RENDERED : MARCH 18, 2010
TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILY SERVICES
APPEAL FROM COURT OF APPEALS
CASE NO . 2008-CA-000046
KENTON CIRCUIT COURT NO . 07-CR-00467-001
HONORABLE GREGORY M . BARTLETT,
JUDGE, KENTON CIRCUIT COURT
LARRY COLE; JONATHAN COX;
AND SANDRA D. YOUNG (REAL PARTIES IN
OPINION OF THE COURT BY JUSTICE NOBLE
Appellant, the Commonwealth of Kentucky, Cabinet for Health and
Family Services, appeals to this Court from an order of the Court of Appeals
denying a petition for writs of prohibition and mandamus . For the reasons set
forth below, the order of the Court of Appeals is affirmed .
Larry Cole, real party in interest', co-occupied a residence with Sandra
Young. Police searched their residence for controlled substances, pursuant to
a warrant . This warrant was supported in part by an affidavit, which described
the contents of a Kentucky All-Schedule Prescription Electronic Reporting
(KASPER) report on Young.
After Cole was indicted for trafficking in a controlled substance, he
moved for the discovery of three KASPER reports . In particular, he requested
his own report, as well as those of his co-resident Young and his co-defendant
Jonathan Cox. He also moved to suppress the affidavit supporting the search
warrant as containing false and misleading information about the KASPER
report on Young. The trial court granted his motion for discovery .
The Cabinet moved to vacate this order, arguing that the disclosure
restrictions on KASPER reports in KRS 218A.202 prevented the trial court from
ordering discovery. The court held a hearing and denied the Cabinet's motion
to vacate the prior order.
The second order stated that the court had previously found that Cole
made a sufficient showing that the records he sought "may contain information
which is relevant or exculpatory to the Defense." The court then ordered that
the documents be produced for in camera review. The order concluded that
the court had the authority to order production of these documents because
Cole's constitutional rights to compulsory and due process prevailed over any
' Jonathan Cox and Sandra Young were also named as real parties in interest by the
Cabinet in their writ petition and on this appeal. Neither Cox nor Young, however,
has filed a brief; nor did they join or oppose the Cabinet's writ petition .
statutory bar against disclosure the Cabinet was asserting, citing
Commonwealth v. Barroso, 122 S.W .3d 554 (Ky. 2003) .
The Cabinet filed a petition for writs of prohibition and mandamus,
seeking to prevent the enforcement of the trial court's discovery order. The
Court of Appeals held oral argument and denied the writs . The Cabinet now
appeals to this Court. In the meantime, the proceedings in the Kenton Circuit
Court have been stayed.
II . Analysis
"[Wjrits of prohibition and mandamus are extraordinary in nature, and
the courts of this Commonwealth `have always been cautious and conservative
both in entertaining petitions for and in granting such relief."' Kentucky
Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 12 (Ky . 2007) (quoting Bender v.
Eaton, 343 S .W .2d 799, 800 (Ky. 1961)) . A writ for prohibition may be issued if
the lower court is (1) acting outside its jurisdiction and there is no remedy
through an application to an intermediate court, or (2) acting erroneously
within its jurisdiction and there would be no adequate remedy by appeal .
Hoskins v. Maricle, 150 S .W.3d 1, 10 (Ky. 2004) .
The Cabinet argues that the trial court acted erroneously within its
jurisdiction by ordering discovery of KASPER records because KRS 218A.202
strictly prohibits their disclosure . It claims that because no person "had any
constitutional right to have KASPER enacted," and because "the General
Assembly . . . had the constitutional prerogative to limit disclosure of KASPER
information," it follows that the trial court could not order any disclosure that
the statute prohibits.
prohibits the disclosure of KASPER reports to criminal
defendants, their counsel, or to the trial court in this case . Subsection (6)
provides that KASPER reports may be disclosed "only . . . to persons and
entities authorized to receive that data under this section," and that
"[dlisclosure to any other person or entity . . . is prohibited unless specifically
authorized by this section."
