C. Competency and commitment proceedings
Even assuming, arguendo, that the public’s right of access extends to civil commitment hearings conducted pursuant to 18 U.S.C. § 4245, the public is not guaranteed a direct view of all that transpires. See United States v. Baker, 45 F.3d 837, 846 n.8 (4th Cir. 1995) (affirming use of videoconferencing to conduct a commitment hearing).
In an unpublished decision, a district court in the Fourth Circuit denied a motion to hold a competency hearing in camera while observing that “[c]ompetency hearings are routinely held in open court in this district,” and holding that “[n]othing in the forensic reports filed in this case addresses details which are so unique or sensitive as to justify a closed hearing and defense counsel have not articulated any compelling reasons to overcome the strong First and Sixth Amendment interests in open criminal proceedings.” United States v. Moussaoui, No. CRIM.01-455-A, 2002 WL 1311734, *1 (E.D. Va. June 11, 2002).
Even though information disclosed in state court guardianship proceeding was “claimed to be subject to the physician-patient privilege,” the U.S. District Court for the Northern District of Indiana held it was “directly relevant to the resolution of the guardianship issue” before the court, and “the factors which might favor preservation of the physician-patient privilege are outweighed by those which favor the First Amendment disclosure.” Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 387 (N.D. Ind. 1992) (granting injunctive relief for newspaper).
In the case of involuntary civil commitment proceedings, Alabama Code § 22-52-9 provides that “[a]ll hearings . . . shall be open to the public unless the respondent or his attorney requests in writing that the hearings be closed to the public.” Ala. Code § 22-52-9(4). Civil commitment proceedings are generally handled by the probate court, although they may be transferred to the circuit court pursuant to Alabama Code § 12-11-10. Ala. Code § 22-52-9; see Ala. Code § 12-11-10. In either case, the probate court maintains records of all commitment proceedings. Ala. Code § 12-11-10.
We know of no statutory or case law authority relating to public access to criminal commitment proceedings generally. Reports by mental health experts made as a part of these proceedings, however, are not part of the public record unless otherwise ordered by the court. Ala. R. Crim. Pro. R. 25.5.(a).
Mental commitment case records (I.C.A.R. 32(g)(10)), records maintained by the court generated to provide a court with a psychological evaluation of an individual or to determine an individual’s need for counseling, rehabilitation, treatment or assistance with personal conflicts (I.C.A.R. 32(g)(17)) and all court filings in guardianship or conservatorship proceedings (I.C.A.R. 32(g)(19)) are exempt from disclosure. In contrast, the Idaho Supreme Court has held that records regarding sex offenders and their commitment are considered public. “Public access assists the community in being observant of convicted sexual offenders in order to prevent them from recommitting sexual crimes.” Smith v. State, 146 Idaho 822, 839, 203 P.3d 1221 (2009).
Commitment proceedings of “mentally ill persons” or “persons with an alcohol or substance abuse problem” are governed by the “care and treatment” acts in Kansas. K.S.A. 59-2945 et seq. governs treatment of mental illness, and K.S.A. 59-29b45 et seq. concerns alcoholism. Other than participants in the proceeding such as the judge, witnesses and counsel, hearings in such matters are closed to the extent desired by the parties. Anyone not necessary for the conduct of the proceedings may be excluded. K.S.A. 59-2959(c) (requests and orders for temporary custody in matters involving mental health); K.S.A. 59-2962 (hearings for mental evaluation of persons not subject to temporary custody orders); K.S.A. 59-2965(c) (trials regarding proposed commitments of persons with alleged metal illness); K.S.A. 59-29b59(c) (temporary custody in connection with alcohol or substance abuse); K.S.A. 59-29b62 (persons with an alcohol or substance abuse problem potentially subject to involuntary commitment); K.S.A. 59-29b65(c) (trials on petitions for involuntary commitment and care and treatment of persons with alcohol or substance abuse problems).
In Kansas, a person is “incompetent to stand trial” when he or she “is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.” K.S.A. 22-3301(1). As competency in this context involves criminal proceedings, the public has access to the court file even when competency is at issue. However, “no statement made by the defendant in the course of any examination provided for by [law], whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.” K.S.A. 22-3302(3). Further, under certain circumstances, the evaluation and treatment are conducted as a care and treatment case for mentally ill persons and therefore subject to those confidentiality requirements. K.S.A. 22-3303(1) and (2). Likewise, the records in cases where persons subject to commitment for being “sexually violent predators” pursuant to K.S.A. 59-29a01 are open except when predators are subject to an involuntary commitment as mentally ill persons.
Records in guardianship and conservatorship actions pursuant to K.S.A. 59-3050 et seq. are also open to public inspection. K.S.A. 59-212(a)(1).
Though Mississippi courts do not specifically address the openness of commitment proceedings, they do note the importance of protecting private mental health records. In at least one case, the Court of Appeals of Mississippi held that a son was liable for a tort claim after releasing his father’s veteran mental health records to news agencies. “A review of the jury instructions shows that the instructions correctly stated the law, that being that Mr. Mack's c-file from the VA was private and that Donald had no right to possess or disclose those records unless the information had become public.” McCorkle v. McCorkle, 811 So. 2d 258, 267 (Miss. Ct. App. 2001). It should be noted that the case focused on liability of releasing private mental health information, not the right to obtain it. Access to competency proceedings has not been addressed by the state’s courts.
