APPEAL FROM WOODFORD CIRCUIT COURT. HONORABLE ROBERT G. JOHNSON, JUDGE. ACTION NO. 09-CI-00341.
ORAL ARGUMENTS AND BRIEFS FOR APPELLANT: Stephen G. Amato, W. Chapman Hopkins, Lexington, Kentucky.
ORAL ARGUMENT AND BRIEF FOR APPELLEE: Jeremy S. Rogers, Louisville, Kentucky.
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND STUMBO, JUDGES.
ACREE, CHIEF JUDGE:
Cindy Fiorella appeals a May 21, 2012 order of the Woodford Circuit Court which determined that portions of Fiorella's deposition testimony and accompanying exhibits should not be concealed from public inspection. Following careful consideration, we affirm.
FACTS AND PROCEDURE
In August of 2009, Paula Gastenveld, former President of the Owensboro Community and Technical College (OCTC), filed suit against the Kentucky Community and Technical College System (KCTCS), Fiorella, and a number of other individuals. Gastenveld's complaint set forth claims of defamation, intentional interference with contract, retaliation against a whistleblower, outrageous conduct, and civil conspiracy.
Fiorella, OCTC's Vice President for Workforce and Economic Development, allegedly made defamatory statements about Gastenveld after Gastenveld gave Fiorella a negative performance evaluation and reported to the KCTCS chancellor and an OCTC official that she suspected Fiorella had improperly expended certain college funds. Gastenveld claimed Fiorella's defamatory statements formed the basis of her reassignment, and this she characterized both as retaliatory and as constituting interference with her employment contract.
The parties conducted discovery which included a February 2011 deposition of Fiorella. Fiorella feared that some of the discovery she supplied in her deposition would " be taken out of context by the viewing public, would portray an inaccurate image of Fiorella to the public, and would leave Fiorella with no ability to refute the information." (Appellant's brief, p. 8). According to Fiorella, portions of this discovery " were sealed by agreement of the parties[, Fiorella and Gastenveld]." To effectuate this agreement, the attorneys for the parties encased the subject materials in envelopes, taped the envelopes shut, and stamped " CONFIDENTIAL" in numerous, conspicuous locations on the envelope, before filing the deposition. The trial court did not enter an order approving the " sealing" of this discovery.
Despite the lack of court sanction, the " sealing" was honored. In May of 2011, deprived of access to the sealed discovery, the Owensboro Messenger-Inquirer filed a motion to intervene for the limited purpose of acquiring that access. The Messenger-Inquirer based its motion on the public's right of access as derived from the First Amendment to the United States Constitution and the common law. Following an evidentiary hearing, the circuit court determined the Messenger-Inquirer had a common law right to access the documents, and the motion was granted over Fiorella's objection.
Before the Messenger-Inquirer actually accessed the records, the circuit court dispensed with all of Gastenveld's claims. The May 21, 2012 order from which the instant appeal is taken states that " on October 13, 2011, the Plaintiff [Gastenveld] and Ms. Fiorella entered into an agreed order dismissing the claims against her." However, the record does not include any agreed order dismissing. The record reflects
that, on October 13, 2011, the circuit court entered two orders granting summary judgment in favor of two separately represented, groups of defendants Gastenveld had sued, including Fiorella. Those orders dismissed the claims against the original defendants explicitly on CR 56 grounds, not by an agreed order of dismissal.
Still, the Messenger-Inquirer's intervening complaint against Fiorella remained. The circuit court, therefore, instructed the remaining parties to present arguments addressing whether the newspaper's request for access to the records was now moot because the matter had settled. The circuit court ultimately determined that it was not moot and that the records should be accessible to the public. In part, the court was persuaded by the fact that public funds had been expended in settling the case.
This appeal followed. The appellant asks us to reverse the circuit court's decision that the Messenger-Inquirer has a common law right to access certain discovery materials which ...