Konvalinka v. Chattanooga-Hamilton County Hospital Authority

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 4, 2010 Session

JOHN P. KONVALINKA. v. CHATTANOOGA-HAMILTON COUNTY
HOSPITAL AUTHORITY

Appeal from the Chancery Court for Hamilton County
No. 08-0334 Howell N. Peoples, Chancellor

No. E2010-00543-COA-R3-CV - FILED OCTOBER 28, 2010

This is the second time this case, filed by John P. Konvalinka (“the Petitioner”) to force
disclosure of public documents, has been before us. In the trial court’s order that generated
the first appeal, the court held that the records the Petitioner requested from Chattanooga-
Hamilton County Hospital Authority (“the Hospital” or “Erlanger”) were exempt from
disclosure under state law, and pretermitted the question of whether they were exempt from
disclosure under federal law. On appeal, we held that the records were not protected from
disclosure by state law and remanded for a determination of whether they were protected
from disclosure by federal law. The Hospital attempted on remand to assert additional state
law defenses to disclosure. The trial court held that the new state law defenses were outside
the scope of the remand. It also held that federal law did not protect the documents at issue
from disclosure. Accordingly, it ordered the Hospital to produce the documents. The
Hospital appeals challenging both aspects of the trial court’s judgment. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Fred H. Moore and Joseph R. White, Chattanooga, Tennessee, and Richard L. Shackelford
and Lynn M. Adam, Atlanta, Georgia, for the appellant, Chattanooga-Hamilton County
Hospital Authority.

John P. Konvalinka, Chattanooga, Tennessee, Pro Se.
 OPINION

I.

As we have stated, this is the second time this case, initiated by a petition filed
pursuant to Tenn. Code Ann. §§ 10-7-101, et seq., and 10-7-503, et seq. (1999 and 2009
Supp.), has been before this Court. The first appeal was Konvalinka v. Chattanooga-
Hamilton County Hospital Authority, No. E2008-02091-COA-R3-CV, 2009 WL 1530194
(Tenn. Ct. App. E.S., filed June 2, 2009) (“Konvalinka I”). The general factual background
of the case is set forth in Konvalinka I as follows:

The documents at issue in this Public Records Act case have
their genesis from a federal and state investigation surrounding
allegations that the Hospital submitted false claims to Medicare
and Medicaid and improperly paid remuneration to physicians
for referring patients to the Hospital. The Hospital eventually
entered into settlement agreements with both the federal Office
of Inspector General of the Department of Health and Human
Services [(“OIG”)] and the State of Tennessee. In addition to
the settlement agreements, the Hospital entered into a Corporate
Integrity Agreement [(“CIA”)] with the [OIG]. The [CIA] was
designed to promote compliance with the applicable statutes and
regulations. Among other things, the [CIA] required the
Hospital to establish and maintain a compliance program, which
included the creation of a compliance committee.

In March 2008, Petitioner served a request for access to public
records on the Hospital seeking access to fifty-three separate
groups of documents. Only three of the fifty-three requests are
at issue in this appeal. These three requests are:

(12) Copies of all compliance reports submitted to
the Compliance Committee since the 2005
settlement between Chattanooga Hamilton County
Hospital Authority and the United States Federal
Government/United States Justice Department; ...

(17) Copies of all minutes from all meetings of
the Erlanger Medical Center's Compliance
Committee for the past four years; . . . [and]

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 (41) Copies of all minutes from all meetings of
Erlanger's Compliance Committee for the past
four (4) years. . . .FN1

FN1. Request No. 17 and Request No. 41 appear to request the
same information. In his brief on appeal, Petitioner
acknowledges that these two requests do in fact request the same
documents.

After the Hospital refused to provide these three groups of
requested documents, Petitioner filed a Petition for Access to
Public Records with the Trial Court. Petitioner claimed that the
Hospital lacked a good faith basis upon which to deny the public
records request. Petitioner requested the Trial Court issue a
show-cause order requiring the Hospital to appear and show
cause why the petition should not be granted. Petitioner further
requested the Trial Court enter an order requiring the Hospital
to produce the records and award Petitioner his attorney fees.

Konvalinka I, at *1-2 (footnote in original, some bracketed material added). We will refer
to “these three groups of requested documents” that remain at issue as “the Documents.”

