MEMPHIS PUBLISHING COMPANY D/B/A THE COMMERCIAL APPEAL, ET AL.
CITY OF MEMPHIS, ET AL.
Session April 25, 2017.
from the Chancery Court for Shelby County No. CH-16-1074-1
Walter L. Evans, Chancellor
appeal arises out of an action brought by a newspaper seeking
access to application materials in the possession of a
nonprofit professional association that was assisting the
City of Memphis in recruiting candidates for its Director of
Police. The trial court concluded that the records held by
the association were subject to disclosure under the
Tennessee Public Records Act because the association acted as
the functional equivalent of the City and because the
position of police director was the same as a chief public
administrative officer, a position for which the Act mandates
that all employment application materials be made available.
The association and the City appeal. We reverse the
determination that the records are subject to disclosure; we
affirm the denial of an award of attorney's fees to the
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed in Part and Affirmed in Part
Jonathan P. Lakey, William B. Walk, Jr., and John J. Cook,
Memphis, Tennessee, for the appellant, City of Memphis.
Zackery B. Busey and Lori H. Patterson, Memphis, Tennessee,
for the appellant, International Association of Police
T. Pera and J. Bennett Fox, Jr. and, Memphis, Tennessee, for
the appellee, Louis Graham and Memphis Publishing Company
d/b/a The Commercial Appeal.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Arnold B. Goldin and Kenny W. Armstrong, JJ.,
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
March 2016, the City of Memphis entered into an agreement
("the Agreement") with the International
Association of Chiefs of Police, Inc. ("IACP") to
have IACP assist with its search for the next Director of the
Memphis Police Department. According to the Agreement with the
City, IACP was to solicit and receive application materials
from candidates nationwide, perform an initial review of
those resumes and cover letters, and "identify the best
candidates (approximately 10-20 semifinalists) for initial
screening, " which would include "internet checks
and structured telephone interviews." IACP would then
"recommend a group (approximately six) of the most
highly qualified candidates for further on-site
June, a reporter employed by The Commercial Appeal
newspaper requested that the City produce copies of all
applications for the Director of Police position. A city
official responded that "IACP was handling the
application process for the City, so we do not have them in
our possession and will not be giving them out for media to
review." The reporter made a similar request to IACP,
noting that he was "primarily interested in the
finalists, if any have been selected yet, but would like to
receive all applications if not." IACP did not respond
to the request. On June 23, counsel for the newspaper wrote
to the City Attorney and IACP's Deputy Executive Director
requesting access to the applications by the following
evening, or suit would be brought pursuant to the Tennessee
Public Records Act (or "TPRA").
28, 2016, Memphis Publishing Company, doing business as
The Commercial Appeal, and Louis Graham, editor of
The Commercial Appeal (collectively,
"Petitioners") filed a "Petition for Access to
Public Records and to Obtain Judicial Review of Denial of
Access" in Shelby County Chancery Court, pursuant to
Tennessee Code Annotated section 10-7-505(b). The petition
named the City and IACP as Respondents. After expedited
discovery, each Respondent filed a response, with supporting
affidavits, in opposition to the petition. On July 15, IACP
provided the City with a list of six candidates it
recommended for consideration; the City released the names to
the public the same day. On July 20, the court held a hearing
on the petition; on the same day, but prior to the hearing,
the City released the recommended candidates'
biographies, resumes, photographs, cover letters, and, where
applicable, news clippings related to the candidates.
29, the court ruled that all materials were public records
within the meaning of the TPRA and, consequently, ordered
Respondents to immediately make available to Petitioners
copies of the materials from all applicants still held by
IACP. Holding that the Respondents did not act willfully in
withholding the documents, the court denied Petitioners'
request for attorney fees. IACP and the City appealed. In
accordance with Tennessee Code Annotated section 10-7-505(e),
separate order was entered certifying that substantial legal
issues existed with respect to the disclosure of the
documents at issue which ought to be resolved by the
City raises the following issues for our review:
1. Whether the trial court erred in holding that IACP was the
functional equivalent of the City of Memphis and that
IACP's confidential information records relating to the
position of Director of Police, information and records that
never have been in the possession of the City, were subject
to the Tennessee Public Records Act (Tenn. Code Ann.
§§10-7-503 et seq.) (herein the "Act").
2. Whether the trial court erred in holding that the term
"chief public administrative officer" contained in
Tenn. Code Ann. §10-7-503(f) includes the position of
Director of Police for the City of Memphis.
