SINHA (SHYAMASHREE M.D.) VS. UNIVERSITY OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SHYAMASHREE SINHA, M.D.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 07-CI-01561
UNIVERSITY OF KENTUCKY
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BEFORE: LAMBERT AND TAYLOR, JUDGES; GRAVES,1 SENIOR JUDGE.
LAMBERT, JUDGE: Shyamashree Sinha, M.D., appeals an order denying her
attorneys fees, costs, and a per diem sum. After careful review, we affirm.
Shyamashree Sinha, M.D., (hereinafter Sinha), obtained her medical
doctorate from the Calcutta National Medical College in Calcutta, India, in
Senior Judge J. William Graves sitting as Special Judge by Assignment of the Chief Justice
pursuant to Section 110 (5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
September 1996. On September 2, 2002, she began her residency training in the
Department of Internal Medicine, College of Medicine, at the University of
Kentucky. She continued residency training until March 31, 2006. Six weeks
prior to graduation, Sinha was informed by Steven A. Haist, M.D., (hereinafter
Haist), her Residency Director, that the Resident Evaluation Committee (REC) had
determined to place her on a six-month probation. Sinha later determined that the
REC had voted on February 9, 2006, for Haist to grade Sinha as unsatisfactory in
his final evaluation and in any subsequent evaluations. According to Sinha, that
determination was in actuality a termination. Sinha claims that the secret
termination was never communicated to her, and thus that she was denied the
opportunity to request and receive, under the University’s administrative
procedures, an evidentiary hearing on her termination before an impartial hearing
Graduation from a residency program is not statutorily required in
Kentucky, and Dr. Sinha had previously entered into an employment agreement
with a rural health care clinic in Kentucky. Accordingly, Dr. Sinha elected to
obtain her permanent medical license through the Kentucky Board of Medical
Licensure (KBML) and begin practicing medicine pursuant to that employment
agreement. Sinha thereby resigned her residency on April 1, 2006.
Unbeknownst to Sinha, Haist wrote a letter on May 3, 2006, to the
KBML recommending that Sinha not be granted a license to practice medicine in
Kentucky. On the basis of the letter, the KBML refused to grant Sinha a license to
practice medicine, and Sinha could not fulfill her agreement to practice internal
medicine at the rural health clinic in Berea. Without employment and having no
legal status in the United States, Sinha’s immigration status mandated that she
return to India.
On January 3, 2007, Sinha requested in writing that the University of
Kentucky make all her graduate medical education records and documents
available to her for inspection and copying. Sinha believed she was making this
request pursuant to the Open Records Act; however, her request did not state such.
The request stated:
I hereby request that you forward to me at the
hereinabove address the full and complete records of any
graduate medical education in the Internal Medicine
Department at the University of Kentucky, including, but
not limited to, copies of any and all evaluations, letters,
correspondence, memoranda, and any and all other
communications directed to parties within the University
of Kentucky or outside of the University and to any and
all third parties, including, but not limited to, the
Kentucky Board of Medical Licensure, regarding my
training, progress, proficiency, evaluations, probation,
character or any other aspect of my tenure in the Internal
Medicine Department of the University of Kentucky.
The request was sent to Deborah Aminoff, (hereinafter Aminoff), Director of
Graduate Medical Education and was received on January 22, 2007.
According to Sinha, the University was required under Kentucky
Revised Statutes (KRS) 61.872(4) to notify her if Aminoff was not the proper
custodian of the records, and they were otherwise required to communicate with
her within three days of receipt of the requests as set forth in KRS 61.872(4)(5).
Sinha waited for more than two months for the records and did not make any
contact with the University to inquire about the records. On April 2, 2007, she
filed the underlying civil action pursuant to the Kentucky Open Records Act.
On April 4, 2007, the University of Kentucky mailed Sinha some, but
not all, of her requested records. Sinha did not receive a copy of the May 3, 2006,
letter Haist had written to the KBML nor did she receive the minutes of the
meeting of the REC from February 9, 2006. The University of Kentucky then filed
an answer and a motion to dismiss Sinha’s complaint arguing, among other things,
that Sinha had not designated that her request was pursuant to the Open Records
Act, that she had not contacted Aminoff to inquire about the records, and that the
case was moot because all of Sinha’s records were mailed to her on April 4, 2007.
The parties appeared before the Fayette Circuit Court on the Motion
to Dismiss on May 18, 2007. The case was called, and the parties then agreed with
the court that the University would provide the missing records. Both parties then
agreed to pass the motion. On May 30, 2007, Sinha was permitted to inspect her
records and found the May 3, 2006, letter from Haist to the KBML and the minutes
of the REC meeting on February 9, 2006.
Sinha then sought reimbursement of her attorneys fees, costs, and a
per diem sum pursuant to KRS 61.882(5), arguing that the University’s conduct
was wrongful and willful. Sinha sought $12,549.34 in costs and attorneys fees and
a per diem sum of $3,225.00 based upon 129 days at $25.00 per day.