On May 7, 2008, the trial court in Konvalinka I ordered the Hospital to appear for a
hearing on May 22, 2008, “and show cause, if it has any, why the subject petition should not
be granted.” (Emphasis added). The show cause hearing was reset by an agreed order “so
that the Court can hear . . . [the Hospital’s] argument as to why any unproduced documents
are exempt from the Tennessee Public Records Act and Tennessee Open Records Law.”
(Emphasis added). At the hearing, the Hospital asked for leave to filed a post-hearing
memorandum to show why it should not be compelled to produce the documents. A day
after the hearing, the Hospital filed its “Motion for Protective Order.” The only grounds
asserted in the motion were that the documents were exempted from disclosure by two
specific provisions in the Open Records Acts found at Tenn. Code Ann. § 10-7-504
(a)(2)(A), and Tenn. Code Ann. § 10-7-504(a)(5)(A), and by one provision in the Federal
Freedom of Information Act (“FOIA”) found at 5 U.S.C. § 552. The trial court agreed with
the Hospital on its state law arguments. Its analysis, as set forth in Konvalinka I, sheds
necessary light on the issues now before us.

In October 2005, [the Hospital] entered into a [CIA] and a
Settlement Agreement with the [OIG] . . . . [The Hospital] also

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at this time entered into a Settlement Agreement with the State
of Tennessee. The CIA requires heightened internal scrutiny
and investigation of potential problems, detailed reporting of the
results of these investigations to OIG, and the detailed
notification of OIG of any “investigation or legal proceeding ...
brought by a governmental entity ... involving an allegation that
Erlanger has committed a crime or had engaged in fraudulent
activities.”

* * *

Under the CIA, [the Hospital] is required to form a Compliance
Committee to monitor compliance with the CIA and report
directly to the OIG, as well as establish a Disclosure Program to
allow for employee disclosure of potential issues with or
questions about [the Hospital's] compliance with civil, criminal
or administrative law. . . . The CIA required Erlanger to create
a Code of Conduct setting forth, among other things, “the
requirement that all of [Erlanger's officers, directors, agents and
employees] shall be expected to report to the Compliance
Officer . . . suspected violations of any Federal health care
program requirements or of Erlanger's own Policies and
Procedures.” Likewise, the Code of Conduct had to contain a
“commitment to nonretaliation and to maintain, as appropriate,
confidentiality and anonymity with respect to such disclosures.”
. . . (emphasis added).

The Disclosure Program under the CIA had to allow for a
mechanism through which individuals could report, with an
expectation of anonymity and confidentiality, any potential
violations of law. . . . Like the Compliance Committee's Code
of Conduct, the Disclosure Program had to emphasize the
protection of “anonymous communications for which
appropriate confidentiality shall be maintained.” (emphasis
added). These anonymous and confidential reports, once
received via the Disclosure Program, were given to the
Compliance Officer. The Compliance Officer is required under
the CIA to perform an investigation of all such reports, and to
keep a log containing the reports themselves along with “the

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status of the respective internal reviews, and any corrective
action taken. . . .”

The CIA also requires that Erlanger submit annual reports to
OIG “with respect to the status of, and findings regarding,
Erlanger's compliance activities. . . .” These reports must
contain a variety of information, including a summary of
“Reportable Events” (e.g. potential violations of law), and
corrective action taken in response to a violation or other issue,
a summary of the Disclosure Program's log, a summary of “any
ongoing investigation or legal proceeding” against the hospital
that it is required to report under the CIA. . . .

Under Tenn. Code Ann. § 10-7-503(a), “all state, county and
municipal records . . . shall at all times . . . be open for personal
inspection by any citizen of Tennessee, and those in charge of
such records shall not refuse such right of inspection to any
citizen, unless otherwise provided by state law.” The statute
does, however, limit its otherwise broad applicability with a
number of exceptions for certain confidential records. One of
the most pertinent exceptions in relation to this case provides
that, “[a]ll investigative records of . . . the office of inspector
general . . . shall be treated as confidential and shall not be open
to inspection by members of the public. The information
contained in such records shall be disclosed to the public only in
compliance with a subpoena or an order of a court of record.”
Tenn. Code Ann. § 10-7-504(a)(2)(A).