Neither criminal defendants nor their counsel are
so authorized . Moreover, courts are not specifically authorized to receive these
reports, subject to a few exceptions, see KRS 218A .202(6)(h)
which would apply to the in camera review the court ordered here .
The Cabinet argues that this statutory prohibition controls . However,
this argument overlooks the unique constitutional considerations that arise in
criminal cases. Criminal cases are simply different because of the unique
constitutional rights enjoyed by criminal defendants.
Whatever prohibition against disclosure
makes, it cannot
infringe on a criminal defendant's rights under the Fifth, Sixth, and Fourteenth
Amendments of the U.S . Constitution or Section 11 of the Kentucky
Constitution . Under the Cabinet's view, a criminal defendant could not
discover any report, even his own. It would not matter if the report contained
exculpatory information, or even if it was exonerating. The trial court would be
unable to compel disclosure, even by a court order, and even if the court first
screened the documents in camera to protect the confidentiality of any
information that was not actually exculpatory . This cannot be the case.
It is well established that a criminal defendant has a constitutional right
to discover exculpatory documents, even if those documents are confidential or
if their disclosure is prohibited by rule or statute . See generally Barroso, 122
S.W.3d at 558-63 . The U.S. Supreme Court has held that a criminal
defendant's Sixth Amendment right to confront witnesses prevails over the
government's interest in keeping juvenile records confidential . Davis v. Alaska,
415 U .S. 308, 320 (1974) . It has also held that a defendant's due process right
to present a defense prevails over evidentiary rules and privileges . Chambers v.
Mississippi, 410 U. S . 284, 298, 302 (1973) ; Roviaro v. United States, 353 U . S .
53, 60-61 (1957) . And a criminal defendant's right to compulsory process
prevails over a statute prohibiting persons from testifying at trial . Washington
v. Texas, 388 U .S . 14, 23 (1967).
In addition, the U .S. Supreme Court has held that a defendant's right to
discover exculpatory evidence in the government's possession prevails over a
qualified privilege . Pennsylvania v. Ritchie, 480 U .S. 39, 56-58 (1987) . In
Barroso, this Court extended the logic of Ritchie, unanimously holding that a
defendant's constitutional right to discover exculpatory evidence prevails over
absolute privileges, too. Barroso, 122 S.W .3d at 561 .
The common and necessary thread of these cases is that a criminal
defendant's constitutional rights to exculpatory information prevail over rules
and statutes that prohibit the defendant from receiving the information. This
is true even if those rules or statutes purport to absolutely prohibit disclosure .
Id. To put it simply, "constitutional rights prevail over conflicting statutes and
rules." Id. at 558.
This is not to say, of course, that a criminal defendant has a right to
review any confidential documents by baselessly asserting the documents
might be helpful . When dealing with confidential records, this Court has
previously stressed that it is necessary to "`preclude fishing expedition[s] to see
what may turn up' and `unrestrained foray[s] into confidential records in the
hope that the unearthing of some unspecified information' could be useful to
the defense. Id. at 563 (citations omitted, alterations in original) .
Thus, in Barroso, this Court held that two steps are required before a
court may give a criminal defendant access to confidential records. First, the
defendant must produce "evidence sufficient to establish a reasonable belief
that the records contain exculpatory evidence." Id. at 564 . Second, the trial
court must conduct an in camera review to determine whether or not the
records sought actually do contain such evidence . Id. at 563-64 .
The Barroso procedure protects a criminal defendant's constitutional
rights to exculpatory records, as well as the government's interests in keeping
certain records confidential . Indeed, as this Court has said regarding a rape
victim's confidential psychotherapy reports: "[T]he trial judge's in camera
inspection of [the victim's] psychotherapy records protect[s the defendant's]
constitutional rights without destroying [the victim's] interest in protecting the
confidentiality of those portions of the records . . . irrelevant to the
[defendant's] interests ." Id. at 564; accord Ritchie, 480 U .S . at 61 ("An in
camera review by the trial court will serve [the defendant's] interest [in
obtaining child-abuse records for his defense] without destroying the
Commonwealth's need to protect the confidentiality of those involved in childabuse investigations .") .
