Doe v. Maryland Board of Social Work Examiners

CATHELL, Judge. This case raises issues as to the extent of the privilege, and confidentiality of records, in respect to conversations between licensed social workers and their clients and the records of the social worker when there is an alleged unlawful failure on the part of the certified private social worker to report suspected child abuse by a client and the Board of Social Work Examiners thereafter seeks to subpoena the social worker’s treatment records of clients pursuant to its investigation into the licensing of the social worker. ¹⁶⁶ On or about July 20, 2001, the Board of Social Work Examiners (hereinafter “the Board”), received a complaint that Ms. F, 1 a licensed social worker, 2 had failed to report John Doe’s suspected child abuse as required by law. 3 The complaint attached various newspaper articles referencing John Doe, a former client of Ms. F. According to the articles, John Doe was convicted in June 2001 of child abuse and third degree sex offenses involving his minor granddaughter. That abuse was not reported to the appropriate authorities by the licensed social worker. 4 Obviously concerned with the social worker’s failure to report the abuse, the Board initiated an investigation into the matter on September 25, 2001, and, as part of that investigation related to the licensing of the social worker, thereafter ¹⁶⁷ issued a subpoena duces tecum to Ms. F, dated April 25, 2002, for the complete treatment records she had for the year 1998 of Jane and John Doe, petitioners, who were her clients. The purpose of the subpoena was to investigate the conduct of the social worker and not that of petitioners.

On May 9, 2002, in response to the subpoena, petitioners filed a “Motion to Seal Record” and a “Motion to Quash Subpoena” in the Circuit Court for Baltimore City. On August 23, 2002, the circuit court entered an Order granting petitioners’ “Motion to Seal Record” but denying petitioners’ “Motion to Quash Subpoena.” On August 28, 2002, petitioners filed a “Notice of Intent to Appeal” the decision of the circuit court in regard to the motion to quash the subpoena. On October 1, 2002, the circuit court issued an Order granting a stay in the enforcement of the subpoena pending petitioners’ appeal to the Court of Special Appeals. On October 10, 2003, during the pendency of the appeal, and nearly a year-and-a-half after the subpoena was issued, the Board entered into a “Consent Order” with Ms. F. In the Consent Order, Ms. F agreed to be subjected to disciplinary measures by the Board for varying violations of Title 19 of the Health Occupations Article, including her failure to notify the appropriate authorities of specific suspected child abuse.

The Consent Order, by its terms, recognized the pendency of petitioners’ appeal and stated that the Board would not be precluded from taking further action against Ms. F if, after it obtained petitioners’ treatment records via the subpoena, it found that Ms. F had committed additional violations of Title 19. 5 On appeal, the intermediate appellate court affirmed the judgment of the circuit court, holding, after a thorough analysis, that petitioners “have neither a statutory nor a constitutional right to quash the subpoena at issue.” 6 Doe v. Mary ¹⁶⁸ land Board of Social Workers, 154 Md.App. 520, 542 , 840 A.2d 744, 757 (2004). Petitioners thereafter filed a Petition for Writ of Certiorari to this Court and on May 14, 2004, we granted the petition. Doe v. Social Workers, 381 Md. 324 , 849 A.2d 473 (2004). In their brief, petitioners present two questions for our review: “1.

Whether the Court of Special Appeals incorrectly held that an administrative agency’s subpoena, issued without cause, can overcome health care privileges expressly created by the legislature? 2. Whether the Court of Special Appeals incorrectly affirmed the Circuit Court’s determination that the State’s interest in obtaining Petitioners’ therapy records outweighed Petitioners’ constitutional privacy interest in preventing disclosure?” We hold that where the Legislature has specifically provided a health agency such as the Board with the power to issue subpoenas for the purposes of investigating allegations that one of its licensees committed serious violations of her professional duties, the social worker — client privilege existing under Md.Code (1973, 1998 Repl.Vol.), § 9-121(b) of the Courts and Judicial Proceedings Article must yield to such an investigation. We further hold that petitioners’ alleged constitutional privacy rights in the subpoenaed treatment records are not absolute. The interest of the public in having the conduct of a licensed social worker, accused of having violated her statutory duties, thoroughly investigated and, if appropriate, properly disciplined, outweighs the individual privacy interests of petitioners.

