In nearly every county, these special drug and mental health courts have become a popular way to handle non-violent criminal defendants addicted to drugs or with mental illnesses. They have reduced recidivism rates among those who complete the programs and saved millions in prison costs.

Although state law does not say the hearings in drug and mental health courts should be closed, judges in many counties -- including Tulsa -- have closed them.

Judges cite as one reason a federal law that keeps medical records private, even though federal officials say the law does not apply to courts.

Out of eight mental health courts operating statewide, four close all hearings: Seminole, Cleveland, McCurtain and Washington counties. Hearings in Cherokee and Oklahoma counties are open, while the judge over Tulsa's mental health court allows defendants to request a closed hearing if they want one.

During several of the Tulsa court hearings in July and August, a public defender asked that some of the hearings be closed. Members of the public, including a Tulsa World reporter, were ordered to leave the courtroom.

A statewide organization devoted to open government, FOI Oklahoma Inc., is concerned about the trend.

''It's a dangerous precedent to close public courtrooms,'' said Joey Senat, president of FOI Oklahoma Inc. ''Courts operate much better when they operate in the open.''

The Supreme Court has held that criminal proceedings are presumed to be open to the public.

Judges are generally required to conduct balancing tests when they close hearings and records, finding that the reasons to close them outweigh the constitutional right to access.

The Anna McBride Act, passed five years ago to create mental health courts, gives judges the authority to exclude defendants charged with violent crimes or a prior violent felony. The brief law does not state hearings and records should be closed.

The law setting up drug courts also does not require closed hearings but requires judges to separate public records from non-public records in the cases.

At least 55 counties in Oklahoma operate drug courts. Out of seven counties contacted by the World, three closed all drug court hearings and one opened all hearings. In Oklahoma County, clerks said some judges closed hearings and some did not.

In Tulsa County, Special District Judge Sarah Day Smith said drug court review hearings are open, but hearings would be closed if the state is seeking to end a defendant's participation in the program.

While the court clerk keeps a public file containing the original charge, the mental health and drug court files are closed to the public, said Court Clerk Sally Howe Smith. Smith cited a federal medical privacy law -- commonly referred to by the acronym HIPAA -- in closing those files.

Tulsa Special Judge Kirsten Pace, who is hearing cases on the new mental health court docket, said: ''We are relying on federal and state law to protect privileges and HIPAA as well and we are following a similar procedure in drug court.''

Tulsa District Judge Rebecca Nightengale, who helped set up the mental health court, said court officials never discussed whether to hold open or closed hearings.

''Of all the issues we had to resolve, that wasn't one of them.

''We have to be sensitive and we have to follow the HIPAA regulations as well,'' she said. ''We're talking about disclosing sensitive health information.''

Other judges also mentioned HIPAA in deciding to close their mental health and drug court hearings.

''Sometimes I am concerned about information that would be discussed that would be potentially embarrassing to our participants,'' said Seminole County Special Judge Gayla Arnold, who hears drug court cases in that county.

HIPAA -- the 1996 Health Insurance Portability and Accountability Act -- requires hospitals, doctor's offices, pharmacies, insurance companies and other entities that bill for medical service to keep medical records private.

Bill Hall, a spokesman for the U.S. Department of Health and Human Services, the agency which enforces the law, said: ''A court is not a covered entity. . . . That's a decision by the judge. It's not a HIPAA requirement.''

One judge, Craig County Associate District Judge Gary Maxey, initially said the county's mental health court hearings would be closed to the public. Maxey later said the county, which is still drawing up procedures for the new court, would review that stance.

''In some respects we are kind of flying by the seat of our pants in setting these things up,'' he said. ''I would look at it from the standpoint of trying to open some of it up.

''As judges, we like everything to be in black and white, but that will be one of the things we will be considering is do we close it or do we even have a right to close it.''

Ziva Branstetter 581-8378
ziva.branstetter@tulsaworld.com