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Scripps Media, Inc. v. Tennessee Department of Mental Health and Substance Abuse Services

Court of Appeals of Tennessee, Nashville

August 16, 2019


          Session June 4, 2019

          Appeal from the Chancery Court for Davidson County No. 18-835-II Anne C. Martin, Chancellor

         This appeal concerns a request for public records. Phil Williams ("Mr. Williams"), a reporter, requested records from the Tennessee Department of Mental Health and Substance Abuse Services ("TDMHSAS") and the Tennessee Bureau of Investigation ("TBI") ("the State," collectively) concerning an alleged affair between two State officials that may have involved public funds. The State refused on the basis that the records were part of an ongoing criminal investigation. Mr. Williams and his employer, Scripps Media, Inc. ("Scripps"), ("Petitioners," collectively) then filed a petition in the Chancery Court for Davidson County ("the Trial Court") seeking the records via the Tennessee Public Records Act ("the TPRA"), Tenn. Code Ann. § 10-7-101 et seq. Before the petition was heard, the investigation ended and the State produced the records. The Trial Court found the public interest exception applied notwithstanding the petition's mootness and determined that the records were exempted from disclosure by Tenn. R. Crim. P. 16. Petitioners appealed. As did the Trial Court, we find this to be a matter of public interest warranting resolution even though moot. We hold that non-investigative public records made in the ordinary course of business, capable of being accessed from their inception by citizens of Tennessee, do not become exempt from disclosure because of the initiation of a criminal investigation in which they become relevant. Finding the State's legal argument reasonable although erroneous, we decline Petitioners' request for attorney's fees under the TPRA. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed, in Part, and Reversed, in Part; Case Remanded

          Ronald G. Harris and William J. Harbison, II, Nashville, Tennessee, for the appellants, Scripps Media, Inc. and Phil Williams.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Janet M. Kleinfelter, Deputy Attorney General; and, Andrew B. Campbell, Assistant Attorney General, for the appellees, the Tennessee Bureau of Investigation and the Tennessee Department of Mental Health & Substance Abuse Services.

          Paul R. McAdoo, Nashville, Tennessee, for amici curiae, the Associated Press, Gannett Co., Inc., Gatehouse Media, LLC, Gray Television Group, Inc., Sinclair Broadcast Group, Inc., the Tennessee Coalition for Open Government, Inc., and Tribune Media Company.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S. and Richard H. Dinkins, J., joined.




         On June 15, 2018, then-Governor Bill Haslam began receiving emails from Kim Locke ("Ms. Locke"), wife of former Acting TBI Director Jason Locke ("Mr. Locke"), asserting that her husband was having an affair with Sejal West ("Ms. West"), an employee with TDMHSAS. In an email to Governor Haslam, Ms. Locke stated that her husband "picked up a gun last night and held it in his hands the whole time we talked." Ms. Locke stated that she felt she was in danger. In another email, she wrote: "Sejal West's husband told me that there were numerous trips out of town on state time that they took together, jason only admitted to 2 trips." As a result of receiving these emails, Governor Haslam asked the Tennessee Department of Safety and Homeland Security to investigate. On June 18, 2018, Governor Haslam asked the Comptroller's Office to assist in the investigation. Also on June 18, the District Attorney General for the 20th Judicial District announced he was joining the investigation.

         On June 15, 2018, the same day she contacted the Governor, Ms. Locke also contacted Nashville television station NewsChannel 5, which is owned by Scripps. Mr. Williams, chief investigative reporter for NewsChannel 5, began to investigate the matter. Mr. Williams put in several requests for public records. On June 15, 2018, Mr. Williams requested from the TBI all travel reimbursement and per diem requests submitted by Mr. Locke since November 2016; all logs of phone calls made on any mobile phone assigned to Mr. Locke since November 2016; and, any e-mails between Mr. Locke and Ms. West. Mr. Williams sought from TDMHSAS the same materials regarding Ms. West. On June 18, Mr. Williams sought from TDMHSAS Ms. West's electronic calendar since November 2016 and, from the TBI, the electronic calendars for Mr. Locke for the same time period. On June 19, Mr. Williams sought from TDMHSAS any items in Ms. West's personnel file or any other file kept by the Commissioner or her designee regarding Ms. West's resignation. On June 20, Mr. Williams sought from TDMHSAS any e-mail or other written communication related to Ms. West's job status. On June 21, Mr. Williams sought from the TBI transaction summaries since July 2, 2016 for any credit cards or p-cards that may have been assigned to Mr. Locke. On June 22, Mr. Williams sought from the TBI any text messages between Mr. Locke and Ms. West.