We shall affirm the judgment of the Court of Special Appeals. Discussion A.) Confidentiality and Social Worker — Client Privilege as they Relate to the Treatment Records Petitioners first ask this Court to decide whether a subpoena issued by the Board in order to investigate a complaint ¹⁶⁹ against a licensed social worker for failure to report suspected child abuse overrides any statutory authority concerning confidential and/or privileged communications between the accused social worker and her clients, petitioners. In order to make a decision, we must first look to what the laws of this State provide in terms of privileged and confidential communications as they relate to social workers and their clients, as well as to any existing exceptions to those privileges. Md.Code (1973, 1998 Repl.VoL), § 9-121 of the Courts and Judicial Proceedings Article provides for a social worker— client privilege relating to communications made while the client was receiving counseling from the social worker.

The statute provides, in pertinent part: “§ 9-121. Communications between licensed social worker and client. (a) Definitions. — (1) In this section, the following words have the meanings indicated. (2) ‘Client’ means a person who communicates to or receives services from a licensed certified social worker regarding his mental or emotional condition, or from any other person participating directly or vitally with a licensed certified social worker in rendering those services, in consultation with or under direct supervision of a licensed certified social worker.

(3) ‘Licensed, certified social worker’ means any person licensed as a certified social worker under Title 19 of the Health Occupations Article. (4) ‘Witness’ means a licensed certified social worker or any other person participating directly or vitally with a licensed certified social worker in rendering services to a client, in consultation with or under direct supervision of a licensed certified social worker. (b) Privilege established. — Unless otherwise provided, in all judicial or administrative proceedings, a client has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications made while the client was receiving counseling.” [Emphasis added.] ¹⁷⁰ This statute affords social workers and their clients similar protections that have long been applicable to other relationships where privacy issues and the need for open communication are of paramount importance, e.g., marital privilege, attorney — client privilege, psychiatrist/psychologist — patient privilege, clergyman — communicant privilege, etc. The reasoning behind such privileges is obvious — the privileges provide for an environment in which open communication can occur without the fear that the communication will later be used in a court or administrative proceeding against the person making the communication. As can be seen from its passage of § 9-121 of the Courts and Judicial Proceedings Article, the Legislature was of the opinion that such an umbrella of privilege should also apply to the relationships between licensed social workers and their clients. 7 Likewise, Md.Code (1982, 2000 Repl.Vol.), § 4-302 of the Health — General Article, which deals with the broader category of confidentiality of medical records, states, in pertinent part: “§ 4-302.

Confidentiality and disclosure generally. (a) In general. — A health care provider[ 8 ] shall: (1) Keep the medical record of a patient or recipient confidential; and (2) Disclose the medical record only: (i) As provided by this subtitle; or ¹⁷¹ (ii) As otherwise provided by law.” [Footnote added.] As can be seen after examining the statutes, the scope of the social worker — client privilege established under § 9-121(b) of the Courts and Judicial Proceedings Article is not identical to the scope of confidentiality of medical records established under § 4-302 of the Health — General Article. Section 4-302 makes confidential any information found in the “medical record,” ie., any information that “[i]s entered in the record of a patient or recipient ... [identifies or can readily be associated with the identity of a patient or recipient; and ... [r]elates to the health care of the patient or recipient.” Section 4-301 of the Health-General Article (defining “medical record”). The social worker — client privilege of § 9-121 (b) of the Courts and Judicial Proceedings Article, however, protects only those “communications made while the client was receiving counseling.” Because the treatment records relating to Ms. F’s counseling services to petitioners were created pursuant to her “rendering services” to petitioners and they are undoubtedly to be considered medical records for the purposes of those statutes relating to the confidentiality of medical records, see §§ 4-301 et seq. of the Health — General Article, we consider the information contained in those treatment records to be both confidential and privileged.

