SCRIPPS MEDIA, INC., ET AL.
TENNESSEE DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES, ET AL.
Session June 4, 2019
from the Chancery Court for Davidson County No. 18-835-II
Anne C. Martin, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed, in Part, and Reversed, in Part; Case
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.
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.
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.
MICHAEL SWINEY, CHIEF JUDGE
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.
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.
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. . . ."
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).
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."
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
The notable difference between the facts in
Tennessean and the present case is that the requests
were directed to non-investigative State agencies,
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. ...