83-178. Director; records; contents; confidential; classification and treatment of persons committed.

(1) The director shall establish and maintain, in accordance with the regulations of the department, an individual file for each person committed to the department. Each individual file shall include, when available and appropriate, the following information on such person:

(a) His or her admission summary;

(b) His or her presentence investigation report;

(c) His or her classification report and recommendation;

(d) Official records of his or her conviction and commitment as well as any earlier criminal records;

(e) Progress reports and admission-orientation reports;

(f) Reports of any disciplinary infractions and of their disposition;

(g) His or her parole plan; and

(h) Other pertinent data concerning his or her background, conduct, associations, and family relationships.

(2) Any decision concerning the classification, reclassification, transfer to another facility, preparole preparation, or parole release of a person committed to the department shall be made only after his or her file has been reviewed. The content of the file shall be confidential and shall not be subject to public inspection except by court order for good cause shown and shall not be accessible to any person committed to the department. An inmate may obtain access to his or her medical records by request to the provider pursuant to sections 71-8401 to 71-8407 notwithstanding the fact that such medical records may be a part of his or her individual department file. The department retains the authority to withhold mental health and psychological records of the inmate when appropriate.

(3) The program of each person committed to the department shall be reviewed at regular intervals and recommendations shall be made to the chief executive officer concerning changes in such person's program of treatment, training, employment, care, and custody as are considered necessary or desirable.

(4) The chief executive officer of the facility shall have final authority to determine matters of treatment classification within his or her facility and to recommend to the director the transfer of any person committed to the department who is in his or her custody.

(5) The director may at any time order a person committed to the department to undergo further examination and study for additional recommendations concerning his or her classification, custodial control, and rehabilitative treatment.

(6) Nothing in this section shall be construed to limit in any manner the authority of the Public Counsel to inspect and examine the records and documents of the department pursuant to sections 81-8,240 to 81-8,254, except that the Public Counsel's access to an inmate's medical or mental health records shall be subject to the inmate's consent. The office of Public Counsel shall not disclose an inmate's medical or mental health records to anyone else, including any person committed to the department, except as authorized by law.

Source

Annotations

For purposes of subsection (2) of this section, "good cause" means a logical or legally sufficient reason in light of all the surrounding facts and circumstances and in view of the very narrow access intended by the Legislature. Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867 N.W.2d 553 (2015).

Whether a person seeking access to an inmate's institutional file shows good cause is a mixed question of law and fact. What the parties show presents questions of fact, which an appellate court reviews for clear error. Whether the showing establishes good cause is a question of law, and an appellate court reviews questions of law independently. Where the facts are undisputed, the entire question becomes one of law. Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867 N.W.2d 553 (2015).

When a defendant in a capital sentencing proceeding places his or her mental health at issue either by asserting mental retardation or by asserting mental illness, there is good cause under subsection (2) of this section for the prosecution to obtain access to the defendant's mental health records in the possession of the Department of Correctional Services. State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2009).

Because this section requires that files be maintained in accordance with the regulations of the department, it is clear from the Department of Correctional Services' own regulations that records of disciplinary proceedings need not be maintained where the result of those proceedings is dismissed on appeal. Nissen v. Nebraska Dept. of Corr. Servs., 8 Neb. App. 865, 602 N.W.2d 672 (1999).