Therefore, we must examine the Board’s claim that its subpoena power and obligation to oversee the conduct of the licensed social workers of this State provides an exception to petitioners’ privilege and confidentiality rights as provided by law. B.) Supervisory and Subpoena Power of the Board over Licensed Social Workers Title 19 of the Health Occupations Article regulates the social work profession as it exists in this State and provides that “[t]he General Assembly finds that the profession of social work profoundly affects the lives, health, safety, and welfare of the people of this State,” and that the purpose of the title “is to protect the public by: (1) Setting minimum ¹⁷² qualification, education, training, and experience standards for the licensing of individuals to practice social work; and (2) Promoting and maintaining high professional standards for the practice of social work.” Section 19-102 of the Health Occupations Article. The Board exists as the State regulatory agency that is legislatively empowered to license and regulate social workers in Maryland. Inherent in the power to regulate the licensees is the power to investigate licensees for alleged improper conduct as it relates to their duties as social workers and to discipline any licensee that violates any of his or her statutory duties.

See McDonnell v. Commission on Medical Discipline, 301 Md. 426, 436 , 483 A.2d 76, 81 (1984) (stating that “[t]he purpose of disciplinary proceedings against licensed professionals is not to punish the offender but rather as a catharsis for the profession and a prophylactic for the public”). Of special importance to the case sub judice is § 19-311 of the Health Occupations Article, which provides in part: “§ 19-311. Denials, reprimands, suspensions, and revocations — Grounds. Subject to the hearing provisions of § 19-312 of this subtitle, the Board may deny a license to any applicant, fine a licensee, reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the applicant or licensee: (15) Knowingly fails to report suspected child abuse in violation of § 5-704 of the Family Law Article.” [Emphasis added.] Pursuant to an investigation under any of the grounds listed in § 19-311, including an investigation into whether a social worker did,* in fact, “knowingly fail[ ] to report suspected child abuse,” the Legislature has specifically granted the Board, under § 19-312(c) of the Health Occupations Article, the power to issue subpoenas.

The statute states: “(c) Subpoenas and oaths. — Over the signature of an officer or the administrator of the Board, the Board may issue ¹⁷³ subpoenas and administer oaths in connection with any investigation under this title and any hearings or proceedings before it.” [Emphasis added.] As stated, the Board initiated an investigation into the actions (or lack thereof) by Ms. F in relation to her counseling of petitioners after a complaint arose concerning acts of child abuse by John Doe that were not reported by Ms. F. It is apparent from the record, particularly the Consent Order, that substantial evidence was acquired by the Board which showed that Ms. F had acted in her professional capacity as a licensed social worker in such a way as to be subject to discipline by the Board under § 19-311 of the Health Occupations Article. 9 A subpoena was thereafter issued by the Board for the treatment records of petitioners that were made by Ms. F while she was acting in her capacity as petitioners’ social worker. This subpoena was issued for the sole purpose of gathering any information as to whether Ms. F was in violation of Title 19 of the Health Occupations Article and subject to discipline by the Board. The social worker’s treatment records relating to petitioners would be one logical, potential source of such information, if it existed. Other statutes further express the power of the Board to subpoena records such as those sought in the case before us.

In regard to the ability of a health professional licensing or disciplinary board to subpoena medical records in order to further an investigation of a licensee, § 4-306(b)(2) of the Health — General Article states that: “(b) Permitted disclosures. — A health care provider shall disclose a medical record without the authorization of a person in interest: ¹⁷⁴ (2) Subject to the additional limitations for a medical record developed primarily in connection with the provision of mental health services in § 4-807 of this subtitle, to health professional licensing and disciplinary boards,[ 10 ] in accordance with a subpoena for medical records for the sole purpose of an investigation regarding: (i) Licensure, certification, or discipline of a health professional; or (ii) The improper practice of a health profession.” [Emphasis added.] [Footnote added.] Moreover, § 4-307 of the Health — General Article, which deals specifically with the disclosure of mental health' records, 11 states, in pertinent part: “§ 4-307. Disclosure of mental health records. (k) Transfer of recipient; protection and advocacy system; commitment proceedings; court orders, subpoenas, etc.; death of recipient.-(l) A health care provider shall disclose a medical record without the authorization of a person in interest: (vi) In accordance with a subpoena for medical records on specific recipients: 1. To health professional licensing and disciplinary boards for the sole purpose of an investigation regarding licensure, certification, or discipline of a health professional or the improper practice of a health profession.... ” [Emphasis added.] ¹⁷⁵ As petitioners correctly note, however, § 4-307(k)(6) of the Health — General Article states that: “This subsection may not preclude a health care provider, a recipient, or person in interest from asserting in a motion to quash or a motion for a protective order any constitutional right or other legal authority in opposition to disclosure.” Petitioners, in their brief, claim that this provision “demonstrates the explicit legislative intent not to abrogate other provisions of law through § 4-307 of the Health — General Article.