Turning to the case before us, the trial court's discovery order was proper
because it followed the Barroso procedure for the disclosure of confidential
records in a criminal trial. First, it found that the defendant made a sufficient
showing that the "records may contain information which is relevant or
exculpatory to the Defense." The Cabinet does not argue that this finding was
erroneous. Second, after finding that the defendant met his burden, the court
ordered the Cabinet to produce the records under seal for in camera review to
see if the records actually were exculpatory . This protects both the defendant's
rights to exculpatory material and the Cabinet's interests in the confidentiality
of the records, and it is precisely what Barroso required .
The Cabinet tries to distinguish Barroso by arguing that the report in
that case was "specific" and "detailed," whereas KASPER reports contain only
"raw data." This argument fails for two reasons. First, it is irrelevant. Barroso
relies on the report being potentially exculpatory, not on it being specific or
detailed . A criminal defendant has a right to raw data, too, should it be
exculpatory. Second, the claim that these reports contain only raw data is
misleading, in that it implies the reports contain only an abstract data set
requiring substantial analysis to have any meaning. In fact, the reports
include who the patient is, who prescribed the drugs, who dispensed the drugs,
what specific drug was dispensed, the metric quantity of drugs dispensed, the
day's supply of drugs dispensed, and when they were dispensed . 902 KAR
55 :110, at § 2(2) ; see also KRS 218A .202(4) . Such information is detailed and
specific . More importantly, it is readily understandable and concrete, requiring
little if any further analysis before its impeachment value becomes apparent .
It is difficult to see what else the Cabinet could want the trial court to do
to protect the confidentiality of the reports, short of denying outright a criminal
defendant his constitutional right to reports in the government's control which
may be exculpatory. Clearly, the trial court could not have done this . 2
As the proponent of the writ, the Cabinet bears the burden of showing
why it is entitled to the extraordinary relief it requests. Here, Cole has an
unquestionable constitutional right to exculpatory evidence in the
government's possession, and the trial court had the power to order an in
camera review of the reports to secure this right under Barroso. Consequently,
the Cabinet can succeed only by showing that the trial court failed to follow the
Barroso procedure . It could have done this, for example, by establishing that
the trial court was clearly erroneous in finding that the defendant met his
initial burden to show that the records might be exculpatory. The Cabinet has
not done this, or even tried to do so .
Instead, the Cabinet's only argument is that the statute prohibits
disclosure and "[c]ourts may not add or subtract from statutes." No court has
added or subtracted anything from any statute; the Kentucky and U.S .
Constitutions have already done all the work .
2 Interestingly, the record reveals that the prosecutor has a copy of two of the three
KASPER reports that the trial court ordered the Cabinet to produce. The record is
not clear from whom the prosecutor received the reports, but it is clear that the
prosecutor has them. This is noteworthy because the prosecutor is not specifically
authorized to receive these reports under KRS 218A.202 either. It appears from this
that the Cabinet thinks it can rely on a statute to deny a criminal defendant access
to potentially exculpatory reports, even though the prosecution has a copy of those
same reports in violation of the same statute.
For the foregoing reasons, the order of the Court of Appeals denying the
Cabinet's petition for writs of mandamus and prohibition is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Ronald W. Crawford
Cabinet for Health & Family Services
Office of Legal Services
275 East Main Street, 5W-B
Frankfort, Kentucky 40601-2321
Honorable Gregory M. Bartlett
Kenton Circuit Judge
Kenton County Courthouse
Covington, Kentucky 41011
COUNSEL FOR REAL PARTY IN INTEREST, LARRY COLE :
W. Robert Lotz, Jr.
120 West Fifth Street
COUNSEL FOR REAL PARTY IN INTEREST, JONATHAN COX:
Michael Andrew Hummel
333 Scott Street
Covington, Kentucky 41011
COUNSEL FOR REAL PARTY IN INTEREST, SANDRA D . YOUNG:
David E . Davidson
Cobb & Oldfield
213 East 4th Street
PO Box 1078
Covington, Kentucky 41012-1078