[The Hospital] argues that this exception applies to the three
records requests at issue here because [their] records were
“generated, compiled and reported pursuant to the requirements
of the CIA as part of the ongoing investigation by and settlement
negotiations with the OIG.” . . . [The Hospital] also asserts it
was “performing investigative functions on behalf of and at the
request of the OIG,” and that the products of these investigative
activities are clearly exempted from disclosure under the statute.
. . . Petitioner, on the other hand, argues merely that this
exception is inapplicable to the requested records in this case
because [the Hospital] “cites no authority for its position that it

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 is now an agent of the OIG,” and is therefore not entitled to
confidentiality protections under the statute. . . .

Konvalinka I, at * 2-3 (quoting trial court, headings omitted, omission in original, some
bracketed material added). The trial court agreed with the Hospital and denied the Petitioner
access to the Documents.

On appeal in Konvalinka I, the

Hospital argue[d] that the Trial Court was correct when it found
that Tenn. Code Ann. § 50-7-504(a)(2)(A) protected the records
from disclosure. The Hospital further argue[d] that even if
Tenn. Code Ann. § 50-7-504(a)(2)(A) d[id] not apply, the
records nevertheless are protected from disclosure pursuant to
Tenn. Code Ann. § 50-7-504(a)(5)(A) as well as applicable
federal statutes and regulations.

Konvalinka I at *5. We disagreed with the Hospital with regard to the state statute, but
remanded the federal aspect. We stated as follows:

Tenn. Code Ann. § 10-7-504(a)(2)(A) provides, in relevant part,
as follows:

All investigative records of . . . the office of the inspector
general . . . shall be treated as confidential and shall not be open
to inspection by members of the public. The information
contained in such records shall be disclosed to the public only in
compliance with a subpoena or an order of a court of record. . . .
(emphasis added).

The issue as to whether the above quoted statute applies in this
case depends on whether, as the Hospital claims, “the office of
inspector general” includes or is referring to both the state and
federal Office of Inspector Generals. Petitioner claims that this
statute only applies to the state Office of Inspector General, and
because the Corporate Integrity Agreement was entered into
between the Hospital and the federal Office of Inspector
General, the statute simply has no bearing on this case.

* * *

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. . . . In short, we agree with Petitioner that the General
Assembly was not referring to the federal Office of Inspector
General in Tenn. Code Ann. § 10-7-504(a)(2)(A), and the
decision of the Trial Court on this issue is reversed.

The next issue is whether the records are exempt from
disclosure pursuant to Tenn. Code Ann. § 10-7-504(a)(5)(A).
The relevant portion of this statute provides as follows:

(5)(A) The following books, records and other materials in the
possession of the office of the attorney general and reporter
which relate to any pending or contemplated legal or
administrative proceeding in which the office of the attorney
general and reporter may be involved shall not be open for
public inspection:

(i) Books, records or other materials which are confidential or
privileged by state law;

(ii) Books, records or other materials relating to investigations
conducted by federal law enforcement or federal regulatory
agencies, which are confidential or privileged under federal law
. . . . (emphasis added).

On appeal, the Hospital acknowledges that the Tennessee
Attorney General is not in physical possession of the requested
documents. The Hospital argues, however, that “possession”
does not necessarily mean physical possession. We need not
decide if “in the possession” means more than actually
physically possessing the documents because we conclude, at a
minimum, that the clear language of the statute requires the
Tennessee Attorney General to have actual physical possession
of the documents in order for this exception to apply. Therefore,
we conclude that Tenn. Code Ann. § 10-7-504(a)(5)(A) does not
apply in this case.

Although we conclude that Tenn. Code Ann. §§
10-7-504(a)(2)(A) and (a)(5)(A) do not prohibit disclosure of
the requested documents, this does not end our inquiry.
Although the Tennessee Attorney General was involved in this

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 case, the development of the Corporate Integrity Agreement was
done through the federal Office of Inspector General. The
federal Office of Inspector General is certainly at liberty to
provide that certain documents generated pursuant to the
Corporate Integrity Agreement are confidential consistent with
the provisions of the Freedom of Information Act and/or the
regulations adopted by the Department of Health and Human
Services. The Office of Inspector General's ability to do that is
not eliminated simply because the agreement is entered into with
a state governmental entity such as the Hospital. In such a
situation, federal law could very well prohibit disclosure of
these documents even if state law does not.

