Hahn v. University of Louisville

80 S.W.3d 771, 2001 Ky. App. LEXIS 84, 2001 WL 815138
CourtCourt of Appeals of Kentucky
DecidedJuly 20, 2001
DocketNo. 2000-CA-001296-MR
StatusPublished
Cited by4 cases

This text of 80 S.W.3d 771 (Hahn v. University of Louisville) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hahn v. University of Louisville, 80 S.W.3d 771, 2001 Ky. App. LEXIS 84, 2001 WL 815138 (Ky. Ct. App. 2001).

Opinion

OPINION

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 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 [773]*77361.882(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 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, Ko-shewa, Associate University Counsel, “emailed” 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 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 heating. Following the healing 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 attorney-client 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 stated language.’ ” Hoy v. Kentucky Industrial Revitalization Autk, Ky.,

Related

Univ. of Ky. v. Lexington H-L Servs., Inc.
579 S.W.3d 858 (Court of Appeals of Kentucky, 2018)
Eplion v. Burchett
354 S.W.3d 598 (Court of Appeals of Kentucky, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
80 S.W.3d 771, 2001 Ky. App. LEXIS 84, 2001 WL 815138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hahn-v-university-of-louisville-kyctapp-2001.