3. Whether the trial court erred in holding that
Petitioners' request for "any applications submitted
for the position of Chief of Police of the City of
Memphis" included more than just applications for the
position of Director of Police.
phrases its issues on appeal as follows:
1. Whether, under the specific circumstances of this case,
the Tennessee Supreme Court's [Memphis Publ'g Co.
v.] Cherokee [Children & Family Servs,
Inc., 87 S.W.3d 67 (Tenn. 2002)] decision was intended
to and should apply to IACP?
2. If the Tennessee Supreme Court's Cherokee
decision applies to IACP, whether, under Cherokee,
IACP is the functional equivalent of a government agency such
that IACP's records are subject to inspection under the
Tennessee Public Records Act?
3. If, under Cherokee, IACP's records are
subject to inspection under the Tennessee Public Records Act,
whether IACP's records are exempt from inspection under
Section 503(d)(3) of the Act?
4. Whether IACP's records are independently subject to
inspection under Section 503(f) of the Tennessee Public
Petitioners raise as an issue "[w]hether the Shelby
County Chancery Court erred in denying Petitioners'
request for attorney fees pursuant to Tenn. Code Ann. §
Tennessee Public Records Act, set forth in Tennessee Code
Annotated section 10-7-101 et. seq., "grants
access to records of government agencies throughout the
state." Gautreaux v. Internal Med. Educ. Found.,
Inc., 336 S.W.3d 526, 529 (Tenn. 2011) (citing Cole
v. Campbell, 968 S.W.2d 274, 275 (Tenn. 1998)). The
purpose of the Act "is to promote public oversight of
governmental activities." Id. (citing
Memphis Publ'g Co. v. Cherokee Children & Family
Servs., Inc. 87 S.W.3d 67, 74 (Tenn. 2002)). The
Tennessee Supreme Court has interpreted the legislative
mandate of the TPRA "to be very broad and to require
disclosure of government records even when there are
significant countervailing considerations."
Gautreaux, 336 S.W.3d at 529 (citing Memphis
Pub'g Co. v. City of Memphis, 871 S.W.2d 681, 684
(Tenn. 1994)). In Patterson v. Convention Ctr. Auth. of
Metro. Gov't of Nashville & Davidson Cty., this
Notwithstanding the presumption of openness, in the interest
of public policy the General Assembly has provided specific
explicit exemptions from disclosure contained in the TPRA
itself. It has also "acknowledged and validated both
explicit and implicit exceptions from disclosure found
elsewhere in state law." Swift v. Campbell, 159
S.W.3d 565, 571 (Tenn. Ct. App. 2004). In an action filed for
review of the denial of access to a record by a governmental
entity, the governmental entity carries the burden of proof
to justify nondisclosure by a preponderance of the evidence.
Schneider [v. City of Jackson], 226 S.W.3d
 at 339 [(Tenn. 2007)] (citing Tenn. Code Ann. §
421 S.W.3d 597, 606-07 (Tenn. Ct. App. 2013).
initial matter, we address a jurisdictional issue raised by
the City. In its brief, the City argues that the
court did not have jurisdiction to rule on whether the
resumes and cover letters submitted to IACP were public
records because the Petitioners only requested
"applications." This is a distinction without a
difference. Exhibit A to the Agreement provides that
"IACP will acknowledge receipt of application materials
from candidates and conduct an initial review of all resumes
and cover letters." In paragraph 19 of his affidavit,
Kim Kohlhepp, manager of the IACP's executive search
service, states that "[t]he only material IACP has
received from each of these candidates is an email message, a
cover letter and a resume"; in paragraph 24, he refers
to these materials as "applications." In light of
the reference in the Agreement to resumes and cover letters
as "application materials" and similar language in
Mr. Kohlhepp's affidavit, we find no merit to the
City's argument and no error in the holding that the
request for "applications" included the resumes and
cover letters submitted by interested parties,  as that was the
method for candidates to express their interest in the
Whether IACP Operated as the Functional Equivalent of the
City of Memphis
trial court held that the IACP served as the "functional
equivalent" of the City of Memphis, such that all
applications in its possession were public records and should
be subject to the record request. IACP and the City contend
that this holding was error.
Memphis Publ'g Co. v. Cherokee Children & Family
Servs., Inc., ("Cherokee"), the
Tennessee Supreme Court was called upon to determine
"whether a non-profit corporation that provides
privatized services to a governmental entity is subject to
the public access requirements of the Tennessee Public
Records Act." 87 S.W.3d 67, 70 (Tenn. 2002). The entity
at issue in that case was an agency that provided
"transitional child care services for children of
low-income families referred by the Department of Human
Services . . . includ[ing] the listing and classification of
child care providers, referrals of qualified families to
appropriate child care centers, and the monitoring and
supervision of each placement under guidelines ...