Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Correctional Psychiatric Center ("KCPC") violated the Open Records Act in the disposition of inmate Virgil Vanhoose's open record request for a copy of all of his medical records. For the reasons stated herein, we find that KCPC did not violate the Act by denying release of a court ordered competency evaluation.
Mr. Vanhoose ("Appellant") sent a request to KCPC, a maximum-security facility operated by the Department for Behavioral Health, Developmental and Intellectual Disabilities, Cabinet for Health and Family Services, on May 1, 2019, for "all records pertaining to patient." KCPC provided the releasable portion of Appellant's medical records to him on May 7, but denied the court ordered competency evaluation because the court order that required the pre-trial competency evaluation ". . . specifies the distribution of information gathered during this process. Information (other than medical) cannot be released to anyone other than persons specifically mentioned in the court order." 1 Appellant submitted an appeal to this office on May 17, 2019, claiming that withholding the competency evaluation violated the Open Records Act.
David T. Lovely, Office of Legal Services, Cabinet for Health and Family Services, responded to the appeal on May 24, 2019, on behalf of KCPC. The Cabinet provided this office with a copy of an "Order for Psychiatric Examination and Treatment" from Boyd Circuit Court, Case No. 18-CR-00651. The Cabinet states that the ". . . order instructed KCPC to evaluate whether Mr. Vanhoose was competent to stand trial, and whether he was criminally responsible for his behavior. Additionally, the Circuit Court ordered that these evaluations be sealed and distributed to only the court, the prosecutor, and Mr. Vanhoose's counsel."
Records are exempt from disclosure . In a long line of Open Records Decisions, 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; 08-ORD-067. KRS 26A.200 2 supports this position and 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. The Attorney General has recognized that KRS 26A.200 is incorporated into the Open Records Act by KRS 61.878(1)(l). 3 17-ORD-139; 11-ORD-015; 14-ORD-071; 09-ORD-102; and 09-ORD-147. Records like the pre-trial competency evaluation at issue in this appeal enjoy a special status and are placed under the exclusive jurisdiction of the court. KCPC is barred, by the court's order, from providing the competency evaluation to Appellant. We find no error in KCPC's denial of Appellant's request.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The record on appeal does not reflect when KCPC received the open records request and so we are unable to determine whether KCPC timely responded to the request pursuant to KRS 61.880(1).
2 KRS 26A.200 states:
(1) All records, as defined in KRS 171.410(1), which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court created under the present Constitution, or a former Constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court.
(2) The Supreme Court shall determine which records were generated, made, or received by or for any court.