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Moncier v. Harris

Court of Appeals of Tennessee, Knoxville

April 5, 2018

HERBERT S. MONCIER
v.
NINA HARRIS, ET AL.

          December 13, 2016 Session

          Appeal from the Chancery Court for Knox County No. 190527-2 Clarence E. Pridemore, Jr., Chancellor

         This 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.

         Tenn. 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 Gibbons.

          John W. McClarty, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and D. Michael Swiney, C.J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE.

         I. BACKGROUND

         On July 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.

         Civil 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 information:

(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 seized property;
(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.

         The 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).

         Attorney's 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 records.[1]

         The 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).

         TDOSHS 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.

         TPRA 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[2] and article XI, section 16[3] 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 granted.

         Attorney 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.

         On 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 motion.

         On 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 prejudice.

         Attorney timely filed this appeal.

         II. ISSUES

         We have 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 Constitution?
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?

         III. STANDARD OF REVIEW

         The 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. P. 13(d) ...


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