Are the psychological reports filed in a Virginia criminal case to determine if a defendant is competent to stand trial open to the public, or are they protected as confidential health records?

Plain-English summary

When a Virginia criminal defendant's competency to stand trial is in question, § 19.2-169.1 directs the court to order a psychiatrist or clinical psychologist to evaluate the defendant and submit a written report to the court and the attorneys of record. The Norfolk Circuit Court Clerk, George Schaefer, asked the Attorney General to resolve a tension built into Virginia law: that report is a court filing, and § 17.1-208 says circuit court records "shall be open to inspection." But it is also obviously a health record, and § 32.1-127.1:03 protects health records from disclosure without the patient's authorization. Which statute wins?

Acting Attorney General William Mims answered with a structural rule: when two statutes overlap, the more specific one prevails. Section 32.1-127.1:03 is general; it covers all health records held by any health care entity in the course of providing health services. Section 17.1-208 is specific; it governs records maintained by circuit court clerks. Because a competency evaluation, once filed with the court, becomes a court record, § 17.1-208 controls. The report is open to inspection, unless the court has sealed it. A judge retains the discretion to seal under the Perreault and Times-World line of cases, balancing the public-access presumption against any compelling government interest in confidentiality, with sealing narrowly tailored to that interest.

The opinion does not change the analysis for the underlying patient-evaluator relationship. Treatment notes and other health records held by the psychiatrist or the hospital remain § 32.1-127.1:03 records. The point of filing changes the analysis: once the document is in the court's file, it becomes a court record.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Three legal regimes interact here. The first is the criminal competency procedure in § 19.2-169.1. When the court finds probable cause to believe a defendant lacks substantial capacity to understand the proceedings or assist counsel, the court orders an evaluation by a psychiatrist or clinical psychologist. Subsection (D) requires the evaluator to submit a written report to the court and to the attorneys of record. That report addresses competency to stand trial, ability to assist counsel, and (if applicable) treatment recommendations.

The second is the judicial-records-access regime in § 17.1-208, codifying the common-law presumption that judicial records are open to public inspection. The statute says: "Except as otherwise provided by law, any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof, except in cases in which it is otherwise specially provided."

The third is the health-records confidentiality regime in § 32.1-127.1:03. Subsection (B) defines a "health record" as material maintained by a health care entity in the course of providing health services. A psychiatrist or clinical psychologist licensed by the Department of Health Professions is a "health care entity," and an evaluation is a "health service." Subsection (A)(3) prevents a person who has received health records from further disclosing them without the patient's authorization.

The Court of Appeals in In re Times-World Corp. had already considered the related question of whether the press and public could attend a criminal competency hearing. Drawing on the federal and state constitutions, the court recognized a qualified right of access to competency hearings, with closure permitted only on a showing of compelling government interest narrowly tailored to that interest.

What the AG concluded

Both § 17.1-208 and § 32.1-127.1:03 apply, but § 17.1-208 prevails because it is more specific. The AG framed this as a routine application of a general principle of Virginia statutory construction: the more specific statute prevails over the more general when they conflict. Section 32.1-127.1:03 covers all health records held by all health care entities. Section 17.1-208 covers a narrower category, records maintained by the circuit court clerks. As to that subset, § 17.1-208 controls.

A competency evaluation, once filed with the court, becomes a court record. Section 19.2-169.1(D) directs the evaluator to submit the report to the court. From the moment of filing, it sits in the court's record and falls under § 17.1-208's presumption of public access.

Courts retain discretion to seal individual reports. The AG was careful to preserve judicial discretion. Citing Perreault v. Free Lance-Star, the opinion notes that a judge can seal a report when there is a compelling reason, with the order narrowly tailored. The default is openness; sealing is the exception.

The public access right is independent of the constitutional access right to hearings. Times-World and Worrell Enterprises recognized a qualified constitutional right to attend competency proceedings. Section 17.1-208 supplies a separate statutory right of access to the written records, which the opinion grounds in the common-law presumption that judicial records are open.

