Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Correctional Psychiatric Center, a maximum security facility operated by the Department for Mental Health and Mental Retardation Services, Cabinet for Health and Family Services, violated the Open Records Act in the disposition of Mark L. Crossland's October 29, 2007, request for a copy of "the final evaluation that was used in a competency hearing held in the McCracken County Courthouse on July 20, 2006, in Div. 1 . . .," and his January 30, 2008, request for copies of all of his medical records. Although KCPC may have violated KRS 61.880(1) in failing to respond to his October 29 request, that request having apparently been mailed directly to a "Dr. Simon," KCPC properly responded to his January 30 request by advising him that he could obtain a copy of his medical records upon submission of a HIPAA compliant authorization for release of said records, and by denying him access to his pre-trial competency evaluation on the basis of KRS 61.878(1)(l), incorporating KRS 26A.200 into the Open Records Act. We therefore find that, with the exception of the possible procedural violation noted, KCPC did not violate the Act in the disposition of Mr. Crossland's request.
As noted, Mr. Crossland directed his October 29 request to a "Dr. Simon" at KCPC. That request apparently went unanswered. We have determined that Dr. Steven Simon is a psychologist employed by KCPC, and that it was to him, rather than the Director of Medical Records, that his request was mailed. Assuming the request reached Dr. Simon, it should have been forwarded to the KCPC records custodian, or, pursuant to KRS 61.872(4) , 1 Mr. Crossland notified that the recipient was not the records custodian and the name and location of the records custodian provided to him. Because it is not altogether clear that Mr. Crossland's request reached Dr. Simon, we are reluctant to assign error. Nevertheless, we urge KCPC to review the cited provision to avoid a recurrence of this problem.
Turning to the substantive issues in this appeal, we find that KCPC properly denied Mr. Crossland's request for his pre-trial competency evaluation on the basis of KRS 61.878(1)(1) 2 and KRS 26A.200. In a line of open records decisions dating back to 1995, this office has recognized that a court ordered competency evaluation is:
created at the direction of the court . . . . 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.
99-ORD-109, p. 2; see also 95-ORD-89; 04-ORD-021; 05-ORD-056; 05-ORD-257. This position finds support in KRS 26A.200 which 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. Records such as the pre-trial competency evaluation at issue in this appeal, enjoy a special status and are placed under the exclusive jurisdiction of the court. Copies of 95-ORD-89, 99-ORD-109, 04-ORD-021, 05-ORD-056, and 05-ORD-257 are attached hereto and incorporated by reference. We find no error in KCPC's denial of this portion of Mr. Crossland's request.
Similarly, we find no error in KCPC's disposition of that portion of Mr. Crossland's request relating to his remaining medical records. KCPC did not deny him access to these records, but directed him to submit an executed HIPAA compliant authorization as a precondition to release. Because the "Release of Information (HIPAA)" attached to his request was unsigned and undated, it did not satisfy the requirements of the federal law set forth at 45 C.F.R. Part 164.508. Although KCPC provided him with a copy of the required release of information, KCPC has not received the completed, signed release from Mr. Crossland to date.
In 05-ORD-054, this office identified the Cabinet for Health and Family Service's Department of Mental Health and Mental Retardation Services, the agency that oversees operation of KCPC, as a covered entity for purposes of HIPAA analysis, and some of the records generated by and for the entities it operates as containing protected health information for purposes of HIPAA analysis. KCPC is described on the agency's website as a "maximum security facility [that] provides pre-trial forensic evaluations to determine mentally ill individuals' competency to stand trial and inpatient treatment for individuals convicted of felony offenses who are transferred from other institutions within the Corrections Cabinet." http://mhmr.ky.gov/facilities/default.asp. Clearly, records generated in the course of patient evaluation and treatment contain protected health information and trigger HIPAA's protections and requirements. Here, as in 05-ORD-054, we find that KCPC properly conditioned release of the requested medical records on submission of a properly executed HIPAAcompliant authorization for release of information. Upon submission of this executed release, Mr. Crossland may obtain these records.
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.
Footnotes
Footnotes
1 KRS 61.872(4) thus provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
2 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.