At the University’s Board of Regents meeting in Flint on Friday, the board announced the completion of an external review of the University of Michigan Health System’s six-month delay in reporting the possession of child pornography by former medical resident Stephen Jenson.
However, the board will not release the full report to the public. Instead, the University released a summary of the board’s findings from reading the report. University spokesman Rick Fitzgerald said in an interview that the University will not release the complete report, which was prepared by Latham & Watkins, L.L.P., citing attorney-client privilege.
“The law firm did send a report to the Board of Regents, but that work is done under attorney-client privilege, at the suggestion of the law firm,” Fitzgerald said. “It was their recommendation that would give them the broadest latitude to get to the bottom of things, and we think we accomplished that. What we did do is take all of those recommendations very seriously and they’re reflected in the action that was taken today.”
Frank LoMonte —executive director of the Student Press Law Center, a Virginia non-profit organization that works to protect the rights of student journalists — said not all services performed by a lawyer are a matter of attorney-client privilege.
“It’s really going to depend on the purpose for which the report was prepared,” LoMonte said.
LoMonte explained that if an entity believes it may be sued as a result of the work of a law firm, they may retain privilege.
“If there’s reason to believe the college is going to be involved in a court case or criminal investigation, then the report might be privileged,” LoMonte said. “If you think you might be on the receiving end of legal action, that's probably privileged.”
LoMonte said if a lawyer is hired to investigate an incident and gather facts, that doesn't necessarily guarantee a privileged communication. He added that if the report is something that could have been accomplished by a University administrator, such work is likely not under privilege.
The Office of University Audits released an internal review of the incident in February.
LoMonte pointed out that it’s also possible for privilege to be fully or partially waived by a client. He said the University could release portions of the document or waive the rights by discussing its contents at a public meeting.
The summary the board released details the board's findings after examining the two external audits conducted by Latham & Watkins and Margolis Healy & Associates, a security consulting agency which conducted a cultural assessment of the University’s public safety operations.
The board reported that there was a “categorically unacceptable” failure to communicate the reports of child pornography to the proper authorities.
“There was a clear failure … to timely and effectively communicate regarding the reported possession of child pornography by a medical resident,” the memo said.
The memo also said some University employees had undertaken their own flawed investigation instead of reporting the incident to police.
“Certain University personnel (especially in the Health System and in the Office of General Counsel) inappropriately investigated the reported child pornography information independently, without involving or referring the incident to an appropriate law enforcement agency,” the memo said. “The individuals who made that determination are no longer employees of the University.”
The lead UMHS attorney cited in the University’s audit allegedly covered up the incident and left the University in June 2011, one month after the incident allegedly occurred.
The regents concluded that the relationships and communication between University Hospital Security and the Department of Public Safety are “broken and demand repair.” The board made several recommendations to fix the aforementioned problems including the formation of the new Division of Public Safety and Security.
In the memo, the regents vowed to continue implementing the recommendations of the Safety and Security Steering Committee, which was established as a result of the internal response to the Jenson incident.
“The situation that gave rise to these changes is terrible and unacceptable,” the memo stated. “We can never again have a delay in timely reporting to law enforcement of this kind of serious misconduct.”