Request By:
Representative C. M. "Hank" Hancock
Co-Chairman
Legislative Program Review and Investigations Committee
The Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As Co-Chairman of the Legislative Program Review and Investigations Committee authorized to evaluate Kentucky's parole system, you have requested an opinion from this Office on a number of issued pertaining to the failure of the Corrections Cabinet to provide the Committee with information necessary to the performance of its duties, as required by KRS 6.915. Specifically, you ask:
1. Whether the Corrections Cabinet properly invoked KRS 421.215, the psychiatrist-patient privilege, to justify removal of psychiatric and psychological evaluations from inmate files before turning them over to the Committee for review?
2. Whether KRS 61.878(5), a provision of the Kentucky Open Records Act which encourages the exchange of otherwise exempt records between public agencies, if necessary to the performance of a legitimate government function, is applicable to the Committee's request to inspect the entire inmate file?
3. Under what authority is the Parole Board allowed access to confidential material, such as psychiatric and psychological evaluations, in the course of their deliberations?
4. If the evaluations are released, who may review them, and under what terms and conditions?
You indicate that the Committee's objective is to:
Assess the incidence and risks of the use of discretionary decision-making authority in the nomination and appointment of Parole Board members, the establishment of parole eligibility criteria, the selection and application of parole release criteria, the establishment and enforcement of supervisory conditions, and initiation and follow-through of the revocation process.
In order to conduct the study, the Committee must "review the files of a statistical sample of inmates who have gone through the parole process in the last 3 years to determine the consistency in the application of parole criteria and parole decisions." It is the Committee's position that the information withheld by the Corrections Cabinet is essential to it if it is to "thoroughly evaluate the parole decision making process."
OPINION OF THE ATTORNEY GENERAL
In response to your first question, relating to the Corrections Cabinet's reliance on KRS 421.215 to justify removal of psychiatric and psychological evaluations from inmate files, we believe that the Cabinet erred in invoking the psychiartist-patient privilege. KRS 421.215 provides, in relevant part:
(2) Except as hereinafter provided in civil and criminal cases, in proceedings preliminary thereto, and in legislative and administrative proceedings, a patient, or his authorized representative, has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental condition between patient and psychiatrist, or between members of the patient's family and the psychiatrist, or between any of the foregoing and such persons who participate, under the supervision of the psychiatrist, in the accomplishment of the objectives of diagnosis or treatment. (3) There shall be no privilege for any relevant communications under this section:
* * * * *
(b) If a judge finds that the patient after having been informed that the communications would not be privileged, has made communications to a psychiatrist in the course of a psychiatric examination ordered by the court provided that such communications shall be admissible only on issues involving the patient's mental condition.
"Patient" is defined as "a person who, for the purpose of securing diagnosis of treatment of his mental condition consults a psychiatrist. " KRS 421.215(1)(a). 1 As with all other statutory privileges, it is "to be strictly confined within the narrowest possible limits consistent with the logic of its principles."
Tabor v. Commonwealth, Ky., 625 S.W.2d 571, 573 (1982) citing Wigmore on Evidence.
The traditional rationale advanced by proponents of the privilege is "the encouragement thereby given to the patient freely to disclose all matter which may aid in the diagnosis and treatment" of his illness. McCormick on Evidence, Sec. 11, p. 244 (3d ed.). 2 As the Kentucky Supreme Court noted in Tabor, supra, again adopting Professor Wigmore's position, in looking at this rationale, "'four fundamental conditions are recognized as necessary to the establishment of a privilege against the disclosure of communications'":
'(1) The communications must originate in a confidence that they will not be disclosed.(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.(3) the relation must be one which in the opinion of the community ought to be sedulously fostered.(4) The injury that would insure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.' 8 Wigmore, Evidence Sec. 2285, p. 527. These general principles are applicable in whole or in part in all instances where the 'privilege' is recognized.
It is immediately apparent that these "fundamental conditions" are not satisfied, under the present facts, and that the Cabinet cannot properly assert the privilege to justify nondisclosure of the psychiatric and psychological evaluations contained in inmate files.
