Office, West Des Moines, for

appellee.



      Michael A. Giudicessi of Faegre & Benson L.L.P., Des Moines, for

amicus curiae Iowa Freedom of Information Council.
                                  2

     Rebecca A. Brommel and Catherine C. Cownie, of Brown, Winick,

Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for

amicus curiae Iowa Dental Association.
                                       3

WIGGINS, Justice.

      The Iowa Board of Medical Examiners appeals from a district court

decision ordering the Board to cease dissemination of its denial of a

physician’s license. On appeal the Board argues the district court should

not have heard this case because the physician failed to timely file his

petition for judicial review. The Board further argues if the petition was

timely filed, the denial of the physician’s license was a public record that

the Board was entitled to disseminate. On appeal we find if the Board

disseminated the denial of the physician’s license as alleged by the

physician, the dissemination is other agency action. Therefore, we agree

with that part of the district court decision finding the physician timely filed

his petition for judicial review. We also affirm the district court decision

ordering the Board to cease any dissemination of the denial of the

physician’s license because the Board failed to provide an adequate

appellate record for our review.

      I. Background Facts and Proceedings.

      Dr. Kirk M. Smith graduated from the University of Iowa College of

Medicine in 1999. After graduation the University of Missouri at Kansas
City, Truman Medical Center accepted him into its two-year family practice

residency program. Due to some problems he experienced in the program,

the University of Missouri allowed Smith to take a medical leave of absence

for a psychiatric disorder. After treatment for his disorder Smith was ready

to return to his residency program. However, the University of Missouri

determined it would be better if Smith transferred to another residency

program for his second year.

      Smith applied to the University of Iowa’s family practice residency

program for his second year of residency. The University of Iowa accepted
                                      4

him into the program. In preparing to enter the program Smith applied to

the Board for an Iowa resident physician license to practice medicine and

surgery.

      On November 16, 2001, the Board denied Smith’s application. Smith

timely appealed the denial. The Board held a hearing on the appeal. On

April 26, 2002, the Board granted Smith his resident physician license

subject to restrictions. In the decision granting his license the Board denied

Smith’s request that the Board rescind its notice to the National

Practitioner’s Data Bank (NPDB) reflecting the November 16, 2001, denial of

his resident physician license application. Instead the Board indicated,

“[a]n entry will be added to the Data Bank which explains that the license

application was granted following an appeal hearing.” The parties did not

make the transcript of the appeal hearing available to the district court or to

this court. We have no record before our court showing how Smith raised

the NPDB entry issue at the appeal hearing, what evidence the parties

introduced regarding the NPDB entry, or how each party argued the

propriety of the NPDB entry.

      After the Board issued its decision to grant Smith a restricted resident
physician license the attorney general’s office filed an application for

rehearing. The parties did not provide the application for rehearing to the

district court or to this court.    The Board denied the application for

rehearing without any explanation as to the issues raised or the reasons for

its denial. Accordingly, we have no record of the matters raised by the

attorney general’s office in its application for rehearing.

      On July 29, 2002, Smith filed a request for partial rescission of his

license denial with the Board. The request for partial rescission contained

no mention of any dissemination of the license denial. On October 8 the
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Board denied Smith’s request for rescission. Three days later Smith filed a

demand for rescission of his license denial with the Board. Smith amended

this demand for rescission of his license denial. Among other things, Smith

claimed the Board’s notification of his resident physician license denial to

the NPDB was untimely because the Board released the information after

the denial, but prior to the running of the thirty-day appeal period. See

Iowa Admin. Code r. 653—12.32(2)(b)(2) (1999) (stating a party may appeal

a proposed decision “within thirty days after service of the proposed

decision on the appealing party”). 1

       On November 19 the Board denied Smith’s demand to rescind all

entries sent by the Board to the NPDB. The Board affirmatively stated:

       Upon review of the records in this matter it was determined
       that to date, the Board has made no reports to the NPDB in
       this matter. At the time of the denial of licensure in this
       matter, the NPDB did not accept reports of denial of original
       licensure. The Board did file a report as required with the
       Federation of State Medical Boards (FSMB) on February 19,
       2002, more than ninety days after [Smith]’s November 16,
       2001, Appeal and Request for Hearing in this matter.

       On December 18 Smith sought judicial review of the Board’s

November 19 denial of his amended demand for rescission.                       He later

amended his request for judicial review. In this amended request Smith

petitioned the district court to review: (1) the Board’s denial of his resident

physician license application; (2) the Board’s subsequent denials of his

applications for rescission; and (3) the Board’s failure to refer his case to the

Iowa Physician’s Health Program.


