HERBERT S. MONCIER
NINA HARRIS, ET AL.
December 13, 2016 Session
from the Chancery Court for Knox County No. 190527-2 Clarence
E. Pridemore, Jr., Chancellor
appeal involves a request for access to examine records under
Tennessee Code Annotated section 10-7-505, in which the
plaintiff sought the release of civil forfeiture documents
from the Tennessee Department of Safety and Homeland
Security. The trial court held that the plaintiff did not
show sufficient cause for release of the sought-after
documents in a non-redacted format. Upon our previous review,
we found the issue to be moot owing to the legislative
enactment of 2016 Tenn. Pub. Acts, chapter 722, § 5.
Upon the plaintiff's appeal, the Supreme Court remanded
the case for our reconsideration in light of the legislative
enactment of 2017 Tenn. Pub. Acts, chapter 113, § 1,
which amended the Tennessee Public Records Act. Upon our
review, we affirm the judgment of trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
Herbert S. Moncier, Knoxville, Tennessee, appellant pro se.
Herbert H. Slatery, III, Attorney General & Reporter,
Andree S. Blumstein, Solicitor General, and Janet M.
Kleinfelter, Deputy Attorney General, Nashville, Tennessee,
for the appellees, Nina Harris, Joseph Bartlett, and William
W. McClarty, J., delivered the opinion of the court, in which
Charles D. Susano, Jr., J., and D. Michael Swiney, C.J.,
W. MCCLARTY, JUDGE.
20, 2015, Herbert S. Moncier ("Attorney") filed an
official request with the Tennessee Department of Safety and
Homeland Security ("TDOSHS"), requesting to inspect
each case file for which a forfeiture warrant had been
received by the Knoxville office of the department's
Legal Division since January 1, 2015. The purpose of
Attorney's request was to solicit prospective clients.
forfeiture proceedings in this state are governed by the
provisions contained in Tennessee Code Annotated sections
40-33-201 to -215. The seizing officer is required to prepare
and deliver a receipt titled "notice of seizure" to
the person found in possession of the property that is
seized. The notice of seizure contains the following
(1) A general description of the property seized and, if the
property is money, the amount seized;
(2) The date the property was seized and the date the notice
of seizure was given to the person in possession of the
(3) The vehicle identification number (VIN) if the property
seized is a motor vehicle;
(4) The reason the seizing officer believes the property is
subject to seizure and forfeiture;
(5) The procedure by which recovery of the property may be
sought, including any time periods during which a claim for
recovery must be submitted; and
(6) The consequences that will attach if no claim for
recovery is filed within the applicable time period.
Tenn. Code Ann. § 40-33-203. The address of the person
whose property is seized is also included.
seizing officer must apply for a forfeiture warrant within
five working days following the seizure. Upon issuance of a
forfeiture warrant, the officer is required to send the
warrant, a copy of the affidavit in support of the warrant,
and a copy of the notice of seizure within seven business
days to the applicable agency. Tenn. Code Ann.
§40-33-204. The statute provides that the "seizing
agency shall maintain a copy of the notice of seizure for all
property seized . . . and the notices and receipts shall
be public records." Id. (emphasis added).
Any person asserting a claim to property seized pursuant to
the civil forfeiture provisions may file, within thirty days
of being notified that a forfeiture warrant has issued, a
written claim with TDOSHS relating the person's interest
in the seized property and requesting a hearing. Tenn. Code
Ann. § 40-33-206(a).
record request was submitted under Tennessee Code Annotated
section 10-7-503, Tennessee's Public Records Act
("TPRA"). TPRA "has a noble and worthwhile
purpose by providing a tool to hold government officials and
agencies accountable to the citizens of Tennessee through
oversight in government activities." Tennessean v.
Metro Gov't of Nashville, 485 S.W.3d 857, 864 (Tenn.
2016). To facilitate access to records, TPRA requires that:
[A]ll state, county and municipal records shall, at all times
during business hours . . . be open for personal inspection
by any citizen of this state, and those in charge of the
records shall not refuse such right of inspection to any
citizen, unless otherwise provided by state law.
Tenn. Code Ann. § 10-7-503(a)(2)(A) (emphasis added).
Attorney observes that Tennessee Code Annotated section
40-33-204(g) holds that notices of seizures are public
Tennessee Supreme Court has characterized TPRA as "an
all encompassing legislative attempt to cover all printed
matter created or received by government in its official
capacity." Griffin v. City of Knoxville, 821
S.W.2d 921, 923 (Tenn. 1991) (citing Bd. of Educ. V.
Memphis Publ'g Co., 585 S.W.2d 629, 631 (Tenn. Ct.
App. 1979)). TPRA requires the courts to construe the statute
broadly "so as to give the fullest possible public
access to public records." Tenn. Code Ann. §
10-7-505(d). As noted by our Supreme Court: "There is a
presumption of openness for government records. Custodians of
the records are directed to promptly provide for inspection
any public record not exempt from disclosure."
Tennessean, 485 S.W.3d at 864 (citations omitted).
informed Attorney that there were approximately 1, 790 files
responsive to his request and that the records would be
provided to him in installments. On August 10, 2015, the
first installment was made available. The following day,
Attorney reviewed the first set of 50 files. Six days later,
Attorney expanded his prior records request to include case
management sheets maintained by TDOSHS for each file. The
department informed Attorney that the case management sheets
had been included in the first installment of records and
would continue to be provided in all future installments.
