THERESA HAHN v. UNIVERSITY OF LOUISVILLE
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RENDERED:
JULY 20, 2001; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001296-MR
THERESA HAHN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 97-CI-005559
v.
UNIVERSITY OF LOUISVILLE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI, and MILLER, Judges.
COMBS, JUDGE:
Theresa A. Hahn appeals from a decision of the
Jefferson Circuit Court which held that certain information which
she had sought from the University of Louisville was exempt from
disclosure pursuant to Kentucky's Open Records Act.
After
reviewing the appellant's arguments, the record, and the
applicable law, we affirm.
On April 8, 1997, Hahn, a research technologist at the
University of Louisville's School of Medicine, Department of
Psychiatry, made an open records request to the University
relating primarily to her own personnel records.
At the time
that she made her request, Hahn also had claims pending in
litigation against the University.
Those claims arose from
alleged mistreatment that Hahn had suffered from the University's
Department of Psychology.
The University anticipated additional
litigation arising out of those claims.
Dr. William Morison, Director of the University's
Archives, responded to the request on behalf of the University.
While numerous documents were disclosed, approximately 12
documents were withheld by the University.
Dr. Morison advised
Hahn that "four [of the documents withheld] are between
university employees and a university attorney and are
confidential communications exempt under attorney/client
privilege."
Hahn requested review by the Attorney General pursuant
to Kentucky Revised Statute (KRS) 61.870, et seq.
The Attorney
General ordered that all 12 disputed documents be produced for
Hahn's inspection.
The decision was based in part upon the
provisions of KRS 61.878(3), providing that enumerated exemptions
to the disclosure requirements do not apply when an employee of a
state agency, including university employees, seeks disclosure of
certain documentation.
With respect to the University's argument
that four of the documents remained protected from disclosure by
the attorney-client privilege, the Attorney General noted that
the University had failed to cite the relevant exception as
required by KRS 61.880(1) and had failed to meet its statutory
burden of proof relative to invocation of the privilege.
The
opinion specifically acknowledged, however, that public records
protected by the attorney-client privilege were ordinarily
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excludable from the disclosure requirements of the Open Records
Act.
The University complied with the Attorney General's
opinion except as it pertained to the four documents, which it
believed were protected from disclosure by the attorney-client
privilege.
That portion of the Attorney General's opinion was
timely appealed to Jefferson Circuit Court pursuant to KRS
61.880.
The four contested documents were identified in the
University's complaint as follows:
(a) 2/13/97 fax from Angela Koshewa,
Associate University Counsel, to Carol
Thomas, department manager and Dr. Allen
(sic) Tasman, head of Department, re Theresa
Hahn.
(b) 2/14/97 fax from Angela Koshewa to Carol
Thomas re Theresa Hahn.
(c) 2/14/97 fax from Angela Koshewa to Carol
Thomas re Theresa Hahn.
(d) 4/11/97 fax from Angela Koshewa to Carol
Thomas re Theresa Hahn.
Subsequently, the University clarified that the four documents
were not faxes but rather electronic mail memoranda.
On October 29, 1998, the University requested the
circuit court to review the four documents in camera pursuant to
KRS 61.882(3).
On February 9, 1999, the circuit court ordered
the four documents to be filed and sealed pending its in camera
review.
On February 22, 1999, the University filed an objection
to Hahn's request for an evidentiary hearing.
Later, the
University filed three affidavits in support of its contention
that the communications were protected by the attorney-client
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privilege.
The affiants were Dr. Tasman, Carol Thomas, and
Angela Koshewa.
In his affidavit, Dr. Tasman stated that he was the
Chairman of the University's Psychiatry Department and had been a
"carbon copy" recipient of one of the four contested documents.
He did not specifically remember receiving the document.
He did
not recall discussing the contents of the document with anyone or
disclosing its contents to anyone other than University counsel
or Carol Thomas.
While Dr. Tasman had no recollection of
printing the document, he testified that if he had printed it, he
would have directed his secretary to place it in a confidential
file.
According to her affidavit, Carol Thomas received the
four documents from counsel in the course of her duties as
Business Manager for the Psychiatry Department of the University.
Thomas did not discuss the contents of the documents with anyone
other than counsel and possibly Dr. Tasman.
According to her sworn statement, Koshewa, Associate
University Counsel, "e-mailed" the four documents to Thomas and
Dr. Tasman.
The documents concerned "possible claims arising out
of pending litigation between Hahn and the University."