Hence, the exceptions to the confidentiality of medical records contained in § 4-307 of the Health — General Article have no bearing on the privilege! ] created in ... [§ 9— 121(b) of the Courts and Judicial Proceedings Article]” (alteration added). We do not agree. Petitioners’ main contention relating to their claim that the § 4-307 exceptions have no bearing on the social worker— client privilege existing under § 9-121(b) is that several enumerated exceptions exist under § 9 — 121(d)—(e), which petitioners claim is an exhaustive list of exceptions not to be expanded upon by any of the language found in §§ 4-306 and 4-307 of the Health — General Article. Section 9-121 (d) — (e) states the exceptions to the social worker — client privilege as follows: “(d) Privilege inapplicable in certain circumstances.— There is no privilege if: (1) A disclosure is necessary for the purpose of placing the client in a facility for mental illness; (2) A judge finds that the client, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court; (3) In a civil or criminal proceeding: (i) The client introduces the client’s mental condition as an element of the claim or defense; or (ii) After the client’s death, the client’s mental condition is introduced by any party claiming or defending through or as a beneficiary of the client; ¹⁷⁶ (4) The client or the personal representative of the client makes a claim against the licensed certified social worker for malpractice; or (5) The client expressly consents to waive the privilege, or in the case of death or disability, the client’s personal representative waives the privilege for purpose of making a claim or bringing suit on a policy of insurance on life, health, or physical condition.

(e) Privilege inapplicable in certain proceedings. — There is no privilege in: (1) Any administrative or judicial nondelinquent juvenile proceeding; (2) Any guardianship and adoption proceeding initiated by a child placement agency; (3) Any guardianship and protective services proceeding concerning disabled persons; or (4) Any criminal or delinquency proceeding in which there is a charge of child abuse or neglect or which arises out of an investigation of suspected child abuse or neglect.” As stated, petitioners assert that this statutory listing of the inapplicability of the social worker — client privilege in certain circumstances and proceedings is exhaustive and that “the General Assembly was free to add an additional, tenth exception to the legislative scheme, but it chose not to.” Petitioners fail, however, to acknowledge the ultimate authority found in the language of § 9-121(b), which allows for the existence of the privilege in the first place. The language establishing the privilege is preceded by “Unless otherwise provided ...” (emphasis added). What it does not say is “unless otherwise provided in this subtitle” or the like. Therefore, the exceptions to the social worker — client privilege found in § 9-121(d) — (e) of the Court and Judicial Proceedings Article are not meant to be exhaustive insofar as they would exclude an exemption to the privilege based on an investigation by the Board of one of its social workers not fulfilling her statutorily mandated duties under § 5-704(a) of the Family Law Article.

The statute establishing a social ¹⁷⁷ worker — client privilege and its exceptions does not exist in a vacuum but can be, and is, affected by other statutes which further limit the scope of the privilege. Our conclusion is bolstered by the fact that several other exceptions to the social worker — client privilege that are not enumerated in § 9-121(d) — (e) are recognized by law, e.g., the requirement that social workers report suspected child abuse (§ 5-704(a) of the Family Law Article); the requirement that social workers report the “abuse, neglect, self-neglect, or exploitation” of an “alleged vulnerable adult” (§ 14-302(a) of the Family Law Article); the duty of mental health care providers to warn their patients’ intended victims (§ 5-609 of the Courts and Judicial Proceedings Article); and permission to disclose exculpatory information. See Goldsmith v. State, 337 Md. 112, 133-34 , 651 A.2d 866, 877 (1995) (where showing is made that there is a “reasonable likelihood” that privileged records contain exculpatory information necessary for a proper defense, the privilege may be abrogated). It is readily apparent, therefore, that there exist exceptions to the social worker— client privilege that are not specifically enumerated in § 9-121(d) — (e) of the Courts and Judicial Proceedings Article, but that nevertheless limit successful assertion of the 'privilege.

