Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Correctional Psychiatric Center properly denied Robert D. Townsend's May 21, 1999, request for a copy of his court ordered evaluation to determine his competency to stand trial. For the reasons that follow, we find that KCPC did not violate the Open Records Act in denying Mr. Townsend's request.
In a response dated June 2, 1999, KCPC's medical records director, Sharon W. Proctor, responded to Mr. Townsend'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 any one 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 a supplemental response directed to this office after Mr. Townsend initiated his appeal, C. David Johnstone confirmed the views expressed by Ms. Proctor. Mr. Johnstone, assistant counsel in the Cabinet for Health Services, the agency which operates KCPC as a psychiatric facility in LaGrange, Kentucky, advised the Attorney General that:
On October 17, 1997, the Montgomery Circuit entered an Order for Psychiatric Examination and Treatment ("the Order"), referring Robert Townsend to KCPC for a pre-trial determination of his competency to stand trial on burglary charges. The Court directed KCPC to examine Townsend and submit a report to the Court. The Order also directed KCPC to provide a copy of the report to the Commonwealth's Attorney and to Townsend's defense Counsel, Stuart Read. The Order did not specify that Townsend be furnished with a copy of the report.
Mr. Johnstone enclosed a copy of Montgomery Circuit Court Judge William B. Mains's order reflecting that the only persons to whom KCPC's report could be released were himself and counsel. Mr. Johnstone reiterated that KCPC denied Mr. Townsend's request on the basis of Judge Mains's order limiting distribution of the confidential report. Based on opinions of this office dating back to 1980, we conclude that KCPC properly denied the request.
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. Townsend's case and the attorneys representing Mr. Townsend 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. Release of 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, "The Open Records Act in no way supersedes 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 about whom the report was made would be entitled to receive a copy of it, it is within the court's discretion to conclude otherwise. Judge Mains so concluded in Mr. Townsend's case. It is not appropriate for this office to question the court's judgment or to invade the court's prerogative in determining to whom the report should be released. Having been placed under an order limiting distribution, it is not accessible by means of an open records request. In addition, Mr. Townsend can speak with his attorney about being provided with a copy of the report.
A party aggrieved by this decision may appeal it by initiating 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.