The Hospital argues that the requested documents are protected
from disclosure pursuant to exceptions contained in the Freedom
of Information Act, 5 U.S.C. § 522(b), as well as regulations
implemented by the Department of Health and Human Services
addressing confidentiality of certain documents, including 45
C.F.R. §§ 5.65 and 5.68. The Trial Court never addressed
whether the documents at issue in this case were confidential
under federal law as that issue was rendered moot once the Trial
Court concluded, incorrectly, that the documents were protected
from disclosure under Tenn. Code Ann. § 10-7-504(a)(2)(A).
Because these documents are not in the record before us, we
cannot determine if they are confidential under applicable
federal law. Therefore, we remand this case to the Trial Court
for a determination as to whether all or any portions of the
requested documents are protected from disclosure pursuant to
either federal statute(s) or federal regulation(s).

Konvalinka I at * 5 -7 (footnotes omitted, emphasis added).

The happenings on remand are accurately set out in the trial court’s memorandum and
order wherein it ordered the Hospital to produce the documents subject only to redactions
necessary to protect the identity of persons making reports under the Disclosure Program:

On November 20, 2009, the Hospital filed its Answer to Petition
for Access to Public Record, in which . . . [f]or the first time the
Hospital asserted additional state law grounds as follows:

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 The records requested in the Petition are
confidential and protected from disclosure under
Tennessee law, including but not limited to the:
(a) Tennessee Peer Review Law of 1967, Tenn.
Code Ann. § 63-6-219;
(b) Tennessee Uniform Trade Secrets Act, 47-25-
1701, et seq.;
(c) Deliberative Process Privilege;
(d) Self-Evaluative Privilege;
(e) Attorney-Client Privilege; and
(f) Work-Product Doctrine.

Also, on November 20, 2009, the Hospital filed its Renewed
Motion for Protective Order and Amended Response to Motion
to Compel in which the Hospital seeks to rely on the new state
law defenses included in its Answer to Petition for Access to
Public Record[s]. On November 25, 2009, [the P]etitioner filed
a Response to Motion for Protective Order and Amended
Response to Motion to Compel in which he asserts that the
Court of Appeals remanded the matter solely for this Court to
make a determination whether federal law precludes disclosure
of the documents. On December 1, 2009, the Court conducted
a hearing on the case, and sustained the position of
[theP]etitioner. The Court excluded the testimony of witnesses
based on state law claims, but permitted the Hospital to take the
depositions of the excluded witnesses out of the presence of the
Court for consideration in the event of an appeal.

After having determined that issues under the remand were
limited, the hearing continued for the Hospital to present
evidence and law to support its claims based on federal law and
federal regulations. The Hospital offered the testimony of Alana
Sullivan, Vice President and Chief Compliance Officer of the
Hospital, and the testimony of Howard Young, who formerly
worked for the Department of Health and Human Services OIG,
. . . concerning the federal regulation bearing on the Corporate
Integrity Agreement between the Hospital and the OIG. At the
conclusion of the hearing on December 1, 2009, the Court took
the matter under advisement.

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On December 22, 2009, the Hospital filed Respondent’s Motion
for Reconsideration again asking the Court to consider the state
law grounds presented in its Renewed Motion for Protective
Order. On January 8, 2010, [theP]etitioner filed Petitioner’s
Response to Motion for Reconsideration objecting to expanding
the scope of the hearing on remand. This Court assumes that the
Court of Appeals would have addressed all state law claims that
were asserted on appeal. The state law claims asserted in the
Hospital’s Renewed Motion for Protective Order were first
asserted in the trial court more than three months after the
Mandate from the Court of Appeals was filed and 18 months
after suit was filed. The legislature has set out the procedure to
be followed by Chancery Court when judicial review of actions
denying access to public records is requested in Tenn. Code
Ann. § 10-7-505(b):

Upon the filing of the petition, the court shall,
upon request of the petitioning party, issue an
order requiring the defendant or respondent party
or parties to immediately appear and show cause,
if they have any, why the petition should not be
granted. A formal written response to the petition
shall not be required, and the generally applicable
periods of filing such response shall not apply in
the interest of expeditious hearings. The court
may direct that the records being sought be
submitted under seal for review by the court and
no other party. The decision of the court on the
petition shall constitute a final judgment on the
merits.