As this Court has stated, “the paramount rule of statutory construction is to ascertain and effectuate the intent of the legislature.” Gillespie v. State, 370 Md. 219, 221 , 804 A.2d 426, 427 (2002). Furthermore, “when the Legislature acts, it ‘is presumed to be aware of its own enactments.’ ” Maryland State Highway Admin. v. Kim, 353 Md. 313, 324 , 726 A.2d 238, 244 (1999) (quoting State v. Hernandez, 844 Md. 721 , 727, 690 A.2d 526, 529 (1997)). With this in mind, we do not accept petitioners’ argument that the social worker — client privilege established under § 9-121(b) automatically prohibits the Board from subpoenaing petitioners’ 1998 treatment records for the purpose of investigating one of its licensed social workers for professional violations, especially those involving allegations that a licensed social worker has knowingly failed to report child abuse. As the intermediate appellate court rightfully stated in its opinion below, “it would create an ¹⁷⁸ absurd result to mandate that a social worker report child abuse, while at the same time, permit the abuser and/or the social worker to prevent the Board from investigating a complaint of failure to report the suspected abuse.” Doe, 154 Md.App. at 541 , 840 A.2d at 757 .

We agree with the intermediate appellate court’s assessment. It is obvious that the Board is statutorily permitted to investigate allegations that a licensed social worker has knowingly failed to report suspected child abuse. See § 19-311(15) of the Health Occupations Article. If a social worker, in this case Ms. F, knowingly fails to report incidents of child abuse, this is something in which the Board would understandably take an interest and seek to remedy accordingly, presumably through its disciplinary powers subsequent to an investigation into the matter.

The social worker — client privilege cannot be allowed to create an impenetrable wall to investigations of such importance. Section 5-704 of the Family Law Article requires social workers to notify the appropriate department or law enforcement agency, notwithstanding any law on privileged communications, if there is a reason to believe that a child has been subjected to abuse. If the Legislature has provided that the privilege does not prevent a social worker from reporting the abuse, 12 it follows that the privilege must not prevent the investigation of a social worker who is suspected of knowingly not reporting such abuse. Other courts have held that a statutorily-enacted privilege does not automatically work to prevent investigatory boards from obtaining confidential records under similar circumstances as those existing in the case sub judice.

In State Medical Board of Ohio v. Miller, 44 Ohio St.3d 136 , 541 N.E.2d 602 (1989), a physician who was the subject of an investigation by the state medical board for “improperly pre ¹⁷⁹ scribing controlled substances” moved to quash an investigative subpoena duces tecum that sought the physician’s “patient records for a number of his patients.” Id. at 136 , 541 N.E.2d at 602-03 . The physician asserted that the physician — patient privilege, as set forth by a state statute, precluded the disclosure of the requested records. On appeal, the Supreme Court of Ohio framed the issue before it as follows: “This case presents the question of how a statute, designed to permit investigation of the suspected wrongdoing of physicians, is impacted by the physician — patient privilege.” Id. at 138 , 541 N.E.2d at 603-04 . In holding that the physician — patient privilege did not prevent the state medical board from compelling production of confidential patient records, the state supreme court stated that “[wjhile we are cognizant of the laudable purpose and goal to be achieved by the physician — patient privilege, we are likewise cognizant that the privilege may not be invoked automatically in all circumstances.” Id. at 140, 541 N.E.2d at 605 (emphasis added).

