IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 9, 2009 Session
THOMAS M. GAUTREAUX v. INTERNAL MEDICINE EDUCATION
FOUNDATION, INC.
Appeal from the Chancery Court for Hamilton County
No. 08-0008 Howell N. Peoples, Chancellor
No. E2008-01473-COA-R3-CV - FILED OCTOBER 30, 2009
CHARLES D. SUSANO , JR., J., dissenting.
I respectfully dissent. I adhere to the rationale of my dissent in Fodness v. Newport & Cocke
County Economic Dev. Comm’n, Inc., E2004-01491-COA-R3-CV, 2005 WL 607964 at *10 (Tenn.
Ct. App. E.S., filed March 16, 2005) (Susano, dissenting). In Fodness, I stated the following:
. . . I disagree with the assertion that the public’s access to the
Commission’s records depends upon whether, in the words of the
majority, “[the Commission] is the functional equivalent of a
governmental agency.” I believe this concept of “functional
equivalen[cy],” as promulgated by the Supreme Court in Memphis
Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d
67, 79 (Tenn. 2002), is not material to the issue now before us.
Under Tenn. Code Ann. § 10-7-503(d)(1), the records of the
Commission – which entity is, without dispute, an “association or
nonprofit corporation described in [Tenn. Code Ann.] § 8-44-
102(b)(1)(E)(i)” – “shall be open for inspection as provided in [Tenn.
Code Ann. § 10-7-503(a)].” (Emphasis added). Since the legislature
has specifically addressed § 8-44-102(b)(1)(E)(i) entities in
subsection (d)(1) of § 10-7-503, I do not understand how a Supreme
Court decision regarding the breadth of the general language of
subsection (a) of that statute – “all state, county and municipal
records” – is implicated by the facts in the instant case. The specific
language controls over the general language. See Netherland v.
Hunter, 133 S.W.3d 614, 616 (Tenn. Ct. App. 2003) (“Another rule
of statutory interpretation is that a special statute or a special
provision of a particular statute controls a general provision in
another statute or a general provision in the same statute.”).
I agree with the majority that the last paragraph of subsection (d)(1)
applies to the whole of that subsection. This means that the so-called
audit exception of subsection (d)(1) – upon which the Commission
relies – is applicable to the Commission if it employs one or two
employees. In other words, if the Commission is to block public view
of its records, it must prove that it does not “employ[] more than two
(2) full-time staff members” and otherwise complies with the other
provisions of the audit exception.
(Footnote in original omitted.) In the instant case, the majority correctly recognizes that the
appellant satisfies the “two (2) full-time staff members” exception and the “§ 501(c)(3)” exception
in Tenn. Code Ann. § 10-7-503(d)(1) and (2) respectively. Accordingly, I would hold that the
records in question are not subject to public inspection and would reverse the trial court’s judgment
and enter judgment for the defendant/appellant, Internal Medicine Education Foundation, Inc.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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