This provision seems to contemplate that any, and all, grounds
for refusing access to public records will be promptly addressed
by the Court at the show cause hearing. Based upon the Opinion
and Judgment of the Court of Appeals, and Tenn. Code Ann. §
10-7-505, the Court finds that the Respondent’s Motion for
Reconsideration should be denied.

The Court of Appeals noted that the federal Office of Inspector
General could provide that certain documents generated

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pursuant to the [CIA] are confidential, and that in such a case,
federal law could prohibit disclosure of the documents even if
state law did not. The Hospital’s post-hearing brief . . . states:

According to the CIA, not only should the identity
of those who make disclosures be kept
confidential, but also the disclosures themselves
must be treated with confidentiality as
appropriate. . . (emphasis added).

While the cited section of the [CIA] specifically addresses
confidentiality of persons making reports of violations of any
Federal health care program or the Hospital’s own Policies and
Procedures, it does not state that the disclosures are confidential.
The Court finds that the CIA requires the Hospital to establish
a system that protects the anonymity of the individual making a
report of an alleged violation, but it does not require that the
report itself be kept confidential.

The CIA does have a provision allowing the Hospital to
designate certain information gathered for the OIG as
confidential.

Designation of Information. Erlanger shall
clearly identify any portions of its submissions
that it believes are trade secrets, or information
that is commercial or financial and privileged or
confidential, and therefore potentially exempt
from disclosure under the Freedom of Information
Act (FOIA), 5 U.S.C. § 552. Erlanger shall
refrain from identifying any information as
exempt from disclosure if the information does
not meet the criteria for exemption from
disclosure under FOIA.

. . . The Hospital did not mark any documents gathered for the
OIG as “confidential” until some time after this lawsuit
commenced, according to Alana Sullivan, the Hospital’s Chief
Compliance Officer.

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 * * *

Failure to designate any documents provided to the OIG as
confidential under the FOIA weakens the Hospital’s claim that
the documents requested by petitioner are confidential under
federal law. The Hospital relies on the holding in Hersh &
Hersh v. U.S. Dept. of Health and Human Services, 2008 WL
901539 (N.D. Cal.) for its assertion that federal law precludes
disclosure of the information generated pursuant to the CIA. . .
. . In holding that certain requested documents could not be
disclosed, the Hersh court noted that the documents at issue
were produced pursuant to a CIA entered into with the OIG and
that the Director of Global Compliance of the producing party
had “expressly notified OIG that the documents submitted were
confidential and subject to exemption under FOIA.” In the case
before this Court, the Hospital had failed to identify to the OIG
any documents “it believes are trade secrets, or information that
is commercial or financial and privileged or confidential and
therefore potentially exempt from disclosure . . . .”

* * *

In the present case, the CIA requires the Hospital to create a
“disclosure program” that will maintain the anonymity of
persons reporting potential violations of federal health laws by
the Hospital to prevent retribution or retaliation for making a
report. The Hospital is required to maintain a “disclosure log”
of each disclosure, whether anonymous or not, that shall be
made available to the OIG. . . . . Disclosure of any information
that might compromise the identity of those persons reporting
potential violations would violate the terms of the CIA and
impair the OIG’s ability to obtain necessary information in the
future, therefore, the Hospital must redact any such identifying
information from the documents requested by petitioner. The
Hospital has failed to demonstrate any other basis under federal
law to withhold the requested documents.

The Hospital has appealed.

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 II.

The issues on appeal are:

Whether the trial court erred when it refused to consider the
additional state law defenses on remand.

Whether the trial court erred in its determination that the records
are not rendered confidential under federal law.

Whether the trial court erred in admitting and considering the
Hospital’s expert testimony concerning the confidentiality of
Documents.

Whether the trial court erred in not awarding Petitioner his
attorney’s fees and expenses.

III.

The issue of whether this Court’s judgment in Konvalinka I precludes the Hospital
from raising new state law defenses is a question of law. See Konvalinka v. Chattanooga-
Hamilton County Hosp. Auth., 249 S.W.3d 346, 356 & n.19 (Tenn. 2008). We review
questions of law de novo, with no presumption of correctness. Southern Constructors, Inc.
v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). The application of state
and federal statutes and regulations to the facts of this case to determine whether the
Documents are exempt from disclosure also involves questions of law. Memphis Publishing
Co. v. Cherokee Children & Family Serv’s., 87 S.W.3d 67, 74 (Tenn. 2002).