Common questions

Why isn't a psychiatrist's competency report just a confidential health record like any other?
Because the criminal competency procedure injects it into the public legal process. The defendant's mental state is the basis on which the court will decide whether to proceed with trial; the public has an interest in seeing the evidentiary basis for that ruling. Once the document is submitted to the court, it becomes a court record subject to the public-access regime.

Can a defendant prevent the report from being made public?
The defendant (typically through counsel) can ask the judge to seal the report by court order. Under Perreault and Times-World, the judge weighs whether there is a compelling government interest that overrides the public-access presumption and, if so, whether sealing is narrowly tailored to serve that interest. Trauma details, victim identifiers, sensitive medical history, and prejudicial information not relevant to the competency question are common sealing grounds. But the burden is on the party seeking closure.

What about the underlying medical records the evaluator relied on?
Those are not automatically part of the court file. The evaluator's report is what is filed. Underlying treatment records, hospital files, and other health records held by the health care entity remain protected under § 32.1-127.1:03 unless they too are filed with the court.

Can the press get a copy?
Yes. Section 17.1-208 grants access to any person, and the press's right is no greater and no less than the public's. The clerk must furnish copies on request, absent a sealing order.

Does this rule apply to other court-filed mental health documents?
The reasoning extends to other documents that are health records but, once filed with a circuit court, become court records. The court must still consider whether sealing is appropriate. The opinion specifically addresses § 19.2-169.1 competency reports, but the structural logic (specific judicial-records statute controls over general health-records statute) is the same.

What happened if the evaluator believed the report should be confidential?
The evaluator's preference does not control. The General Assembly placed the report in the court's hands by § 19.2-169.1(D); from there, the report follows the court-records access rules. If confidentiality is needed, the route is a motion to seal.

Citations

• Va. Code Ann. § 17.1-208 (public inspection of court records)
• Va. Code Ann. § 19.2-169.1 (competency evaluation procedure)
• Va. Code Ann. § 32.1-127.1:03 (health records privacy)
• Shenandoah Publ'g House, Inc. v. Fanning, 235 Va. 253 (1988)
• In re Worrell Enters., Inc., 14 Va. App. 671 (1992)
• In re Times-World Corp., 25 Va. App. 405 (1997)
• Perreault v. Free Lance-Star, 276 Va. 375 (2008)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-099-Schaefer.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 25, 2009

The Honorable George E. Schaefer
Clerk of Norfolk Circuit Court
100 Saint Paul's Boulevard
Norfolk, Virginia 23510

Dear Mr. Schaefer:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a competency evaluation report ordered by and submitted to a court pursuant to § 19.2-169.1, which is not sealed by court order, is open to inspection under § 17.1-208 or protected by § 32.1-127.1:03.

Response

It is my opinion that a competency evaluation report that was ordered by and submitted to a court as part of the court's record is open to inspection under § 17.1-208, provided such report is not sealed by court order.

Applicable Law and Discussion

When a court finds probable cause to believe that a criminal defendant "lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense," the court must order a competency evaluation.[1] The evaluator must submit a written report to the court and attorneys of record addressing, among other things, the defendant's capacity to understand the proceedings and his ability to assist his attorney.[2] You ask whether the public may access the evaluation report.

There is a presumption in the common law that judicial records are open to public inspection.[3] Section 17.1-208, which codifies this presumption,[4] provides, in relevant part, that:

Except as otherwise provided by law, any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof, except in cases in which it is otherwise specially provided.

