Request By:
George D. Hancock, Director
Kentucky Correctional Psychiatric Center
P.O. Box 67 - 1612 Dawkins Road
LaGrange, Kentucky 40031
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Kimberly K. Greene, Esq., on behalf of her clients, The Courier-Journal newspaper and Ms. Kay Stewart, staff writer for that newspaper, has appealed to the Attorney General pursuant to KRS 61.880 your denial of Ms. Stewart's request to inspect and copy various documents in the custody of the Center.
In a letter to you dated September 30, 1987, Ms. Stewart requested copies of the Kentucky Correctional Psychiatric Center transcription logs covering all pre-trial patients from July 1, 1986, to date. She said she was not asking for confidential information regarding any particular patient or for results of evaluations or tests taken. She wanted information concerning the types of tests given, the employees who administered the tests and the supervisors of the process.
You replied to Ms. Stewart in a letter dated October 2, 1987. You advised her that the Center does not maintain transcription logs. Her request was denied and in support of your position you cited KRS 61.878(1)(j) and KRS 210.235. In your opinion the information requested falls within that deemed confidential by KRS 210.235.
In her letter of appeal to this office Ms. Greene maintains that no confidential information was sought and the names of the persons who undergo pretrial evaluations are already a matter of public record through court orders requiring the evaluations. She further states that while you may not maintain transcription logs some kind of a "register" does exist which contains the information sought by Ms. Stewart.
Ms. Greene alleges that KRS 210.235 is not applicable as all of the persons involved in the request are defendants in the states' criminal justice system who have been ordered by trial courts to undergo psychiatric evaluation prior to their trials on criminal charges. The court orders requiring evaluation are matters of public record and the statute has no application since the identities of these particular patients are known.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(j) provides that among those records which are excluded from public inspection in the absence of a court order authorizing inspection are those "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
There is an enactment of the General Assembly, KRS 210.235, dealing with the confidential nature of the records of state mental health facilities, which provides as follows:
All applications and requests for admission and release, and all certifications, records and reports of the Cabinet for Human Resources which directly or indirectly identify a patient or former patient or a person whose hospitalization has been sought, shall be kept confidential and shall not be disclosed by any person, except insofar as:
1) The person identified or his guardian, if any, shall consent; or
2) Disclosure may be necessary to carry out the provisions of the Kentucky Revised Statutes, and the rules and regulations of departments and agencies of the Commonwealth of Kentucky; or
3) Disclosure may be necessary to comply with the official inquiries of the departments and agencies of the United States government; or
4) A court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and failure to make such disclosure would be contrary to the public interest. Nothing in this section shall preclude the disclosure, upon proper inquiry of the family or friends of a patient, of information as to the medical condition of the patient.
In OAG 82-414, copy enclosed, at pages 2-3, we referred to one of the subsections of KRS 210.235 but the only prior opinion of this office which has a bearing on the matter now under consideration is OAG 76-420, a copy of which is enclosed. We concluded in that opinion that the medical records of a comprehensive care center would be precluded from public inspection by the provisions of KRS 210.235. Here we are dealing with a psychiatric center which is part of the Department for Mental Health and Mental Retardation Services of the Cabinet for Human Resources.
KRS 210.235 clearly applies to the Cabinet for Human Resources and it would also apply to the Kentucky Correctional Psychiatric Center since it is a part of that Cabinent. Thus the Center must evaluate requests to inspect its records and documents with regard to the confidentiality provisions of KRS 210.235.
Not only does KRS 210.235(4) set forth an exemption which a court may utilize to bring before it otherwise confidential information but the Courts of Justice, unlike the Cabinet for Human Resources, are not bound by the terms and provisions of the Open Records Act. See Ex Parte Farley, Ky., 570 S.W.2d 617 (1978). Thus, regardless of what a court has done or might do relative to confidential material the Cabinet for Human Resources and the Psychiatric Center would be bound by the confidentiality provisions of KRS 210.235 in the absence of a court order to the contrary.
In addition to the confidentiality provisions of KRS 210.235, there is a psychiatrist-patient privilege in which communications between a patient and a psychiatrist are placed upon a basis similar to that of an attorney and his client. See KRS 421.215. There is also a licensed psychologist-patient privilege pursuant to KRS 319.111. Thus, mental health records of a state facility reflecting the results of communications between patients and psychiatrists and psychologists are confidential.
The Open Records Act also provides in KRS 61.878(1)(a) that in the absence of a court order authorizing inspection a public agency may exclude from public inspection, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." See OAG 87-70, copy enclosed, dealing with the privacy exception to the inspection of public records.
Thus, it is the opinion of the Attorney General that on the basis of various statutory provisions, particularly KRS 61.878(1)(j) and KRS 210.235, and in the absence of a court order authorizing inspection, you properly denied the newspaper's request under the Open Records Act for copies of documents of a state mental facility pertaining to the types of tests given to patients and personnel administering and supervising such tests.
As required by statute a copy of this opinion is being sent to the appealing party, Kimberly K. Greene, Esq., who is also legal counsel to the original requesting party. She has the right to challenge this opinion in the appropriate circuit court pursuant to KRS 61.880(5).