Koshewa
stated that the four documents disclosed her legal opinion with
respect to pending litigation.
Koshewa indicated that she has
not discussed the contents of the four documents with anyone
"other than counsel representing [the University], Carol Thomas,
Dr. William Morison (U/L Archivist and the person responsible for
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responding to Open Records requests on behalf of U/L), and
possibly Dr. Allan Tasman . . . ."
On March 17, 2000, the Jefferson Circuit Court
conducted a hearing on the University's petition to reverse the
Attorney General's decision and on Hahn's motion for an
evidentiary hearing.
Following the hearing on the University’s
motion, a review of the parties' extensive memoranda, and its in
camera inspection of the four documents, the circuit court denied
Hahn's request for an evidentiary hearing and entered its
decision.
The court concluded that the documents were indeed
subject to the attorney-client privilege and as such were
protected from the disclosure requirements of the Open Records
Act.
This appeal followed.
Hahn contends that the clear language of KRS 61.878(3)
requires the disclosure of the four documents notwithstanding the
University's claim of attorney-client privilege.
The general
question for us is whether information protected by the attorneyclient privilege is shielded from the disclosure requirements of
the Open Records Act; if so, we must address the more specific
question of whether the information requested by Hahn is indeed
protected by the privilege.
Both present questions of law, and
our standard of review is thus de novo, requiring no deference to
the decision of the trial court.
See Floyd County Bd. of Educ.
v. Ratliff, Ky., 955 S.W.2d 921 (1997).
"In analyzing the Open Records Act . . . we are guided
by the principle that 'under general rules of statutory
construction, we may not interpret a statute at variance with its
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stated language.'"
Hoy v. Kentucky Industrial Revitalization
Auth., Ky., 907 S.W.2d 766, 768 (1995), citing Layne v. Newburg,
Ky., 841 S.W.2d 181, 183 (1992).
"We are not at liberty to add
or subtract from the legislative enactment nor discover meaning
not reasonably ascertainable from the language used."
Beckham v.
Board of Educ. of Jefferson County, Ky., 873 S.W.2d 575, 577
(1994).
By enacting the Open Records Act, the General Assembly
determined that the "free and open examination of public records
is in the public interest" and that the enumerated exceptions to
disclosure "shall be strictly construed, even though such
examination may cause inconvenience or embarrassment to public
officials or others."
KRS 61.871.
The Act undoubtedly militates
in favor of disclosure, and the public agency that is the subject
of an open records request bears the burden of proving that
documents sought fit within an exception to disclosure.
KRS
61.882(3); University of Kentucky v. Courier-Journal, Ky., 830
S.W.2d 373 (1992).
In this case, the Jefferson Circuit Court
correctly held that the University of Louisville had sustained
its burden with respect to the four disputed documents.
Despite the Act's bias in favor of disclosure, KRS
61.878 contains a list of public records which are ordinarily
exempt from review under the Open Records Act.
Listed among
these are "public records or information the disclosure of which
is prohibited or restricted or otherwise made confidential by
enactment of the General Assembly."
61.878 (1)(l).
As Hahn
admits, the protections generally afforded by the attorney-client
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privilege have been recognized and incorporated into the statute
by the Kentucky General Assembly.
Thus, we agree that the
disputed documents are beyond the scope of mandatory disclosure.
Hahn contends, however, that the disputed documents are
not protected from her review because she is a state university
employee.
She points to KRS 61.878(3), which provides broad
exceptions to the enumerated exemptions where a state employee
makes an open records request.
The relevant portion of the
statute provides as follows:
No exemption in this section shall be
construed to deny, abridge, or impede the
right of a public agency employee, including
university employees . . . to inspect and to
copy any record including preliminary and
other supporting documentation that relates
to him. The records shall include, but not
be limited to, work plans, job performance,
demotions, evaluations, promotions,
compensation, classification, reallocation,
transfers, layoffs, disciplinary actions,
examination scores and preliminary and other
supporting documentation. (Emphasis added).1
Hahn contends that the statute is unambiguous and that
it clearly mandates disclosure of any record relating to her —
even if it falls among the records specifically excluded from
disclosure by KRS 61.878.
Based upon our interpretation of KRS
61.878, we disagree.
In addition to providing a list of public records which
are exempt from review under the Open Records Act absent a court
order (and broad exceptions to the exemptions for state
employees), KRS 61.878 specifically directs that "no court shall
1
This provision contains its own exceptions — none of which
is pertinent here.