Courts are required to “seal all court records relating to the admission and treatment of any person who was admitted, voluntarily or as the result of a noncriminal proceeding, to a public or private hospital, a mental health facility or a program of community-based or outpatient services in this State for the purpose of obtaining mental health treatment.” NRS § 433A.715.
Pursuant to Rule 5-123 NMRA, the following records shall be sealed automatically without order of the court:
“(a) A motion for competency evaluation and responsive pleading;
(b) Any court record that contains the details of a competency, forensic, psychiatric, medical, or psychological assessment or evaluation;
(c) Any court record that includes the details of a treatment plan; and
(d) Any court record that includes an assessment of the defendant's dangerousness under Section 31-9-1.2 NMSA 1978 or an assessment of the defendant's risk under Section 31-9-1.6 NMSA 1978.”
In New Mexico, whenever it appears that there is a question as to the defendant's competency to proceed in a criminal case, any further proceeding in the case shall be suspended until the issue is determined. NMSA 1978, § 31-9-1. The civil commitment process, though technically a civil proceeding, has elements of both criminal and civil proceedings, a hybrid procedure. Therefore, compliance with the due process requirements, as far as burden of proof in commitment proceedings for the mentally ill is concerned, is mandated. In re Valdez, 1975-NMSC-050, ¶ 14, 88 N.M. 338, 341, 540 P.2d 818, 821.
Under Pennsylvania law, hearings on whether a person is incapacitated under Pennsylvania’s Probate, Estates and Fiduciaries Code “may be closed to the public and without a jury unless the alleged incapacitated person or his counsel objects. The hearing shall be closed and with or without a jury if the person alleged to be incapacitated or his counsel so requests.” 20 Pa. Cons. Stat. § 5511(a).
In In re Estate of DuPont, 2 A.3d 516, 520-25 (Pa. 2010), the Pennsylvania Supreme Court held that where records used to declare a person incapacitated have already been sealed by order of the orphan’s court, a person seeking to unseal those records has the burden to “demonstrate good cause” for modifying the already existing sealing order. Applying that standard, the Supreme Court held that the lower court did not err in denying a request to unseal records that were previously filed under seal years earlier in the capacity proceeding of John E. DuPont, an eccentric heir who murdered a former Olympic wrestler living on his property. The Supreme Court first noted that DuPont’s incapacity proceedings “necessitate[d] the exposure of inherently private personal information – such as detailed financial, medical and psychiatric records . . . .” Id. at 521-22. The court then held that “the good cause for sealing the record in this matter is inherent in the nature of the proceeding and is of no less weight today than it was at the time the [c]ourt originally ordered the record to be sealed.” Id. at 519 (citation and quotation omitted).
Section 304(e)(4) of the Pennsylvania Mental Health Procedures Act (PMHPA), 50 P.S. § 7304(e)(4), provides that in “formal” commitment proceedings (i.e., those resulting in commitment not exceeding 90 days), “the hearing shall be public unless it is requested to be private by the person or his counsel.” The Pennsylvania Supreme Court has upheld the constitutionality of that section. See In re Seegrist, 539 A.2d 799, 800 (Pa. 1988). Closure is not mandated simply because a party so requests. See Commonwealth v. Milice, 584 A.2d 997, 998 (Pa. Super. 1991) (“Absent more explicit statutory language and in light of the lengthy and powerful tradition of openness, we are unable to conclude that the Mental Health Procedures Act mandates closure of a hearing on the mere request of a patient.”); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“The potential disclosure of mental illness does not necessarily mandate the closure of judicial proceedings.”). Instead, closure may only be warranted where an open hearing would cause “a clearly defined and serious injury to the party seeking closure,” “something more” than the mere assertion that confidential testimony will be presented. Milice, 584 A.2d at 998.
See Wis. Stat. § 51.20(5):
The hearings which are required to be held under this chapter shall conform to the essentials of due process and fair treatment including the right to an open hearing, the right to request a closed hearing, ….
See Wis. Stat. § 51.20(12):
Every hearing which is held under this section shall be open, unless the subject individual or the individual’s attorney, acting with the individual’s consent, moves that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses may be present. If the subject individual is a minor, every hearing shall be closed unless an open hearing is demanded by the minor through his or her counsel.
See State ex rel. Wisconsin State Journal v. Circuit Court for Dane County, Branch 2, 131 Wis. 2d 515, 389 N.W.2d 73 (Wis. App. 1986):
Section 51.20(12), Stats., read in light of its legislative history and the strong statutory presumption favoring public trials, requires more than a simple request in order to close a reexamination hearing. It requires the trial court to exercise its discretion under the guidelines set forth in LaCrosse Tribuneand McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). Because the trial court, proceeding on an erroneous view of the statute, did not hold a hearing on the question of closure, it abused its discretion.
See State v. Paulick, 210 Wis. 2d 500, 568 N.W.2d 322 (Wis. App. 1997) (unpublished) (Trial court did not abuse its discretion in denying motion to close hearing under Wis. Stat. chapter 980 sexually violent person determination):
The trial court properly denied Paulick’s request for a closed hearing. … Court proceedings are generally open to the public unless otherwise provided by law. … There is a presumption that court proceedings will be held in public and the reasons for closing them to the public must be substantial. … Paulick presented no compelling reason for closing the proceedings to the public. In addition, the record discloses no prejudice resulting from the public hearing.