Air Force Court of Criminal Appeals

In re RW

This writ petition is interesting because of what it doesn't say and for what it suggests might be something for Congress to consider.

We may remember several cases involving Mil. R. Evid. 513 where something went awry in the process of retrieving the materials for an in-camera review. See, e.g., here, and here.

While not explicit, it appears the military judge was being a little creative to avoid inadvertent spillage with the equivalent of a "special master" to filter the records. To do that he created an order to have what AFCCA characterizes as a "taint team" to obtain and review the subject records before they are provided to him. Unfortunately, that creativity exceeded what is allowed under the current rules. So,

​For the reasons set forth below, we grant the petition in part. We vacate the military judge’s 27 September 2023 written order and oral supplement to that order to release Petitioner’s “mental health diagnosis and treatment records” maintained by the 31st Operational Medical Readiness Squadron Mental Health Flight (31 OMRS/MHF) located at Aviano Air Base, Italy, to Ms. CM, a civilian medical law attorney, and subsequently to Major (Maj) AW, a military medical law attorney (both of whom were assigned to JACC), for review and identification of releasable treatment and diagnosis information, and review and redaction of “any and all matters subject to privilege under [Mil. R. Evid.] 513.”

AFCCA focuses on the missteps and resolves the case on authority issue alone, and sends the case back.

Petitioner asserts that, in issuing the order to produce certain of her mental health records, the military judge erred in three general respects: (1) failing to hold a hearing as required by Mil. R. Evid. 513; (2) failing to apply the process and procedures as required by R.C.M. 703(g)(3) (arguing the Petitioner’s mental health records physically maintained by the 31 OMRS/MHF were not “within the possession, custody, or control of military authorities” within the meaning of R.C.M. 701(a)(2)); and (3) issuing an order outside the scope of the military judge’s authority.

On issue two, AFCCA has already opined that (unless there is some evidence that the 31 OMRS/MHF is not a military authority) such records likely are within... See, e.g., In re KS, et. al., 2023 CCA LEXIS 406 *9, citing In re HVZ.

Issue one of course has legs.

Having determined interpretation and application of Mil. R. Evid. 513(e)(3) was necessary—as evidenced by his order—the military judge did not address the four prerequisites for in camera review of qualifying mental health records in accordance with Mil. R. Evid. 513(e)(3)(A)–(D). Cf. In re AL, Misc. Dkt. No. 2022-12, 2022 CCA LEXIS 702, at *21 (A.F. Ct. Crim. App. 7 Dec. 2022) (order) (granting Article 6b, UCMJ, petition on Mil. R. Evid. 513 grounds where the military judge ordered production of entirety of AL’s Family Advocacy Program mental health records over AL’s claims of privilege without adhering Mil. R. Evid. 513(e) procedural safeguards)). Furthermore, even if the military judge had considered those prerequisites, Mil. R. Evid. 513(e)(3) authorizes only one person to complete in camera review: the military judge.

Issue three is where Congress might want to consider a "special master" rule for disclosure of Mil. R. Evid. 513 material. For example, if an MTF has a dedicated legal advisor, could not the records be filtered by that legal advisor before surrender to the military judge? MTF legal advisors are well-informed and experienced in protecting HIPAA material, credentialing materials, quality assurance information, etc. Plus they have legal training and would be better positioned to understand issues of relevance and discovery. That way the reviewed information is contained within the MTF bubble and less likely to be accidentally exposed.

​Just a thought.

Here's the link to the CAAF litigation in HVZ and BM.