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Panel Leader Seeks Cho Records

May 23, 2007

By Rex Bowman

The head of a review panel appointed by the governor to look at last month's massacre at Virginia Tech said yesterday that he is prepared to go to court to obtain the medical and mental-health records of gunman Seung-Hui Cho.

"We're going to get what we need, one way or the other," said W. Gerald Massengill, chairman of the panel and former state police superintendent, one day after Tech officials said federal privacy laws bar them from sharing the records.

However, Massengill said he doesn't think legal action will be necessary: After conferring with the state attorney general's office yesterday, he said he believes the panel can cite state law mandating state oversight of mental facilities to successfully argue that it has a right to view any counsel-ing records Tech may have on Cho.

"If someone then says, 'We still don't think we can release them,' then we've got a problem," Massengill said. "We'll have to go to the courts."

Tech President Charles W. Steger told the panel Monday that federal privacy laws prohibit the school from disclosing whether Cho ever sought mental treatment at the university's Cook Counseling Center. Even if Cho did seek help there, Steger said, the privacy laws also bar the school from turning over the files.

The panel's inability to obtain the records during its second public meeting provided a jarring reminder of the limits of its powers. Created by Gov. Timothy M. Kaine and not by state law, the panel does not have the ability to issue subpoenas to compel testimony and obtain documents. Federal laws regarding the privacy of Cho's medical records — even after his suicide — are nearly ironclad absent a subpoena, panel members were told.

Yesterday, Kaine spokeswoman Delacey Skinner said there is nothing the governor could have done to give the panel more muscle. Kaine began appointing members to the panel in the days after Cho gunned down 27 fellow students and five faculty members on April 16.

"Any way that we could have constituted the panel — there's not any way we could have done it that would have given it any more subpoena powers," Skinner said. "But the governor has reiterated, if they run into roadblocks, we stand ready and are working with the attorney general's office to get them what they need."

The panel plans to hold only two more meetings, giving it little time to obtain the records. The next meeting is June 11.

The mental-health records are germane to the panel's work because it is trying to determine if the state's mental-health system could have better helped a mentally imbalanced Cho and possibly avoided the rampage. A special justice determined Cho was a danger to himself and ordered him to undergo outpatient treatment in December 2005, but the panel has no records to indicate Cho ever kept an appointment at any counseling center, at Tech or elsewhere. If he didn't seek the treatment he was ordered to get, panel members want to know why no one in the system noticed.

Panel members, frustrated by their inability to look at Cho's medical files, suggested that one of the recommendations they could make is to revise federal privacy laws. Though their recommendations will go to Kaine, federal changes would require congressional action.

At Monday's hearing at Tech, Steger said he was bothered that not even university administrators and campus police have access to students' medical and mental-health files. "I'm concerned about our inability to know these things," Steger said.

A change in federal privacy laws, though, would do the panel no good. It hopes to complete its work in August.

For now, its most pressing need is to find a way to get Cho's records. It's possible the panel can obtain information from Cho's records via a closed-door briefing from James W. Stewart III, the state's inspector general for mental health. Stewart has the authority to confidentially review patient records, and he also has the authority to share information from the records as long as the information remains confidential. Stewart declined to say if he has been asked to review the Cho case, saying it would violate privacy laws for him to acknowledge such a request.

"It remains to be seen whether some of that information is available even privately," said panel member Tom Ridge, former secretary of U.S. Homeland Security. "We have to determine whether we can get access to that information that's been denied the school and denied the panel."

Massengill said a last-resort option would be to ask the Virginia State Crime Commission, which does have statutory subpoena powers, to demand the records. Massengill is a member of that commission.

"I really don't anticipate us using that," he said. "I anticipate that, once we get into the statute that gives the state oversight of mental facilities, we'll be able to get what we need."

State Police Col. W. Steven Flaherty, noting that Cho's federal privacy rights regarding his medical records have passed to his executors, said investigators could obtain the records through Cho's family in Centreville. "We've opened up a dialogue, and they've been very cooperative in everything."

According to court records, state police obtained at least some of Cho's medical and counseling files from Tech's Schiffert Health Center two days after the shooting rampage. Flaherty said investigators are going through dozens of interviews and reams of evidence, and his conversations with them have focused on the morning hours of April 16, so he has not yet been told what those records contain, nor has the panel seen them.

Contact staff writer Rex Bowman at rbowman@timesdispatch.com or (540) 344-3612.