Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kentucky Correctional Psychiatric Center violated the Kentucky Open Records Act in denying the December 18, 2003 request of Charles Moss for a copy of the report prepared by KCPC following the court ordered evaluation of his mental competency conducted there prior to his trial. For the reasons set forth below, we conclude that KCPC properly denied Mr. Moss access to the requested record.
In a response dated December 19, 2003, Sharon W. Proctor, the KCPC Health Information Management Director, denied Mr. Moss's request, advising him as follows:
Pre-trial patients are admitted as a direct result of a court ordered evaluation. These evaluations determine competency to stand trial or treatment that will enable the patient to be brought to competency to stand trial. The court order specifies the distribution of information gathered during this process. Information cannot be released to anyone other than persons specifically mentioned in the court order.
To remain in compliance with the court order, we must deny your request for this medical record.
In closing, Ms. Proctor listed the names and contact information of the court officers authorized by the court to receive a copy of the evaluation report. 1 Mr. Moss now appeals from this denial.
On appeal, Mr. Moss argues that he is entitled to "receive and/or review these records" even though the court did not identify him as an individual to whom the results of his examination were to be distributed because "they pertain to him and the court order was not sealed. " In a supplemental response directed to this office after Mr. Moss initiated his appeal, John H. Walker, Assistant General Counsel for the Cabinet for Health & Family Services (the agency charged with operation of KCPC), confirmed the views expressed by Ms. Proctor. According to Mr. Walker, KCPC did not provide Mr. Moss with a copy of his evaluation because the court order "did not advise KCPC to provide a copy of the evaluation to the subject of the study." Further, Mr. Moss has filed "appropriate motions [with] the court for a copy of the order" and KCPC records indicate that Mr. Moss is represented by legal counsel. Since the circuit court order was "silent on the issue of release to Mr. Moss," the "matter is apparently an issue between Mr. Moss and the [court]," and "Mr. Moss has local counsel in Wickliffe who received a [copy] of the evaluation to argue his right to access the evaluation before the court," the Cabinet maintains that it "has acted appropriately in this case." 2 Although KCPC's initial response was procedurally deficient, we agree that its response was substantively correct.
KRS 61.880(1) sets forth the mandatory procedural guidelines with which an agency must comply in responding to a request made pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In denying Mr. Moss's request, Ms. Proctor correctly advised him that the report he requested to inspect was generated as the result of a court ordered evaluation, the distribution of which was limited by the court to specified individuals not including Mr. Moss. However, she neglected to cite a specific exception authorizing nondisclosure or explain how the exception applied to the records withheld as required by this provision.
It is the position of KCPC that the record requested by Mr. Moss is a court record and, therefore, is not subject to inspection under the Open Records Act. In making this assertion, KCPC implicitly relies upon the rule governing "court records" as set forth in prior opinions of this office. See, for example, OAG 91-193. At issue in that opinion was whether a trial transcript falls within the purview of the Open Records Act. In concluding that a trial transcript "is clearly a court record" and, therefore, is not subject to the "reasonable fee" provision of the Act, the Attorney General engaged in the following analysis:
KRS 61.878(1)(j) 3 excludes from the application of the Open Records Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision, when read in tandem with KRS 26A.200 , has been construed to exempt court records from the mandatory disclosure provisions of the Act. KRS 26A.200 provides, in part, that all records which are made by or generated for or received by any agency of the Court of Justice, or by any other court, agency, or officer responsible to the Court, are the property of the Court, and are subject to the control of the Supreme Court. Thus, court records enjoy a special status, and are placed under the exclusive jurisdiction of the Court. OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4.
KRS 26A.220 provides:
All public officers, public agencies, or other persons having custody, control or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.
In Ex Parte Farley, Ky., 570 S.W.2d 617, 624 (1978), the Kentucky Supreme Court observed:
OAG 91-193, p. 1-2.
Although Ms. Proctor's disposition of the subject request is otherwise consistent with the foregoing, it is procedurally deficient to the extent that she did not invoke the applicable exception. As we reiterated in 03-ORD-190, the procedural requirements of the Act "'are not mere formalities, but an essential part of the prompt and orderly processing of an open records request.'" Id., p. 4, citing 93-ORD-125, p. 5. Accordingly, we encourage KCPC to review KRS 61.880(1) to ensure that its future responses conform to the procedural requirements of the Open Records Act. See 95-ORD-89. Because Ms. Proctor's reasoning is supported by both logic and governing precedent, however, we affirm her denial of Mr. Moss's request.
In 99-ORD-109, we conclusively resolved the question of whether KCPC must disclose records of the type requested by Mr. Moss under the exact circumstances presented here. Based on opinions of this office dating back to 1980, we concluded that KCPC properly denied the inmate's request in light of the court order limiting distribution of the confidential report. Id., p. 2. Because the reasoning upon which that conclusion was premised is equally valid today, we adopt the following dispositive excerpt:
The record at issue in this appeal was created at the direction of the court and placed under an order limiting distribution to the judge hearing [Mr. Moss's] case and the attorneys representing [Mr. Moss] and the Commonwealth. Although it is a "public record" within the meaning of KRS 61.870(2), because it is a record which is prepared and retained by a public agency, the court's order removes it from the application of the Act. Releas[ing] the report to persons other than those identified in the order could expose employees of KCPC to liability or place them in contempt of court. As the Attorney General has observed on more than one occasion, "[t]he Open Records Act in no way supercedes an order entered by a court of competent jurisdiction. . . ." 97-ORD-23, p. 4; see also, OAG 80-353; OAG 89-22; OAG 91-121.
While it may seem that the individual whose mental competency is the subject of the evaluation report would be entitled to receive a copy of it, courts are vested with the discretion to conclude otherwise. Judge Shadoan so concluded in Mr. Moss's case. It is not appropriate for this office to question the court's judgment as to whom the report should be released since such a determination is uniquely within the court's province. 99-ORD-109, supra, p. 2. Because the requested report is properly characterized as a "court record" and its distribution has been limited by court order, it is not accessible under the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Charles Moss, # 155774Green River Correctional ComplexP.O. Box 9300Central City, KY 42330
Sharon W. Proctor, RHIADirector, Health Information ManagementKentucky Correctional Psychiatric Center1612 Dawkins Road, P.O. Box 67LaGrange, KY 40031
John WalkerAssistant General CounselCabinet for Health Services275 East Main StreetFrankfort, KY 40601
Footnotes
Footnotes
1 Judge William L. Shadoan (the issuing judge), Louis Zimmerman (defense counsel), and Tim Langford (prosecutor) are the only individuals named on the distribution list. Attached to Ms. Proctor's response is a copy of the court's order to this effect.
2 In supplemental correspondence received in this office on January 21, 2004, Mr. Moss challenges the assertion that the requested records are "sealed by court order or Mr. Moss is entitled to a copy of such records." According to Mr. Moss, KCPC's response is "inaccurate" as he "cannot get a response from the filings of his pro se motions to the Ballard Circuit Court" and he "does not have the assistance of 'local counsel' in Wickliffe" as indicated by the Cabinet. Because the court's order "did not delineate whether or not these records were 'confidential' " and "nothing within KRS 61.878(1)(a) through (l) prohibits [him] from having possession" of the "records related to him" even if they are confidential, Mr. Moss argues that he is entitled to inspect the requested records. Based on existing authority to the contrary, we find Mr. Moss's arguments unpersuasive.
3 Although this provision has since been re-codified as KRS 61.878(1)(l), the current version is substantively unchanged.