Section 32.1-127.1:03 establishes an individual's privacy right to his health records and prohibits health care entities from disclosing health records except when permitted or required by state law. Further, § 32.1-127.1:03(A)(3) prevents a person to whom health records have been disclosed from further disclosing the records without first obtaining the authorization of the individual who is the subject of the records. Section 32.1-127.1:03(B) defines a "health record" as "any written, printed or electronically recorded material maintained by a health care entity in the course of providing health services to an individual concerning the individual and the services provided." A health record further includes "information otherwise acquired by the health care entity about an individual in confidence and in connection with the provision of health services to the individual."[5] A "health care entity" encompasses any health care provider, including all persons who are licensed by any health regulatory board within the Department of Health Professions.[6] "Health services" include, but are not limited to, examination, diagnosis, and evaluation.[7] Based on these definitions, a competency evaluation report prepared by a psychiatrist or clinical psychologist that addresses the defendant's capacity and treatment is a "health record." However, § 19.2-169.1(D) requires the evaluator to submit the report to the court and to the attorneys of record, which places the report under the authority of the court subject to the provisions of § 17.1-208.

With respect to competency evaluation reports, it is clear that both §§ 17.1-208 and 32.1-127.1:03 apply. Section 32.1-127.1:03 applies generally to all health records and their use and disclosure. However, § 17.1-208 applies to all records and papers maintained by the clerk of the court, which would include competency evaluation reports filed as part of a court record. When there is an apparent conflict between different statutes, the more specific statute prevails.[8] Because § 17.1-208 specifically governs the records and papers maintained by the circuit court clerks, § 32.1-127.1:03 must yield to § 17.1-208.[9]

Applying these principles, the Court of Appeals of Virginia has considered whether the media and the public[10] may have access to a criminal competency hearing as well as the documents admitted into evidence during such hearing.[11] The Court relied upon the federal and state constitutions[12] to grant such access, noting that courts in other jurisdictions favored a qualified right of access to competency hearings[13] and that public access to such hearings can play a significant positive role in criminal competency hearings.[14] A decision to seal a report rests within the sound discretion of the court.[15]

Conclusion

Accordingly, it is my opinion that a competency evaluation report that was ordered by and submitted to a court as part of the court's record is open to inspection under § 17.1-208, provided such report is not sealed by court order.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
Acting Attorney General
6:765; 1:941/08-099

1. VA. CODE ANN. § 19.2-169.1(A) (2008).
2. Section 19.2-169.1(D).
3. See, e.g., In re Worrell Enters., Inc., 14 Va. App. 671, 680, 419 S.E.2d 271, 277 (1992).
4. Shenandoah Publ'g House, Inc. v. Fanning, 235 Va. 253, 258-59, 368 S.E.2d 253, 255-56 (1988) (construing legislative history of § 17-43, predecessor to § 17.1-208).
5. VA. CODE ANN. § 32.1-127.1:03(B) (Supp. 2008) (defining "health record").
6. See id. (defining "health care entity" and "health care provider").
7. Id. (defining "health services").
8. See, e.g., Op. Va. Att'y Gen. No. 08-104, available at http://www.vaag.com/OPINIONS/2009opns/08-104-Bulova-Sickles.pdf, and cases cited therein.
9. See Perreault v. Free Lance-Star, 276 Va. 375, 391, 666 S.E.2d 352, 360 (2008) (noting statutory presumption of public access to judicial records); see also 2000 Op. Va. Att'y Gen. 94, 95 (concluding general provisions of § 32.1-271(A), which prohibits inspection and disclosure of vital records, must give way to specific provisions of § 17.1-208).
10. The press and public generally enjoy the same right of access. See Worrell Enterprises, 14 Va. App. at 676, 419 S.E.2d at 274.
11. In re Times-World Corp., 25 Va. App. 405, 488 S.E.2d 677 (1997).
12. Id. at 419, 488 S.E.2d at 684. Access to a criminal competency hearing can only be denied by showing a compelling governmental interest and the denial must be narrowly tailored to serve that interest. Id. at 415-16, 488 S.E.2d at 682.
13. Id. at 414, 488 S.E.2d at 681 (citing cases from other jurisdictions).
14. Id. at 415, 488 S.E.2d at 682.
15. See Perreault, 276 Va. at 389, 666 S.E.2d at 359-60.