TDOSHS explained to Attorney that pursuant to both the
Tennessee Uniform Motor Vehicle Record Disclosure Act
("UMVRDA"), codified at Tennessee Code Annotated
sections 55-25-101 to -112, and the federal Driver Privacy
Protection Act ("DPPA"), 18 United States Code
sections 2721 to 2725, it was required to redact personal
information, such as addresses, obtained from motor vehicle
records. A "motor vehicle record" means any records
that pertain to a motor vehicle operator's or
driver's license or permit, motor vehicle registration,
motor vehicle title, or identification document issued by a
Department of Motor Vehicles ("DMV"), or other
state or local agency authorized to issue any of such forms
of credentials." 1996 Tenn. Pub. Acts, ch. 745,
§3(d), H.B. No. 2622. "Personal information"
means information that identifies a person, including address
and telephone number. Tenn. Code Ann. § 55-25-103(7).
Specifically, pursuant to Tennessee Code Annotated section
55-25-104, TDOSHS, and "any officer, employee, agent or
contractor thereof, shall not disclose personal information
about any person obtained "in connection with a motor
vehicle record." Accordingly, any addresses of persons
that had been obtained from or in connection with a motor
vehicle record were confidential and were redacted from the
documents provided for Attorney's inspection. TDOSHS
asserts that its redaction of personal information, including
addresses, from notices of seizure, affidavits, and warrants
received by its Legal Division was consistent with
TDOSHS's practice and had been previously communicated to
Attorney in 2011.
allows a person whose request for public records is denied to
file suit and seek judicial review of the governmental
entity's denial. Tenn. Code Ann. § 10-7-505(b). On
October 23, 2015, Attorney filed a "Complaint for Access
to Examine Records" against Bill Gibbons, the
Commissioner of TDOSHS, as well as Joseph Bartlett, the
Supervisor of TDOSHS's Legal Division-Eastern Section,
along with Nina Harris, Staff Attorney ("Staff
Attorney"). In the complaint, Attorney alleged that
Tennessee Code Annotated section 55-25-104 violated article
I, section 19 and article XI, section 16 of the Tennessee
Constitution and, therefore, could not be relied upon in
redacting personal information from the records in question.
Attorney further asserted that TDOSHS's redaction of
personal addresses was nothing but a pretext for denying him
access to public records under Tennessee Code Annotated
section 10-7-503(a)(2)(A). Shortly thereafter, the trial
court ordered TDOSHS to a hearing set for November 17, 2015,
to show cause why Attorney's petition should not be
subsequently issued a subpoena to Staff Attorney to produce
documents and appear at the show cause hearing. The subpoena,
which does not appear in the record, purportedly sought
production of a number of documents from TDOSHS, including
internal manuals, memoranda, and operating procedures, as
well as any and all communications with all persons
concerning Attorney's records request, along with the
boxes of the redacted records that had been produced for
inspection on August 11, 2015. Staff Attorney filed a motion
to quash the subpoena, arguing that the discovery rules set
forth in the Tennessee Rules of Civil Procedure are not
applicable to show cause hearings pursuant to Tennessee Code
Annotated section 10-7-505, and that the procedure for
judicial review provided for in the statute does not
authorize a plaintiff to conduct document discovery or
subpoena witnesses for the show cause hearing. TDOSHS's
response asserted, inter alia, that (1) the redactions were
mandated by the UMVRDA, the DPPA, and by relevant state and
Supreme Court precedent; and (2) that neither the UMVRDA nor
the DPPA violates the Tennessee Constitution because the
right to access public records is not a constitutional right
and may be limited by the Legislature. Staff Attorney did not
appear at the hearing, which proceeded on proffers made by
Attorney and TDOSHS. At the conclusion of the hearing, the
court granted Staff Attorney's motion to quash.
November 30, 2015, subsequent to the hearing, Attorney filed
a motion for leave to amend his petition to conform it
"to information proffered to the Court by the
parties." On December 7, 2015, he filed two declarations
in "Opposition to Respondents' Proposed Findings of
Fact and Conclusions of Law, " in which, according to
the defendants, Attorney sought to present evidence that he
had not presented at the show cause hearing. The following
week, Attorney filed "Supplemental Pleadings For
Proposed Findings of Fact and Conclusions of Law, "
which, according to the defendants, again sought to present
evidence that Attorney had not presented at the hearing and
served to supplement his petition. The defendants responded
that they had no objection to the amendment of the petition
to conform the issues pled to the evidence presented at the
hearing. However, they otherwise objected to Attorney's
January 15, 2016, the trial court denied the motion to amend.
Twelve days later, the court ruled that the defendants had
met their burden of showing cause for not releasing the
redacted information "in that there is no discernible
way to determine if any of the addresses were or were not
obtained from the Motor Vehicle Database" and the
release of such information would be in violation of the
UMVRDA and the federal DPPA. The court found that because the
right to inspect records under the TPRA was a statutorily
created right, the Legislature could limit that right and
that such limitation would not violate article I, section 19
of the Tennessee Constitution. Accordingly, the trial court
dismissed Attorney's petition in its entirety and with
timely filed this appeal.
consolidated the issues on appeal as follows:
1.Whether the trial court correctly held that the UMVRDA does
not violate article I, section 19 of the Tennessee
2.Whether the trial court properly ruled regarding
Attorney's record request?
3.Whether the trial court abused its discretion in granting
Staff Attorney's motion to quash Attorney's subpoena
and in denying Attorney's post-hearing motion for leave
to amend his petition?
STANDARD OF REVIEW
trial court's findings of fact were based on documentary
evidence, consisting of the parties' declarations and
exhibits. In the absence of live witness testimony, an
appellate court is able to assess credibility and weigh the
evidence as well as the trial court. Kelly v. Kelly,
445 S.W.3d 685, 693 (Tenn. 2014). As a result, the trial
court's findings of fact are not entitled to a
presumption of correctness. Id.; cf. Tenn. R. App.
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