The court first noted that, because “there existed no physician — patient privilege at common law ... the privilege is in derogation of the common law [and] must be strictly construed against the party seeking to assert it.” Id. Next, the court observed that “the opportunity to practice medicine is not an unqualified right. All physicians must be licensed to practice pursuant to [the state licensing statute].” Id. (alteration added).

Thirdly, the court stated that “in certain circumstances, the policy considerations underlying the physician— patient privilege are outweighed by other factors.... We feel that the interest of the public at large, served here through the board’s investigation of possible wrongdoing by a licensed physician, outweighs the interests to be served by invocation of the physician — patient privilege.” Miller, 44 Ohio St.3d at 140-41 , 541 N.E.2d at 606 (emphasis added). Lastly, the court gave weight to the fact that the state medical board was required by statute to maintain the confidentiality of patient records reviewed during an investigation. The statute itself stated that “[t]he board shall conduct all investigations and proceedings in such a manner as to protect patient confiden ¹⁸⁰ tiality.

The board shall not make public names or other identifying information about patients unless proper consent is given.” Id. at 141 , 541 N.E.2d at 606 . Similarly, in the case of In re Board of Medical Review Investigation, 463 A.2d 1373 (R.I.1983), a physician petitioned to quash a subpoena duces tecum ordering production of certain patient-treatment records, which were sought by the state’s Board of Medical Review Investigation to determine whether the physician was guilty of unprofessional conduct. 13 The state supreme court framed the issue before it as follows: “The issue before us is whether or not the [statutory physician — patient privilege][ 14 ] should be construed to prevent the subpoenaing of a physician’s records of patient treatment during an investigation by the Board of Medical Review of alleged unprofessional conduct.” Id. at 1373-74 (alteration added) (footnote added). The Supreme Court of Rhode Island first noted that “[t]he Legislature created the Board of Medical Review and empowered it ‘to investigate all complaints and charges of unprofessional conduct against any licensed physician and to hold hearings to determine whether such charges are substantiated.’ In furtherance of this statutory directive the board has the authority to issue subpoenas ‘to compel the production of documents or other written records____’” Id. at 1374 (citations omitted). The state supreme court then found that “the purpose of the [physician — patient privilege] is not violated by ¹⁸¹ the board’s subpoenaing a physician’s records of his patients during a board investigation of alleged unprofessional conduct ... because the ... investigations are confidential.... [T]he patient-physician privilege shall not prevent the board from carrying out its investigation----” Id. at 1376 (alteration added).

The court concluded its reasoning for holding that the asserted privilege did not prevent an investigation by the medical review board by stating: “By establishing the Board of Medical Review and authorizing it to investigate charges of unprofessional conduct against physicians, the Legislature manifested a desire to improve the quality of health-care services rendered in this state and to maintain a standard of professional ethics. By enacting the [statutory physician — patient privilege], the Legislature has sought to encourage open disclosure of information from patient to physician so as to aid in the effective treatment of the patient. Hmvever, when a physician is under investigation for unprofessional conduct and the physician attempts to invoke the patient-physician privilege and to prevent the investigatory committee from obtaining records necessary to its investigation, it seems apparent that the injury to society’s interest in probity within the medical profession is much greater than the injury done to the patient’s interest in the privacy of his medical records.” In re Board, 463 A.2d at 1376 (alteration added) (emphasis added). We find the reasons behind these courts’ actions of holding that a statutory privilege cannot automatically prevent an investigatory board’s effort to subpoena relevant medical records to be persuasive.

Although the cases discussed dealt with the physician — patient privilege as it existed in those states, the thrust of both holdings as to why a statutory privilege should not always prove insurmountable to a legitimate and specific board investigation is undoubtedly relevant to the sphere of social worker — client privileges. A state investigatory board that is statutorily charged with regulating and disciplining its licensees should not be barred, generally, from ¹⁸² conducting a thorough investigation into allegations of the unprofessional conduct of a licensee, especially when the Legislature has specifically provided that the state investigatory board has the power to subpoena records pursuant to an investigation. As with both the Supreme Court of Ohio and the Supreme Court of Rhode Island, we are persuaded that our holding is further warranted due to the fact that Maryland law, like the laws of those two states, provides adequate safeguards to prevent the disclosure of petitioners’ treatment records. As stated, supra> § 4-302(a) of the Health — General Article requires health care providers to keep medical records confidential and allows disclosure only as provided by Maryland law.

