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

08/16/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 4, 2019 Session

SCRIPPS MEDIA, INC., ET AL. v. TENNESSEE DEPARTMENT OF
MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES, ET AL.

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

No. M2018-02011-COA-R3-CV

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

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.
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.

OPINION

Background

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
-2-
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:
-3-
 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

1
The TBI is, of course, by its very nature an investigative agency, but the TBI records included in the
Requests were operational, non-investigative records.
-4-
 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.
Petitioners timely appealed to this Court.

Discussion

Although not stated exactly as such, Petitioners raise the following issues on
appeal: 1) whether the Trial Court erred in holding that state officials properly denied
access to non-investigative public records simply because such records subsequently
became relevant to a criminal investigation; and 2) whether Petitioners should be
awarded attorney’s fees for the denial of access. The State raises two separate issues on
appeal, which we restate as follows: 1) whether Scripps lacks standing; and 2) whether
this appeal should be dismissed as moot. Numerous amici curiae organizations submitted
a brief in support of Petitioners.

We first address the State’s issues, beginning with whether Scripps lacks standing.
Petitioners concede Scripps is not a citizen of Tennessee. The State argues that Scripps
should be dismissed on that basis. Language from the TPRA bolsters the State’s position.
Tenn. Code Ann. § 10-7-503(a)(2)(A) provides: “All 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) (Supp. 2018) (emphasis added). When access to such non-exempt records
is denied, “[a]ny citizen of Tennessee . . . shall be entitled to petition for access to any
such record and to obtain judicial review of the actions taken to deny the access.” Tenn.
Code Ann. § 10-7-505(a) (2012) (emphasis added).

The State is correct in that Scripps, as a non-citizen of Tennessee, could not avail
itself of the TPRA to petition for access to public records. We, therefore, dismiss Scripps
from the appeal. Mr. Williams, however, undisputedly is a citizen of Tennessee, and
could properly bring this action. The appeal thus proceeds with Mr. Williams as the sole
remaining appellant.

We next address the State’s second separate issue of whether this appeal should be
dismissed as moot. Regarding justiciability and mootness, our Supreme Court has stated:

-5-
 This Court must first consider questions pertaining to justiciability
before proceeding to the merits of any remaining claims. See UT Med.
Grp., Inc. v. Vogt, 235 S.W.3d 110, 119 (Tenn. 2007) (noting that
justiciability is a threshold inquiry). The role of our courts is limited to
deciding issues that qualify as justiciable, meaning issues that place some
real interest in dispute, Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827,
838 (Tenn. 2008), and are not merely “theoretical or abstract,” Norma Faye
Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203
(Tenn. 2009). A justiciable issue is one that gives rise to “a genuine,
existing controversy requiring the adjudication of presently existing rights.”
Vogt, 235 S.W.3d at 119. Justiciability encompasses several distinct
doctrines, two of which are at issue in this appeal—mootness and standing.

1. Mootness

To be justiciable, an issue must be cognizable not only at the
inception of the litigation but also throughout its pendency. Norma Faye
Pyles Lynch Family Purpose LLC, 301 S.W.3d at 203–04. An issue
becomes moot if an event occurring after the commencement of the case
extinguishes the legal controversy attached to the issue, Lufkin v. Bd. of
Prof’l Responsibility, 336 S.W.3d 223, 226 (Tenn. 2011), or otherwise
prevents the prevailing party from receiving meaningful relief in the event
of a favorable judgment, see Knott v. Stewart Cnty., 185 Tenn. 623, 207
S.W.2d 337, 338 (1948); Cnty. of Shelby v. McWherter, 936 S.W.2d 923,
931 (Tenn. Ct. App. 1996). This Court has recognized a limited number of
exceptional circumstances that make it appropriate to address the merits of
an issue notwithstanding its ostensible mootness: (1) when the issue is of
great public importance or affects the administration of justice; (2) when
the challenged conduct is capable of repetition and evades judicial review;
(3) when the primary dispute is moot but collateral consequences persist;
and (4) when a litigant has voluntarily ceased the challenged conduct.
Lufkin, 336 S.W.3d at 226 n. 5 (citing Norma Faye Pyles Lynch Family
Purpose LLC, 301 S.W.3d at 204).