At the hearing on the motion, the University argued that their conduct
was neither wrongful or willful, emphasizing that Sinha never contacted the
University to inquire about her request and that had she done so, the records would
have been sent sooner. The University also argued that the records were
voluminous and had to be extensively reviewed and redacted to ensure no
protected patient information was included in the copies, consistent with the Health
Insurance Portability and Accountability Act (HIPAA).
Furthermore, the University provided affidavits of the records
custodians, which indicated that Aminoff assumed Sinha’s request was simply a
routine request for student records rather than a request made pursuant to the Open
Records Act. The University explained that Aminoff gathered Sinha’s Graduate
Medical Education (GME) file and sought assistance from Lindsey Sutton,
Program Coordinator for the University’s Internal Medicine Residency Program,
who had access to both internal medicine (IM) residency files and meeting minutes
of the REC. According to Sutton, the meeting minutes from the REC are the
written record of the Committee actions regarding any number of issues and,
consistent with their nature, are not maintained in individual IM residency files and
are instead maintained in a separate file in Sutton’s office. Sutton testified by
affidavit that she neither read nor understood Sinha’s request to seek or encompass
The University also argued that when it sent Sinha’s records on April
4, 2007, it was not aware of either the lawsuit filed on April 2, 2007, or of the
existence of Haist’s May 3, 2006, letter to the KBML. When it became aware of
the May 3, 2006, letter to the KBML, it made it available to Sinha.
Sinha argued that the University’s conduct was willful and that its
motion to dismiss was frivolous, given that it knew it had withheld the records.
Essentially, Sinha argued that because the court found the University’s conduct to
be wrongful, it must also be found willful. Sinha argued that the University
deliberately withheld the records until after her allotted time to file an
administrative appeal and that it was not her responsibility to contact the
University regarding the Open Records request.
The trial court denied Sinha’s KRS 61.882(5) motion, holding that,
“[t]he Court hereby finds that while [the University’s] handling of [Dr. Sinha’s]
January 3, 2007[,] request for records was wrongful, there is not a sufficient basis
for the Court to find the University’s conduct was willful under KRS 61.882(5).”
On February 15, 2008, Sinha filed her notice of appeal to this Court.
KRS 61.882(5) provides:
[a]ny person who prevails against any agency in any
action in the courts regarding a violation of KRS 61.870
to 61.884 may, upon a finding that the records were
willfully withheld in violation of KRS 61.870 to 61.884,
be awarded costs, including reasonable attorney's fees,
incurred in connection with the legal action. If such
person prevails in part, the court may in its discretion
award him costs or an appropriate portion thereof. In
addition, it shall be within the discretion of the court to
award the person an amount not to exceed twenty-five
dollars ($25) for each day that he was denied the right to
inspect or copy said public record. Attorney's fees, costs,
and awards under this subsection shall be paid by the
agency that the court determines is responsible for the
Whether or not the University willfully withheld the records in the instant case was
a factual finding for the trial court to make. That finding cannot be disturbed on
appeal unless it was clearly erroneous. See Bowling v. LFUCG, 172 S.W.3d 333,
345 (Ky. 2005). The question for this court, then, is whether the trial court’s
finding was supported by substantial evidence.
We hold that the trial court’s decision was not clearly erroneous and
was supported by substantial evidence. In order to show that the University’s
actions were willful, Sinha was required to show that the University acted in bad
faith with an intent to violate the Open Records Act and without plausible
explanation for the alleged errors. See KRS 61.882(5); Bowling, 172 S.W.3d at
343-345. The trial court below found that while the University improperly
withheld the records, it did not do so with intent to violate the Act, and it had
plausible explanation for its errors.
The evidence in this case consisted largely of testimony through
conflicting affidavits. The trial court was in the position to judge the credibility of
the various testimony and affidavits. We are not in a position to substitute our
judgment for that of the trial court. Given the explanations found in the affidavits
on record, we find that the trial court had substantial evidence to find that the
University did not act willfully.
The records custodians testified that the REC minutes and Haist’s
letter were not items routinely kept in the IM files of each student, and the REC
minutes were kept separately by the REC records custodian. Further, the
custodians were not aware that Haist had written the letter until Sinha brought it to
their attention, and she was then permitted to examine the letter and the minutes.
This evidence was sufficient for the court to find that the University’s conduct was
not willful and that they did not intentionally withhold records from Sinha. As
such, the trial court’s decision to deny the award of attorneys fees and costs was
not clearly erroneous.
Given that the court must first determine that the University’s actions
were willful before it can award attorneys fees, costs, and any per diem sums, it is
unnecessary for us to address the remainder of the parties’ arguments concerning
the standards to be utilized in establishing those costs and fees.
For the foregoing reasons, the decision of the Fayette Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kent Masterson Brown
Stephen L. Barker
Joshua M. Salsburey