IV.

A.

We begin with the issue of whether the trial court erred in refusing to allow the
Hospital to assert new state law defenses to production on remand. We conclude that it did
not err in limiting the issue on remand solely to the one we identified in our opinion, i.e.,
whether there was a basis in federal law for denying production of the Documents.

The Hospital argues that since we did not explicitly articulate that the “sole” issue for
consideration on remand was whether federal law prevented disclosure of the Documents,
it was free to assert any ground not explicitly asserted and rejected previously by the trial

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court. The Hospital likens this case to Crafton v. Van den Bosch, 196 S.W.3d 767, 771
(Tenn. Ct. App. 2005). Unfortunately for the Hospital, Crafton does not involve a public
records petition. In Crafton, a client (Mr. Crafton) had sued his former attorney for
malpractice. The attorney (Mr. Van den Bosch) filed a motion for summary judgment, which
the trial court denied. Id. at 769. We accepted an interlocutory appeal by the attorney on the
issue of whether the trial court had erred in denying summary judgment. Id. We affirmed
the trial court and remanded for further proceedings. Id. On remand, the attorney filed a
motion for summary judgment that asserted the action was barred by the statute of
limitations. Id. The trial court granted summary judgment and dismissed the case. On
appeal, the client argued that the trial court should not have even considered the motion,
summary judgment having once been requested, denied, and affirmed. Id. at 771. We
observed that had the attorney “simply re-filed the Original Motion for Summary Judgment
upon remand, this Court would likely be of the opinion that same was res judicata based
upon our holding in [the first appeal].” Id. However, “[s]ince the statute of limitations issue
was neither raised in the original appeal . . . nor discussed in this Court’s opinion,” there was
nothing to prevent consideration of the statute of limitations defense on remand. Id. The
Hospital characterizes the first proceedings which resulted in the order appealed in
Konvalinka I, as simply a dispositive motion, with full consideration of the merits available
on remand as in Crafton.

There is an important distinction between this public records case and the routine
motion for summary judgment. Summary judgment has been recognized as an important
procedural mechanism for disposing of “all or any part” of a case that does not involve a
“genuine issue as to any material fact.” Tenn. R. Civ. P. 56 (Advisory Comment); Byrd v.
Hall, 847 S.W. 2d 208, 210, 215-16 (Tenn. 1993). Rule 56 in fact recognizes that some
summary judgments are “interlocutory in character,” for example, when there is a
determination that there is no genuine issue of material fact about liability even though there
may be such an issue about damages. Tenn. R. Civ. P. 56.04. The absence of a genuine issue
of material fact as to any one element of a claim renders the other elements moot. Byrd, 847
S.W.2d at 215 n.5. To hold that a litigant who loses his or her summary judgment on appeal
cannot asset new grounds for summary judgment on remand would be to rewrite the law of
summary judgment as we know it.

On the other hand, the legislature has made it clear to us that a party resisting requests
for public documents cannot assert its defenses piecemeal. By statute, the burden of proof
is placed upon the opponent of production to show “justification for the nondisclosure . . .
by a preponderance of the evidence.” Tenn. Code Ann. § 10-7-505(c). The trial court is
directed by statute what it must do once a petition for production of documents is filed; “the
court shall, upon request of the petitioning party, issue an order requiring the defendant or
respondent party or parties to immediately appear and show cause, if they have any, why the

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petition should not be granted.” Tenn. Code Ann. § 10-7-505(b)(emphasis added). The
statute dispenses with the need for an answer. Id. The opponent of the petition may simply
appear and present its defenses. “The decision of the court on the petition shall constitute
a final judgment on the merits.” Id. Further, all courts are directed to construe the statute
“broadly . . . so as to give the fullest possible public access to public records.” Tenn. Code
Ann. § 10-7-505(d). Unlike a summary judgment that may be granted on the basis of one
missing element, or one affirmative defense, Hannan v. Alltel Publishing Co., 270 S.W.3d
1, 9 (Tenn. 2008), the judgment rendered on a records request necessarily encompasses “any”
defense the party opposing production may “have” as to why the “petition should not be
granted.” It would not promote public access for us to hold that an opponent to production
may piecemeal its defenses, raising a new one each time it loses an appeal.

