Court officials moved to keep key Anthony Montwheeler document off limits

Anthony Montwheeler is wheeled out of a Malheur County Circuit Courtroom in May. State officials successfully kept a crucial public document regarding the Nampa man’s mental fitness from public view. (The Enterprise/Pat Caldwell).

VALE – State court administrators recently kept the public from a key report about the fitness of accused murderer Anthony Montwheeler despite internal warnings that such records weren’t “legally confidential.”

When that secrecy was challenged, agency officials privately approached a state judge, resulting in a court order blocking the report from public view.

The move was the latest instance of Oregon officials citing Montwheeler’s privacy to justify keeping government documents under wraps.

Montwheeler, 50, is charged with aggravated murder, kidnapping and assault. He is accused of kidnapping and killing an ex-wife in January 2017 and killing a Vale man and injuring his wife in a subsequent police pursuit.

Last year, the Oregon State Hospital and the state Psychiatric Security Review Board attempted to block public access to records on Montwheeler. The security review board ultimately was forced to release records it held from both agencies.

The state court system last month treated another court document as confidential – a deputy’s request to place Montwheeler in restraints for a court appearance. The state subsequently disclosed the request after the Enterprise questioned the secrecy.

Montwheeler’s case has drawn intense interest across Malheur County and the state. His case is notable because he had been judged guilty except for insanity in a previous kidnapping. State officials released him in December 2016 after he asserted he had been faking his mental illness.

His current prosecution has been stalled because of new questions about his mental state. Despite being under indictment for more than a year, he has yet to enter a plea.

His attorney, David Falls of West Linn, has said Montwheeler may assert an insanity defense against the new charges. A state judge during a hearing last fall said she was disturbed by Montwheeler’s conduct while in jail and ordered him evaluated. For Montwheeler, that meant a return trip to the Oregon State Hospital, where he had spent years in his earlier case. The hospital was tasked with determining whether he was mentally fit for trial. On Jan. 11, the 37-page evaluation landed in the Malheur County Circuit Court case file of State v. Montwheeler. Such case files typically are open to the public, accessible online or at the courthouse, with select documents remaining confidential by law. In this instance, state court officials elected to block public access to the report.

State court officials said they weren’t prohibited by law from releasing the report but said their concerns about privacy and federal law led them to keep the report off limits.

Last year, state officials cited similar grounds to block public access to records about Montwheeler’s time under the jurisdiction of the Psychiatric Security Review Board and his treatment at the Oregon State Hospital. He was under the state’s charge for 20 years after he was found guilty except for insanity in 1997.

Attorney General Ellen Rosenblum, however, found there was “overwhelming evidence” that the public need for the reports was more important than the privacy concerns. The state released the records under her order.

The office of State Court Administrator Nancy Cozine took steps to avoid facing a similar order after the Enterprise questioned the secrecy around the latest Montwheeler report.

Cozine’s office didn’t initially disclose that the staff doubted its legal authority to make such a document confidential. That doubt became clear only after the Enterprise obtained documents from the agency following public records requests. An agency lawyer subsequently acknowledged in an email that those documents “do not necessarily clearly articulate the full reason of how psychological reports became confidential.” The issue of electronic secrecy became a challenge for the state court system when court files started moving online in 2012. Agency officials had to decide how to manage confidential records that state law mandated be kept secret. That included cases involving juveniles and adoptions, among others. The state court work group tasked with sorting out what was open and what was confidential initially didn’t discuss the mental health evaluations now at issue in the Montwheeler case. According to state records, a list of records of concern didn’t include such evaluations.

“Over the year that the group met, nobody else on the group thought about raising them as an issue,” Lisa Norris-Lampe, an attorney at the state Judicial Department wrote in a June 14, 2016, email.

“We have reflexively treated these documents as confidential without any sort of reasoned analysis and that very well may be in error,” Josh Nasbe, counsel in the state court administrator’s office wrote in a June 14, 2016, email. He wrote in a second email that “I understand the consensus to be that these documents are not legally confidential.”

Nasbe urged an internal review be done to settle the matter. Norris-Lampe recommended just such a review in a Jan. 6, 2017 email to the state court administrator. She summarized laws that could be used to keep the evaluations away from the public but noted that “all the statutes just mentioned do not themselves preclude disclosure” or “designate such reports as ‘confidential.’

She recommended the staff determine “whether such reports are appropriately designated as confidential.” She said the agency might work with the Oregon State Hospital and others for “legislative clarification.”

State court officials said they could find no record that any such review was done or clarifying legislation sought. The uncertainty over treating evaluations as secret still wasn’t resolved when the state hospital in January sent its Montwheeler report to the Vale court.

State court administrators gave no clue to that internal doubt when they turned aside the Enterprise’s request to see the Montwheeler report.

Marilee Aldred, administrator of the Malheur County Circuit Court, said the record could be withheld to protect Montwheeler’s privacy and because it was a medical record.

Under Oregon law, Aldred is considered the “custodian” of the court file and responsible for applying the state’s public records law. After she declined the newspaper’s request, the Enterprise petitioned Rosenblum, seeking an order that the evaluation be disclosed to the public.

Cozine’s office didn’t wait to see how Rosenblum would rule on whether the public was entitled to see the report.

According to records and statements, Aldred already had taken a different tack, asking the state judge handling Montwheeler’s criminal case to consider the newspaper’s request. Judge Thomas Ryan of the Multnomah County Circuit Court had been assigned to handle the case because two local judges were recused. What Aldred asked the judge to do isn’t clear. She declined an interview and didn’t respond to written questions about her actions. In response to a records request, she said she had no record of communications with the judge.

More recently, she responded to draft story excerpts concerning her contacts with the judge provided by the Enterprise for her to review for accuracy.

“I let the judge know that you and the reporter had asked me for access to the report,” Aldred said in a letter to the Enterprise. “The judge told me that was a decision that, as the judge presiding over the case, he was the person who made decisions in the case.”

Phil Lemman, now acting deputy state court administrator, advised Aldred in an email that she should push the judge to decide on public access because of the pending decision from the attorney general’s office. He wrote that she should “let Judge Ryan know of this additional time sensitivity.”

In a later statement, Lemman said he wasn’t pushing for the judge to seal the Montwheeler report but instead decide the matter before the Justice Department could.

“I was promoting an efficient use of public resources,” Lemman said. He said he wanted to avoid “unnecessary expenditure of time, money and effort” by the state court administrator’s office.

He got his wish.

On Feb. 6, Ryan said in an order that the evaluation should be held confidential. The judge said releasing the report “would constitute an unreasonable invasion of privacy” and “nothing before the court establishes that the public interest requires disclosure.”

He acted after soliciting views from David Goldthorpe, the Malheur County district attorney, and Falls, Montwheeler’s attorney. Both wrote the judge that the report should be confidential, with Goldthorpe contending it wasn’t a public record in the first place. A day later, Ryan granted the Enterprise’s request to submit an explanation for why the document should be disclosed to the public. The newspaper did so a week later, including in its response Attorney General Ellen Rosenblum’s conclusion the year before that the public interest in other state hospital records regarding Montwheeler was substantial. Ryan didn’t respond by the time the newspaper a month later withdrew the request.

The newspaper said in an email to Ryan withdrawing the request that it wanted “no implication whatsoever that our coverage on these matters was in any manner some overt or covert step to pressure the court to act in our favor.”