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authorize the inspection by any party of any materials pertaining
to civil litigation beyond that which is provided by the Rules of
Civil Procedure governing pretrial discovery[.]"
We read this
provision as overriding the provisions of KRS 61.878(3) and as
operating conclusively to prevent disclosure of the four
documents that Hahn now seeks to review.
The Kentucky Rules of Civil Procedure provide that
"Parties may obtain discovery regarding any matter, not
privileged . . . ."
Ky. R. Civ. P. (CR) 26.02.
Consequently, to
the extent that the material Hahn seeks to inspect can be said to
"pertain to civil litigation" and to be beyond discovery under
the Civil Rules, its disclosure — otherwise required — is
expressly exempted regardless of Hahn's status as a state
employee.
The Kentucky Supreme Court has specifically recognized
that an in camera review of a contested communication is one
method of determining whether a privilege has attached.
EPI Corp., Ky., 815 S.W.2d 395 (1991).
Shobe v.
In Shobe, the trial court
conducted its in-chambers inspection and concluded that the
attorney-client privilege did apply to the several disputed
communications.
We have also examined the disputed documents in camera,
and we conclude that the previously identified documents do
indeed "pertain to civil litigation."
As privileged material,
they are beyond the scope of discovery according to our Civil
Rules.
Consequently, they are exempt from disclosure.
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We have also reviewed these communications in terms of
the attorney-client privilege.
Article V of the Kentucky Rules
of Evidence (KRE) describes the nature and application of various
privileges for confidential communications.
The attorney-client
privilege, the oldest of the privileges known at the common law,
is governed by the provisions of KRE 503.
It recognizes that
sound legal advice and advocacy serve vital public purposes and
that such advice and advocacy depend upon a guarantee of
confidentiality between attorney and client.
Upjohn Co. v.
United States, 449 U.S. 383, 389, 66 L.Ed.2d 584, 591, 101 S.Ct.
677, 682 (1981).
KRE 503(b) provides that:
A client2 has a privilege to refuse to
disclose and to prevent any other person from
disclosing a confidential communication made
for the purpose of facilitating the rendition
of professional legal services to the client:
(1) Between the client or a representative
of the client and the client's lawyer or a
representative of the lawyer.
. . . .
(4) Between representatives of the client or
between the client and a representative of
the client[.]
KRE 503(a)(5) states that a communication is deemed
“confidential” if not intended to be
disclosed to third persons other than those
to whom disclosure is made in furtherance of
the rendition of professional legal services
to the client or those reasonably necessary
for the transmission of the communication.
2
KRE 503(a)(1) recognizes that organizations or entities may
be clients and are entitled to assert attorney-client privilege.
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The privilege attaches to confidential communications made for
the purpose of facilitating the process of rendering professional
legal services to a client; counsel must be acting in the course
and scope of employment for the client, and the communication
must pertain to a matter within the course and scope of that
employment.
KRE 503(a)(2);
Underwood and Weissenberger,
Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
The University's proof indicated that the contested
communications were sent by University counsel to the Chairman
and Business Manager of the Psychiatry Department where Hahn was
employed.
Both of these individuals qualify as
"representative[s] of the client."
KRE 503(a)(2)(B).3
Our
review of the documents demonstrated that the communications were
made for the purpose of providing legal services to the
University.
Hahn contends that the University was lax and
unprofessional in taking proper precautions to secure or maintain
the confidentiality of the communications — thus amounting to
either a waiver or a failure to establish confidentiality.
not agree.
We do
Additionally, there is no basis to support a good-
faith belief by a reasonable person that the crime-fraud
exception to the privilege might apply in this case.
503(d)(1).
KRE
Finally, we find nothing to suggest that Hahn was
entitled to an evidentiary hearing in order to probe the factual
3
Significantly, commentators agree that enactment of KRE
503(a)(2) effectively abandoned the "control group" test
vigorously advocated by Hahn. See Underwood and Weissenberger,
Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
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circumstances surrounding the communications at issue in this
case.
We conclude that the disputed communications are
protected by the attorney-client privilege and that the explicit
provisions of KRS 61.878 protect the documents containing these
privileged communications from compulsory disclosure.
Accordingly, the judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert L. Segal
Everett C. Hoffman
Louisville, KY
John T. Ballantine
Gene Lynn Humphreys
Louisville, KY
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Everett C. Hoffman
Louisville, KY
Gene Humphreys
Louisville, KY
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