The Hospital acknowledges the general rule that a trial court must follow the mandate
of an appellate court on remand. See Silvey v. Silvey, No. E2003-00586-COA-R3-CV, 2004
WL 508481(Tenn. Ct. App. E.S., filed March 16, 2004). However, the Hospital tries to limit
the general rule with the proviso that the mandate “is controlling as regards matters ‘within
its compass, but on the remand a lower court is free as regards other issues.’ ” State v.
Williams, 52 S.W.3d 109, 123 (Tenn. Crim. App. 2001). We will take the Hospital’s
assertion at face value because it is clear to us that these new defenses were “within [the]
compass” of our holding in Konvalinka I. The trial court’s order being appealed in
Konvalinka I must be viewed as a final judgment on the merits concerning any “justification
for . . . nondisclosure” the Hospital could muster. Our judgment on appeal, then, precludes
any defense that could have been raised in the trial court or on appeal other than the single
issue we directed the trial court to consider, namely, “whether all or any portions of the
requested documents are protected from disclosure pursuant to either federal statute(s) or
federal regulations(s).” Konvalinka I at *7.

The Hospital raises the inventive argument that it has new evidence, therefore our
mandate in Konvalinka I does not restrict the proceedings on remand. See Memphis
Publishing Co. v. Tennessee Petroleum, 975 S.W.2d 303, 306 (Tenn. 1998)(listing
exception to “law of the case” doctrine to include different evidence). We understand that
sometimes a party may discover new evidence that may change the complexion of a case
from one hearing to the next, but we do not believe that common sense notion has any
application to the facts of this case. Here, the Hospital simply expanded the number of
grounds for treating the documents confidential, and proceeded on remand to gather evidence
in support of those new grounds. If a party could avoid res judicata or application of law of
the case by simply thinking up new claims or defenses and then procuring evidence in
support of those claims or defenses, we are not sure either doctrine would ever be applicable.
We see no merit to this argument. Accordingly, we hold that the trial court did not err in
rejecting the Hospital’s new “justification[s] for the nondisclosure” on remand.

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 B.

We will now consider the issue of whether the trail court erred in holding that federal
law did not prevent disclosure of the Documents. The essence of the trial court’s holding
was that the Hospital proved that federal law protects the identity of persons making
disclosures under the “Disclosure Program” but that it did not show any basis in federal law
for protecting the content of the disclosures. On appeal the Hospital is unable to point to any
federal statute or regulation that explicitly makes the Documents confidential. By the proof
in this case, the CIA is the document that controls the relationship between the Hospital and
the federal government, whose face is the OIG. The OIG persuaded the Hospital, on threat
of excluding it from participation in Medicare and Medicaid programs, to execute the CIA.
The CIA is essentially a form document whose terms are dictated by the OIG. The written
terms of the CIA constitute the full and complete agreement between the Hospital and the
OIG. The disclosure program, the Compliance Committee, the Compliance Officer, and the
Documents, are all a product of the CIA. Any claim to protection of the Documents from
public disclosure under federal law thus stands or falls on the terms of the CIA.

The CIA belies the Hospital’s position that the program embodied in the CIA will not
work without a broad veil of secrecy. The term “confidential” is only used three times in the
39-page CIA. The first use of the term pertains to the Hospital’s obligation to establish a
written code of conduct which sets forth the right of individuals to disclose illegal or
questionable conduct and the Hospital’s “commitment to nonretaliation and to maintain, as
appropriate, confidentiality and anonymity with respect to such disclosures.” The second use
of the term is much like the first in that it affords protection to persons making disclosures:
“The Disclosure Program shall emphasize a nonretribution, nonretaliation policy, and shall
include a reporting mechanism for anonymous communications for which appropriate
confidentiality shall be maintained.” The final use of the term gives the Hospital the right
to mark documents that it submits to the OIG as “trade secrets, or information that is
commercial or financial and privileged or confidential . . . .” If the Hospital makes the
appropriate designation, then the OIG will “notify Erlanger prior to any release” of
documents so designated. Our review of the record confirms the trial court’s finding, a
telling one at that, that the Hospital did not designate any of the Documents submitted to the
OIG as confidential until after the Petitioner requested them. The court stated that “[f]ailure
to designate any documents provided to the OIG as confidential under the FOIA weakens the
Hospital’s claim that the documents requested by the [P]etitioner are confidential under
federal law.”

