We often have cases where medical records, mental health records, and other similarly protected records need to be provided to a TC for fowarding to the MJ for an in-camera review.
If the TC already has the records and has reviewed them, the proper approach is that the defense gets a copy of everything the TC has seen -that’s an Article 46 issue.
But, if done correctly, the records are received by the TC sealed. But therein lies the problem. How the records are sealed (or not sealed) can be problematic.
When getting protected records from an institution or holder the court order or TC letter or subpeona should explain how to properly seal and mail records. Do the following.
1. Make sufficiently legible copies so that they may be further legibly copied.
2. Place the records in a plain envelope.
3. Clearly mark the outside of the envelope with “HIPPA (or similar) PROTECTED RECORDS ICO US V. X.”
4. Put that envelope in a mailing envelope or carton and mail.
This double sealing is the required method for mailing classified material and can be an effective and suitable way to ensure protected records are protected, even from inadvertent review.