       1On   July 19, 2006, the Board rescinded 653 Iowa Administrative Code chapter 12
and replaced it with 653 Iowa Administrative Code chapters 22-26. 29 Iowa Admin. Bull.
114-15 (July 19, 2006). The thirty-day appeal period applicable to a person in Smith’s
position is now located in rule 653—25.30. See Iowa Admin. Code r. 653—25.30 (2006)
(stating “[a]n applicant may appeal a preliminary notice of denial of license by filing a
written notice of appeal and request for hearing with the board within 30 days of the date
that the preliminary notice of denial of license was mailed by the board”).
                                      6

      The Board filed a motion to dismiss. The district court granted the

Board’s motion in part, dismissing Smith’s request for the court to review

the denial of his resident physician license application. The district court

overruled the Board’s motion to dismiss the remainder of the issues. The

Board moved to amend the district court’s ruling. The district court revised

its ruling and in addition to dismissing Smith’s request for review of the

denial of his license application, it dismissed Smith’s request for review of

the Board’s failure to refer his case to the Iowa Physician’s Health Program.

Thus, only Smith’s request to review the Board’s denials of his applications

for rescission was subject to judicial review.

      The district court held a hearing on the matter on October 29, 2004.

A court reporter reported the proceedings. The parties did not make a

transcript of the proceedings a part of this appellate record. The district

court ruling states the court considered the parties’ written arguments in

deciding this case.     However, the parties did not make the written

arguments a part of the district court or appellate court record.

      In its ruling on the petition for judicial review the district court

framed the issue before it as whether the Board should stop publishing the
November 16, 2001, denial of Smith’s license. In its ruling the district court

stated Smith’s arguments as follows:

             [Smith] is requesting that [the Board] be estopped from
      continuing to disseminate its pre-hearing determination as
      though it were a final finding or ruling. [Smith] has requested
      that [the Board] be ordered to retract or rescind all its notices
      to the State Federation of State Medical Boards and to all
      hospitals, medical boards and insurance companies or data
      banks for insurance or health facilities or any other entity that
      has received the original denial. [Smith] requests that the
      Court require that [the Board] report to the Court every entity
      that has received the original denial and certify[ ] to the Court
      and [Smith] that every entity has been affirmatively notified
      that the denial has been withdrawn. [Smith] claims that the
      protection of the Court is needed because counsel for the State
                                      7
      has stated in open court [the] intent of the State and [the
      Board] is to advise all future inquirers about [the Board]’s
      original position.

      The district court stated the Board’s arguments as follows:

             [The Board] argues that the original Notice of Denial was
      a public record under Iowa Code § 22.1 (2003), that states that
      all information in the State’s possession is a public record
      unless exempt under Iowa Code § 22.7 or designated by
      another statute as confidential. In addition, [the Board] argues
      that [Smith]’s request for rescission is impractical and of no
      effect because [the Board]’s final decision contains all the
      information in the original notice of denial. [The Board]
      concedes that the original Notice of Denial was not a final
      decision.

      The district court found the denial of Smith’s license on November 16,

2001, to be “pre-final decision material.” Accordingly, it ruled under Iowa

Administrative Code rule 653—12.32(2)(c) and Iowa Code section 272C.6(4)

(2001) the Board was required to cease dissemination of any “pre-final

decision material” involving Smith. The district court ruled it could not

appropriately address the other remedies Smith requested in his action for

judicial review.

      II. Issues.

      The Board appeals raising two issues. First, the Board claims Smith
failed to timely file his petition for judicial review; therefore, the district

court should not have heard his petition. Second, the Board claims its

November 16, 2001, denial of Smith’s license was a public record; therefore,

it could disseminate the denial.

      III. Analysis.

      A. Timeliness Issue. The Iowa Administrative Procedure Act broadly

classifies agency action as involving rulemaking, a contested case, or other

agency action. Sindlinger v. Iowa State Bd. of Regents, 503 N.W.2d 387, 389

(Iowa 1993). Neither party contends the Board’s action is rulemaking. To
                                      8

decide the timeliness issue it is necessary for us to determine whether the

Board’s action is a contested case or other agency action. This is because

the type of agency action controls when a party must file a petition for

judicial review.

      Smith filed his petition for judicial review more than thirty days after

the denial of his request for partial rescission of his license denial. The

Board claims the district court should not have heard Smith’s petition for

judicial review because the Board’s action was a contested case proceeding.

The Board relies on section 17A.19(3), which requires a party seeking

judicial review from a contested case to file a petition for judicial review

within thirty days after the agency denies an application for rehearing. Iowa

Code § 17A.19(3).

      Smith claims the Board disseminated the November 16, 2001, denial

of his license and argues this dissemination, the only issue left on appeal, is

other agency action. If the Board’s action is other agency action, the Iowa

Administrative Procedure Act allows Smith to file his petition for judicial

review “at any time [he] is aggrieved or adversely affected by that action.”
Id.
      The Code defines a contested case as a proceeding “in which the legal

rights, duties or privileges of a party are required by Constitution or statute

to be determined by an agency after an opportunity for an evidentiary

hearing.” Iowa Code § 17A.2(5); accord Brummer v. Iowa Dep’t of Corr., 661

N.W.2d 167, 171-72 (Iowa 2003); Greenwood Manor v. Iowa Dep’t of Pub.