When confidential records are disclosed under Maryland law, however, § 4-302(d) of the Health — General Article expressly prohibits the redisclosure of those disclosed records: “(d) Redisclosure. — A person to whom a medical record is disclosed may not redisclose the medical record to any other person unless the redisclosure is: (1) Authorized by the person in interest; (2) Otherwise permitted by this subtitle.... ” There is no other provision in this subtitle permitting the redisclosure of treatment records by the Board. In fact, § 4-309 of the Health — General Article provides that “a health care provider or any other person ” (emphasis, added) who discloses a medical record in violation of the subtitle shall be subjected to a possible criminal fine and to civil damages. The Board is statutorily required by this subtitle to keep confidential those records which it seeks to examine pursuant to its investigation of Ms. F. We find that the Legislature has provided adequate safeguards against the disclosure by the Board of any information that it seeks to obtain through its statutorily-enacted subpoena power. Petitioners’ social worker — client privilege in regard to their 1998 treatment records does not prevent the Board from subpoenaing those records pursuant to its investigation of Ms. F. ¹⁸³ C.) Constitutional Privacy Interest in Preventing Disclosure Petitioners next argue that the Court of Special Appeals erred in accepting the finding by the circuit court that the Board’s interest in obtaining petitioners’ therapy records outweighed petitioners’ constitutional privacy interest in preventing disclosure.

For the reasons that follow, we do not agree. This Court has stated that “the right to privacy is protected by the federal constitution and ... where the right is applicable, regulation limiting it must be justified by a ‘compelling state interest.’ ” Montgomery County v. Walsh, 274 Md. 502, 512 , 336 A.2d 97, 104-05 (1975), appeal dismissed, 424 U.S. 901 , 96 S.Ct. 1091 , 47 L.Ed.2d 306 (1976); see also Doe v. Commander, Wheaton Police Dep’t., 273 Md. 262, 272 , 329 A.2d 35, 41 (1974) (stating that “regulation limiting [the right of privacy] must be justified by a ‘compelling state interest’ ”) (alteration added). The United States Supreme Court has recognized that “cases ... characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 , 97 S.Ct. 869, 876 , 51 L.Ed.2d 64 (1977) (emphasis added) (footnotes omitted).

Medical records fall within the protections of this right to privacy. See In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir.1987), cert. denied, 483 U.S. 1007 , 107 S.Ct. 3233 , 97 L.Ed.2d 739 (1987) (stating that “medical records are clearly within this constitutionally protected sphere”); see also United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir.1980) (stating that “[t]here can be no question that ... medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection”). In the case sub judice, petitioners assert their privacy interest in nondisclosure of their 1998 treatment records. Therefore, the Board, a State agency, must show a “compelling state interest” before it will be allowed to infringe ¹⁸⁴ on petitioners’ privacy rights regarding their treatment records.

In the case of Dr. K v. State Board of Physician Quality Assurance, 98 Md.App. 103 , 632 A.2d 453 (1993), cert. denied, 334 Md. 18 , 637 A.2d 1191 , cert. denied, 513 U.S. 817 , 115 S.Ct. 75 , 130 L.Ed.2d 29 (1994), after receiving formal written complaints that a psychiatrist and his former patient were having a romantic relationship and that the psychiatrist was depressed and abusing alcohol, the State Board of Physician Quality Assurance 15 initiated an investigation and subpoenaed the psychiatrist’s records relating to the patient’s treatment. Akin to petitioners in the case sub judice, in Dr. K the patient claimed on appeal to the intermediate appellate court that her constitutional right to privacy barred the disclosure of her mental health records to the Board of Physician Quality Assurance. 16 See id. at 107 , 632 A.2d at 455 . The Court of Special Appeals, after finding that the patient had a right to privacy in her medical records, proceeded to analyze whether or not this individual privacy interest trumped the State’s competing interest in obtaining the medical records under the standard described in United States v. Westinghouse