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Memphis Publishing Co. v. City of Memphis

Court of Appeals of Tennessee, Jackson

July 26, 2017

MEMPHIS PUBLISHING COMPANY D/B/A THE COMMERCIAL APPEAL, ET AL.
v.
CITY OF MEMPHIS, ET AL.

          Session April 25, 2017.

         Appeal from the Chancery Court for Shelby County No. CH-16-1074-1 Walter L. Evans, Chancellor

         This 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 newspaper.

         Tenn. 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 Chiefs.

          Lucian 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., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         In 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.[1] 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 evaluation."

         In 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").

         On June 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.

         On July 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), [2] a 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 appellate court.

         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.

         IACP 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 Records Act?

         The 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. § 10-7-505(g)"?

         II. Analysis

         The 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[3] 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 Court stated:

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 [332] at 339 [(Tenn. 2007)] (citing Tenn. Code Ann. § 10-7-505(c)).

421 S.W.3d 597, 606-07 (Tenn. Ct. App. 2013).

         As an initial matter, we address a jurisdictional issue raised by the City.[4] 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, [5] as that was the method for candidates to express their interest in the position.

         A. Whether IACP Operated as the Functional Equivalent of the City of Memphis

         The 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.

         In 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 ...


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