Health, 641 N.W.2d 823, 833-35 (Iowa 2002); Paulson v. Iowa Bd. of Med.

Exam’rs, 592 N.W.2d 677, 679 (Iowa 1999). Other agency action is action

that is neither rulemaking nor a contested case. Greenwood Manor, 641

N.W.2d at 834.      Accordingly, agency action taken without a hearing
                                      9

required by a statute or constitution or action taken after a required hearing

that does not rise to the level of an evidentiary hearing is other agency

action. Id.

      The narrow issue decided by the district court and presented to us on

appeal is whether the Board should be able to disseminate the

November 16, 2001, denial of Smith’s license. The Board does not contend

there is any statutory or constitutional provision requiring it to hold a

hearing prior to the time Smith claims the Board disseminated the

November 16, 2001, denial of his license.        Accordingly, if the Board

disseminated this denial as claimed by Smith, the alleged dissemination is

other agency action and not a contested case. Therefore, the district court

properly heard Smith’s petition for judicial review on the question of

whether the Board could disseminate its November 16, 2001, denial of his

license.

      B. Dissemination. The Board claims the district court erred when it

ordered the Board to cease dissemination of its November 16, 2001, denial

of Smith’s license. The Board argues this denial of Smith’s license was a

public record that the Board was entitled to disseminate. On our review of
the record, we find the record insufficient to decide this issue.

      The appellate record does not include the transcript of the hearing

before the Board regarding the license denial, the transcript of the hearing

before the district court where the parties tried the issue of dissemination,

or the briefs of the parties used by the district court to decide the

dissemination issue. The Board could have made the transcripts and its

brief a part of the appellate record. See Iowa R. App. P. 6.10(2) (requiring

the appellant to order the transcript); Iowa R. Civ. P. 1.442(4) (stating that
                                      10

briefs other than those in a summary judgment proceeding cannot be filed

unless by order of the court).

      The Board’s combined certificate acknowledges it did not order the

transcript. The Board only filed the first page of its brief in the district

court. The Board did not request an order allowing it to file its entire brief.

It was the Board’s responsibility as appellant to provide this court with a

sufficient record to decide this appeal. See In re F.W.S., 698 N.W.2d 134,

135 (Iowa 2005) (holding “[i]t is the appellant’s duty to provide a record on

appeal” and “[t]he court may not speculate as to what took place or

predicate error on such speculation”).

      A multitude of statutes controls the dissemination of this type of

information. Iowa Code chapter 22 generally pertains to the public’s right

to examine public records. Iowa Code § 22.2(1), (2). Iowa Code chapter

272C covers the authority of licensing boards to license individuals and

contains specific provisions regarding the disclosure of certain licensing

information to other licensing bodies and law enforcement agencies. Id.

§ 272C.6(4). Iowa Administrative Code chapter 653 contains the Board’s
public records and fair information practices, adopted by the Board as
instructed by Iowa Code section 22.11.          These rules pertain to the

disclosure of the Board’s licensing records to the public. Iowa Admin. Code

rs. 653—2.1-2.17. Congress has also established laws pertaining to the

disclosure of licensing records by state boards of medical examiners. 42

U.S.C. § 11132.

      The appellate record contains no information, other than what is

contained in the district court’s ruling, as to what, when, where, and to

whom the Board may have disseminated or intended to disseminate the

November 16, 2001, denial of Smith’s license. The district court’s recitation
                                     11

of these matters in its ruling is not a substitute for the required appellate

record.

      The information as to what, when, where, and to whom the Board

may have disseminated or intended to disseminate the November 16, 2001,

denial of Smith’s license is necessary in order for us to apply the various

statutes to the multiple disclosures as alleged by Smith. Consequently,

without knowing this critical information, we are unable to review the

district court’s determination on this issue. Therefore, we must affirm the

decision of the district court. Alvarez v. IBP, Inc., 696 N.W.2d 1, 4 (Iowa

2005) (stating where an appellant fails to provide a proper record on appeal

the decision of the trial court will be affirmed where its judgment is not

fundamentally erroneous on its face).

      IV. Disposition.

      Because the alleged dissemination of Smith’s November 16, 2001,

license denial is other agency action, Smith timely filed his petition for

judicial review. However, we will not reach the merits of the Board’s appeal

because it failed to provide us with a sufficient record to perform an

appellate review of the district court decision. Therefore, we affirm the
judgment of the district court.

      AFFIRMED.

      All justices concur except Streit and Appel, JJ., who take no part.