The Hospital relies upon Hersh & Hersh v. U.S. Dep’t of Health & Human Serv’s,
No. C 06-4234 PJH, 2008 WL 901539 (N.D. Cal., filed March 31, 2008), for the proposition
that the Documents must be treated as confidential. Hersh did recognize that material is

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confidential “for purposes of FOIA if disclosure of the information is likely to . . . impair the
Government’s ability to obtain necessary information in the future.” Id. at *5 (citing GC
Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109,1112 (9th Cir. 1994), and National
Parks v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)). Hersch applied the stated rule to the
context of a FOIA request for documents submitted to the OIG by a hospital operating under
a corporate integrity agreement with the OIG. The trial court in Hersch concluded that
“disclosure of [the hospital’s] documents here would impair the government’s ability to
secure voluntary execution of [corporate integrity agreements] in the future.” Id. at 6. The
two witnesses who testified for the Hospital stated an opinion that disclosure of the
Documents would hamper the OIG’s ability to secure voluntary execution of similar
agreements.

There is a critical difference between the present case and Hersch. The person in
Hersch who submitted the hospital’s documents to the OIG “expressly notified OIG that the
documents submitted were confidential and subject to exemption under FOIA.” 2008 WL
901539 at *6. One of Erlanger’s witnesses in the present case testified that CIAs contain
standardized language, much of which he authored. The language in the CIA before us
expressly conditions Erlanger’s right to expect FOIA protection for a document upon its
marking the document as confidential when it is submitted:

Consistent with HHS’s FOIA procedures, set forth in 45 C.F.R.
Part 5, OIG shall make a reasonable effort to notify Erlanger
prior to any release by OIG of information submitted by
Erlanger pursuant to its obligations under this CIA and
identified upon submission by Erlanger as trade secrets, or
information that is commercial or financial and privileged or
confidential, under the FOIA rules.

The Hospital’s representative admitted that she did not mark any documents submitted to the
OIG as confidential until after the Petitioner filed his petition. It cannot be said that the
failure is inadvertent as the Hospital’s representative testified that, contrary to the language
of the CIA, the claim of privilege can be made any time prior to the disclosure by the OIG.
The trial court understood and discussed the distinction between the present case and Hersch.
As we see it, the outcome in this case will not have the chilling effect nationwide that the
Hospital asserts because other hospitals can avoid the result in this case by carefully reading
its CIA and asserting any claims of confidentiality contemporaneously with its submissions
to the OIG. Accordingly, we hold there was no error in the trial court’s holding that federal
law does not protect the Documents from disclosure.

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 C.

The Petitioner raises two issues of his own. He argues that the trial court erred in
admitting the testimony of attorney Howard Young because Young offered only inadmissible
legal opinions and conclusions. The trial court held in favor of the Petitioner despite the
testimony of Young, and we have affirmed the trial court in its holding that the Documents
are not privileged. Thus, even if the trial court erred, the error was harmless. Tenn. R. App.
P. 36(b). We will not address the merits of the issue.

D.

The Petitioner also raises the issue of whether the trial court erred in refusing to award
his reasonable attorney’s fees and costs incurred in securing the documents. The legal basis
for an award of attorney fees is Tenn. Code Ann. § 10-7-505(g) which states:

If the court finds that the governmental entity, or agent thereof,
refusing to disclose a record, knew that such record was public
and willfully refused to disclose it, such court may, in its
discretion, assess all reasonable costs involved in obtaining the
records, including reasonable attorneys’ fees, against the
nondisclosing governmental entity.

Since the trial court is given discretion, we review for an abuse of discretion. Henderson v.
City of Chattanooga, 133 S.W.3d 192, 215-16 (Tenn. Ct. App. 2003). Not every wrongful
withholding of records will justify an award of attorney’s fees; the statute contemplates
conduct rising to the level of “wrong because of a dishonest purpose.” Id. at 216. Even
though we have held that the Hospital must produce the Documents, we cannot say that it
was totally without a legitimate purpose or arguable law and facts to support its opposition.
There was no abuse of discretion by the trial court in denying the Petitioner’s request for
attorney’s fees.

V.

The judgment of the trial court is affirmed in all respects. Costs on appeal are taxed
to the appellant, Chattanooga-Hamilton County Hospital Authority. This case is remanded,
pursuant to applicable law, for such further proceedings as are necessary.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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