According to Dr. Jim Kidwell, Director of the Division of Mental Health for the Corrections Cabinet, psychiatric and psycholigical evaluations are typically requested by the Parole Board in advance of an inmate's hearing. 3 For this reason, the inmate cannot be considered a "patient, " as that term is defined in KRS 421.215(1)(a), in that it is not his purpose in consulting a psychiatrist to secure diagnosis or treatment of his mental condition. Rather, he is required to submit to an examination by an appointed psychiatrist or psychologist for purposes of parole review. "[W]hen the doctor is employed by one other than the patient, treatment will not be the purpose and the privilege will not attach." McCormick on Evidence at 246.
It cannot be argued that communications between an inmate and an appointed psychiatrist or psychologist "originate in a confidence that they will not be disclosed," inasmuch as it is the psychiatrist or psychologist's purpose to evaluate the inmate's mental condition and prepare a report for the Board. As we noted with respect to court ordered mental examinations in OAG 75-570, at page 2, "A defendant ordered to undergo a mental examination may stand mute when the experts seek to examine him, but if he submits to the examination, his submission is voluntary." Accordingly, the privilege does not attach. 4
The Cabinet's invocation of KRS 421.215 does not comport with the view expressed by the Supreme Court in Tabor, supra. Rather than confining the privilege "within the narrowest possible limits consistent with the logic of its principle," the Cabinet has attempted to expand the scope of the privilege far beyond those limits. If the communications did not originate in confidence, confidentiality is not essential to the maintenance of the relations between the inmate and the Cabinet's psychiatrist or psychologist. There is, in fact, no relationship which the community might wish to foster, and thus no injury that can inure to it. Reliance on the privilege in the present case is completely inconsistent with the "logic of its principle," since the inmate is aware that he is being interviewed in anticipation of parole review.
Although there are no opinions of this Office which are directly on point, we have had occasion to discuss the psychiatrist-patient/psychologist-client privilege in other contexts. As indicated above, in OAG 75-570, we held that court ordered mental examinations are not privileged. There we said:
On the issue of the defendant's sanity when the crime was committed and on his mental condition at the time of trial, [but not on the issue of guilt] the expert should be allowed to testify freely and completely as to any communication made to him by the defendant.
An evaluation conducted by order of the Parole Board is much the same, and the exception codified at KRS 421.215(3)(b) could logically be extended to include such evaluations.
In OAG 83-187, we dealt with the issue of whether a physician or therapist is relieved of his obligation under KRS 209.030 to report adult abuse by the existing statutory privileges. Concluding that there is no bar to the reporting of a case of abuse by virtue of the privileges, we observed:
The physician-patient relationship is a creation of the legislature having no basis in the common law. In
Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976) the Supreme Court of Kentucky stated at page 466: 'At common law there is no privilege existing between doctor and patient or psychiatrist and patient. ' . . . [S]ince the privilege between physician and patient is purely the creation of the legislature, the legislature can alter, change, modify or repeal it.
OAG 83-187, p. 2. It can certainly be argued that just as the legislature has modified the privilege to permit doctors and therapists to report incidents of suspected abuse at KRS 209.030, so it has modified the privilege to permit disclosure of privileged communications at KRS 6.915, requiring state agencies to provide the Legislative Program Review and Investigations Committee with all necessary information for the performance of its duties.
Like KRS 209.030, KRS 421.215 is mandatory, in that it reads, "All agencies of the state, their staff and employees shall provide . . . ." (Emphasis added.) Any interpretation to the contrary, is without merit. Moreover, KRS 6.920(1)(a) vests the Committee with the power:
(a) To subpoena and examine witnesses; to require the appearance of any person and the production of any paper or document; to order the appearance of any person for the purpose of producing any paper or document; and to issue all process necessary to compel such appearance or production.
Thus, the Corrections Cabinet has a clear duty to produce the requested information in its entirety. Not only is the privilege improperly invoked, as our earlier discussion indicates, but it is subject to legislative modification, and has been so modified by KRS 6.915. 5 Should the Cabinet refuse to comply with KRS 6.915, the Committee has the power, under KRS 6.920(1)(a), to compel production of the evaluations.