         On June 22, 2018, the State, through the Attorney General's Office, refused to disclose the records, citing an ongoing criminal investigation. In a July 11, 2018 letter, the State repeated this position, adding that "once the criminal investigation is completed, and if there is no ensuing prosecution, the investigation will be closed and the requested records will be made available. . . ."

         On July 31, 2018, Petitioners filed their Petition for Access in the Trial Court pursuant to the TPRA, seeking access to the records as well as attorney's fees. Petitioners cited to Tenn. Code Ann. § 10-7-503(a)(2)(A), which provides:

All state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, 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) (Supp. 2018).

         Before the petition was heard, the criminal investigation concluded and the State disclosed the records. In September 2018, the Trial Court conducted a hearing on the petition. Notwithstanding the petition's mootness, the Trial Court performed an analysis of the relevant factors and concluded that the public interest exception to the mootness doctrine applied such that the matter should be decided. The Trial Court stated, in part: "[C]larity in the law regarding public record disclosure obligations is much needed, due to the intrinsic importance of transparency in government and the frequency of such requests. As discussed above, it is likely this issue will arise again."

         The Trial Court went on to agree with the State that the records were exempt from disclosure. In so determining, the Trial Court relied heavily on Tennessean v. Metro. Gov't of Nashville, 485 S.W.3d 857 (Tenn. 2016), an opinion in which our Supreme Court concluded that the "other state law" catch-all exception of Tenn. Code Ann. § 10-7-503(a)(2)(A) means that Tenn. R. Crim. P. 16 controls discovery and disclosure in a criminal case rather than the TPRA. In its October 2018 order, the Trial Court discussed its rationale:

The notable difference between the facts in Tennessean and the present case is that the requests were directed to non-investigative State agencies, [1] and the records were developed and retained by those agencies in the ordinary course of business. They were not created for or through an investigation, but rather became part of the investigation after it was commenced. The State takes the position that the records changed in character when the investigation began and that, by becoming part of the investigation, they fell under the Rule 16 exception. Further, the State contends that it does not matter the nature of the records when they were created, but rather their nature when produced. The State relies on the importance of the constitutional rights of criminal defendants, as discussed in detail in Tennessean, as well as the public policy that parties should not be able to avoid the discovery rules in the Tennessee Rules of Criminal Procedure to obtain prosecutors' files. Tennessean, 485 S.W.3d at 866-73.
The Petitioners take the opposite position-that the nature of the records when they were created is key, not whether they are subsequently provided to another agency as part of an investigation. They rely on Chattanooga Pub. Co. v. Hamilton County Election Com'n, E2003-00076-COA-R3-CV, 2003 WL 22469808 (Tenn. Ct. App. Oct. 31, 2003), where the facts are analogous to the facts in this case, i.e., the public records were provided to the investigative agency as a result of a criminal investigation subsequent to their creation. In Chattanooga Pub Co., the Court of Appeals found that the nature of the records at the time of the request controlled how they were classified and whether the Rule 16 exemption applied. Id. at *1 and *4. While Chattanooga Pub. Co. could arguably be applied to find that the records requested in the present case are not subject to Rule 16 exemption, the more recent ruling in Tennessean militates against such a result. Even though the records sought in Tennessean were in the possession of the law enforcement agency because of an investigation, and the records in the present case were transferred to a law enforcement agency to initiate an investigation, the rule in Tennessean applies to documents in the possession of an investigative agency relevant to a pending or contemplated criminal action and affords those records blanket protection pursuant to Rule 16. Thus, even though the records at issue are still public records created "in connection with the transaction of official business by [a] governmental agency," Tenn. Code Ann. §10-7-503(a)(1)(A), and even though the records are not of the same nature or character as the records sought in Tennessean, the Court's intention in Tennessean appears to be for a broad application of the Rule 16 exemption to protect any documents in an investigative file from disclosure. Under this interpretation, the State acted properly in protecting the records from disclosure.

(Footnote in original but renumbered). Having ruled in favor of the State, the Trial Court declined to award Petitioners their attorney's fees under the TPRA. ...

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