You do not indicate whether the Committee wishes to review records of psychiatric or psychological treatment while the inmate is incarcerated. It is less clear, with respect to these records, whether the Cabinet can properly invoke the privilege. The inmate would probably fall within the definition of a "patient, " codified at KRS 421.215(1)(a), in that he would consult the psychiatrist for the purpose of securing diagnosis and treatment of his mental condition. It follows that Professor Wigmore's "four fundamental conditions" would be satisfied and the privilege directly implicated. Nevertheless, KRS 6.915 contains a clear legislative directive which cannot be ignored, and the Committee possesses subpoena power. Since your letter does not raise this issue, we will not attempt to resolve it here.
In response to your second question, which relates to the applicability of KRS 61.878(5) to your request for access to psychiatric and psychological evaluations in the possession of the Cabinet, we conclude that the cited provision would also require disclosure if this were an open records appeal. KRS 61.878(5) states:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
This provision has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies for legitimate governmental purposes. OAG 77-666; OAG 79-475; OAG 79-608; OAG 85-94; OAG 91-22. Indeed, we have held that "regardless of the nature of the [record], . . . denial of the request of one public agency to inspect the public records of another public agency [is] improper and in violation of the Open Records Law if the request was made for legitimate governmental purposes." OAG 85-94.
It is abundantly clear that the Corrections Cabinet and the Committee are "public agencies" within the meaning of the Open Records Act. 6 It is equally clear that the Committee is engaged in the performance of a legitimate government function assigned to it under KRS 6.905, i.e., a review of Kentucky's parole system, and that the exchange of the requested information is necessary for it to "thoroughly evaluate the parole decision making process." Although this question does not come to us in the form of an open records appeal, it should thus be noted that none of the recognized exceptions to the Act would apply. Instead, the Act mandates an open exchange of public records and the sharing of information between public agencies such as the Cabinet and the Committee.
Your third question relates to the Parole Board's authority to access confidential information in the course of its deliberations. You ask us to locate and identify the source of this authority. Chapter 439 of the Kentucky Revised Statutes vests authority in the Board, when considering the granting of parole, "to use the polygraph, truth serum and any other scientific means for personality analysis that may hereafter be developed." KRS 439.335. Moreover, KRS 439.340(2) requires the Board to "consider the pertinent information regarding the prisoner." That information is gathered by the Corrections Cabinet and consists of his criminal records, his conduct, employment and attitude in prison, "and the reports of such physical and mental examinations as have been made." KRS 439.340(1). In addition, the Cabinet is required "to supplement this report with such material as the board may request . . . ." This provision would appear to be the source of the Board's authority to require an inmate to submit to a psychiatric or psychological evaluation prior to review.
The courts of the Commonwealth have held, on at least one occasion, that information obtained by a private mental health services corporation in the course of psychotherapeutic diagnosis and treatment of an individual later convicted of murder, could not be disclosed to Probation and Parole for use in the preparation of a pre-sentence report. Southern Bluegrass Mental Health, supra, The court held that KRS 421.215 "is applicable in all official proceedings in which the patient's communication might be relevant." Southern Bluegrass Mental Health , at 933. However, the court further noted that reports generated by psychiatrists upon court ordered examination "do not fall within the scope of privilege and are available to the trial court for sentencing purposes." Id. at 934. Those records that are clearly within the scope of the privilege are not available to the Board under the rule announced in this case. This is confirmed by Dr. Kidwell, who indicated that certain records relating to an inmate are not available to the Board in its deliberations.
Finally, you ask who, among the Committee members and staff, may examine the psychiatric and psychological evaluations, and under what terms and conditions. The statutes authorizing creation of the Committee are silent on this question. Were these records privileged, as the Cabinet maintains, and their production compelled under the Committee's subpoena power, it is clear that a number of precautions would have to be observed. Thus, this Office has reasoned, "[T]he sharing of information among public service agencies does not mean that such information can be made available to the public if it is of a confidential nature." OAG 77-666.
Although we do not believe the psychiatric and psychological evaluations found in an inmate's parole review file are confidential, we urge the Committee to exercise caution in its examination of them. The Committee and its staff may have access to the files, but should protect against the general release or publication of the material. Public discussion of this review should scrupulously avoid identification of individual inmates and the opinions expressed in the evaluations with respect to each of them. We believe that some deference should be accorded the inmates in this admittedly sensitive area.
To summarize briefly, it is our opinion that the information you requested is not privileged and should be released under KRS 6.915. However, should the Cabinet stand firm it can be compelled to produce the documents under KRS 6.920(1)(a). Certainly, if this were an open records appeal, we would require the Cabinet to do so under KRS 61.878(5). There is clear authority for the Parole Board's use of confidential materials in its deliberations, but even the Parole Board is subject to some restrictions. Finally, although we do not believe the documents you have identified in your request to be privileged, we urge caution in their review and advise against public dissemination in view of their sensitive nature.
Footnotes
Footnotes
1 Although the Cabinet has not raised the statute in defense of its nondisclosure of psychological evaluations, a privilege exists for communications between psychologists and their clients. KRS 319.111 provides:
The confidential relations and communications between licensed psychologists or certificate holders and their clients are placed upon the same basis as those provided by the law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed.
The privilege does not contain the statutorily prescribed exceptions of KRS 421.215, but, like the attonrey-client privilege, it "is not absolute, . . . there are in special conditions limitations particularly where the act in question or the communication cannot be said to fall within the scope of the professional employment." Tabor, supra at 573, citing Hughes v. Meade, Ky., 453 S.E.2d 538 (1980). For purposes of this discussion, the privileges will be treated in the same manner since the underlying logic of their principles is one and the same.
2 Echoing this view, the Kentucky Court of Appeals has stated:
Confidentiality is essential if psychiatrists are to be in a position to successfully treat their patients. A thorough understanding of the patient's problems and feelings must be divulged if treatment is to be apprpriate and effective. The legislature has seen fit to make such communications privileged. The privilege granted in KRS 421.215 is absolute in the absence of the legislated and recognized exceptions.
Amburgey v. Central Kentucky Regional Mental Health Board, Inc., Ky.App., 663 S.W.2d 952, 953 (1983).
3 The file might contain court ordered evaluations as well. These are not privileged per KRS 421.215(3)(b).
4 See also, Southern Bluegrass Mental Health v. Angelucci, Ky.App., 609 S.W.2d 931, 934 (1980) holding that reports of court ordered psychiatric examinations "do not fall within the scope of privilege . . . ."
5 KRS 6.905, et seq., authorizes the Committee to conduct investigations and make performance reviews, and special studies of state agencies. This authority is consistent with the principles announced in Gibson v. Florida Investigation Committee, 372 U.S. 539, 9 L. Ed.929, 83 S. Ct. 889 (1963). Citing a number of earlier opinions, the court observed:
As this Court said in considering the propriety of the congressional inquiry challenged in Watkins v. United States, 354 U.S. 178, 1 L. Ed. 2d 1273, 77 S. Ct. 1173: 'The power . . . to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.' 354 U.S., at 187. And, more recently, it was declared that 'The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.' Barenblatt v. United States, 360 U.S. 109, 111, 3 L. Ed. 2d 1115, 1120, 79 S. Ct. 1081. It is no less obvious, however, that the legislative power to investigate, broad as it may be, is not without limit. The fact that the general scope of the inquiry is authorized and permissible does not compel the conclusion that the investigatory body is free to inquire into or demand all forms of information. Validation of the broad subject matter under investigation does not necessarily carry with it automatic and wholesale validation of all individual questions, subpoenas, and documentary demands . . . We understand this to mean -- regardless of the label applied, be it 'nexus,' 'foundation,' or whatever -- that it is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.
Gibson , supra at 934-5. See also Lanza v. New York State Joint Legislative Committee on Government Operation, N.Y., 145 N.E.2d 178 (1957).
6 KRS 61.870(1) defines a "public agency" as:
[E]very state or local officer, state department, division, bureau, board, commission and authority; every legislative board, commission, committee and officer; every county and city governing body, council, school district board, special district board, municipal corporation, court or judicial agency, and any board, department, commission, committee, subcommittee, ad hoc committee, council or agency thereof; and any other body which is created by state or local authority in any branch of government or which derives at least twenty-five percent (25%) of its funds from state or local authority.