City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013). “Determining whether a
case is moot is a question of law.” Alliance for Native Am. Indian Rights in Tennessee,
Inc. v. Nicely, 182 S.W.3d 333, 338-39 (Tenn. Ct. App. 2005).

The State disclosed the requested records before the petition was heard below. In
point of fact, the case is moot. The question now is whether an exception to the mootness
doctrine applies. The legal issue presented, whether otherwise accessible public records
-6-
cease to be accessible upon the initiation of a criminal investigation, goes to the core of
the TPRA. It concerns governmental transparency and the ability of Tennessee citizens
to access information related to the workings of their public officials. Although the State
points out that there is no constitutional right to examine public records, the issue clearly
is one of great public importance.

With regard to the public interest exception, our Supreme Court has provided
further guidance, stating:

[U]nder “exceptional circumstances where the public interest clearly
appears,” Dockery v. Dockery, 559 S.W.2d 952, 955 (Tenn. Ct. App. 1977),
the appellate courts may exercise their judgment and discretion to address
issues of great importance to the public and the administration of justice.
State v. Rodgers, 235 S.W.3d at 97. To guide their discretion, the courts
should first address the following threshold considerations: (1) the public
interest exception should not be invoked in cases affecting only private
rights and claims personal to the parties; (2) the public interest exception
should be invoked only with regard to “issues of great importance to the
public and the administration of justice”; (3) the public interest exception
should not be invoked if the issue is unlikely to arise in the future; and (4)
the public interest exception should not be invoked if the record is
inadequate or if the issue has not been effectively addressed in the earlier
proceedings.

Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 210
(Tenn. 2009) (footnotes omitted). This Court has addressed the “ ‘capable of repetition
yet evading review’ ” exception and explained:

The courts invoke the “capable of repetition yet evading review”
exception to the mootness doctrine only in exceptional cases. Parties
requesting a court to invoke the exception must demonstrate (1) a
reasonable expectation that the official acts that provoked the litigation will
occur again, (2) a risk that effective judicial remedies cannot be provided in
the event that the official acts reoccur, and (3) that the same complaining
party will be prejudiced by the official act when it reoccurs. A mere
theoretical possibility that an act might reoccur is not sufficient to invoke
the “capable of repetition yet evading review” exception. Rather, “there
must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the
same controversy will recur involving the same complaining party.”
Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184, 71 L.Ed.2d 353

-7-
 (1982); 1 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON
CONSTITUTIONAL LAW § 2.13, at 37 (3d ed. Supp. 2005).

Alliance for Native Am. Indian Rights in Tennessee, Inc., 182 S.W.3d at 339-40
(footnotes omitted).

Upon our review of all the relevant factors, we believe the issue presented in this
case warrants resolution notwithstanding its mootness. Tennessee citizens, including
journalists, will continue to scrutinize the government. There are bound to be similar
occurrences in the future. In the instant case, the investigation ended fairly quickly and
the records were produced. One can well visualize a situation involving a protracted
investigation that goes on far longer. Rather than keep both Tennessee citizens and the
State in confusion as to the state of the law, it is preferable to tackle this issue now. The
question presented is straightforward and amenable to resolution. We find that the public
interest exception to the mootness doctrine applies. We proceed to address Mr.
Williams’ issues.

We now address whether the Trial Court erred in holding that state officials
properly denied access to non-investigative public records simply because such records
subsequently became relevant to a criminal investigation. The State argues that our
Supreme Court has made it clear that the initiation of a criminal investigation renders
public records relevant to that investigation exempt from disclosure even if they had a
non-investigative origin and otherwise would be perfectly accessible. Two opinions by
our Supreme Court shed considerable light on the issue. In Appman v. Worthington, 746
S.W.2d 165 (Tenn. 1987), our Supreme Court determined that materials relevant to an
ongoing prosecution were exempt from disclosure. The Appman Court stated, in part:

Rule 16 provides for the disclosure and inspection of categories of
evidence in the possession of the state or in the possession of the defendant.
However, the disclosure and inspection granted by the rule “does not
authorize the discovery or inspection of reports, memoranda, or other
internal state documents made by . . . state agents or law enforcement
officers in connection with the investigation or prosecution of the case, . . .”
Rule 16(a)(2) of the Rules of Criminal Procedure. This exception to
disclosure and inspection does not apply to investigative files in possession
of state agents or law enforcement officers, where the files have been
closed and are not relevant to any pending or contemplated criminal action,
but does apply where the files are open and are relevant to pending or
contemplated criminal action. See Memphis Publishing Company v. Holt,
710 S.W.2d 513 (Tenn. 1986). See also State v. Goodman, 643 S.W.2d 375
(Tenn. Crim. App. 1982), which holds that a fiber and hair analysis report
-8-
 by an F.B.I. agent was, prior to delivery of the report to the district attorney
general, “within the possession, custody or control of the State” for the
purposes of Rule 16(a)(1)(D), T.R.Cr.P.

The memoranda, documents and records sought to be inspected by
appellees in this case are the results of the investigation by Internal Affairs
of the Department of Correction into the murder of Carl Estep, an inmate in
a correctional facility operated by the state. Several inmates of the facility,
including the petitioner Nicholas Todd Sutton, were indicted for the murder
of Mr. Estep. Petitioner, David W. Stufflestreet, was indicted as an
“accessory after the fact.” The materials sought by appellees are relevant to
the prosecution of the petitioners and other inmates charged with offenses
arising out of the murder of Carl Estep. These prosecutions have not yet
been terminated. It necessarily follows under Rule 16(a)(2) that access to
the materials in the possession of Sergeant Worthington are not subject to
inspection by appellees, who are counsel for the indicted petitioner-
inmates.

Appman, 746 S.W.2d at 166-67.

In more recent times, our Supreme Court addressed a different scenario in
Tennessean. The initial public records request in Tennessean was as follows:

Brian Haas, a reporter for Nashville newspaper The Tennessean, made a
public records request to the Metro Police, asking to inspect any records
regarding the alleged rape on the Vanderbilt University campus in which
Vandenburg, Banks, Batey, McKenzie, and Boyd were charged. The
request specifically included any text messages received or sent and videos
provided and/or prepared by any third party sources.

Tennessean, 485 S.W.3d at 860. The Tennessean Court went on to hold that the records
were exempt from disclosure:

[T]he Legislature provided for a general exception to the Public Records
Act, based on state law. Tennessee Code Annotated section 10-7-
503(a)(2)(A) provides that governmental records shall be open for
inspection and that the right of inspection shall not be denied “unless
otherwise provided by state law.” “State law” includes statutes, the
Tennessee Constitution, the common law, rules of court, and administrative
rules and regulations. Swift, 159 S.W.3d at 571-72 (citing Tenn. Small Sch.
Sys. v. McWherter, 851 S.W.2d 139, 148 (Tenn. 1993); Frye v. Blue Ridge
-9-
Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn. 2002); Emery v. S. Ry.,
866 S.W.2d 557, 561 (Tenn. Ct. App. 1993); Kogan v. Tenn. Bd. of
Dentistry, No. M2003-00291-COA-R3-CV, 2003 WL 23093863, at *5-6
(Tenn. Ct. App. Dec. 30, 2003)). The Tennessee Rules of Criminal
Procedure, including Rule 16, are “state law” and are encompassed within
this exception. Ballard, 924 S.W.2d at 662.

***

In this case, we must determine whether the Public Records Act
applies to allow public access to investigative records that arise out of and
are part of a criminal investigation resulting in a pending prosecution, are
not the work product of law enforcement under Rule 16(a)(2), were
gathered by law enforcement from other sources in their investigation of
the case, and are requested by entities that are not parties to the pending
criminal case.

We hold that Metro is not required to disclose the requested
investigative records because the records come within the Public Records
Act state law exception. As we held in Appman and again noted in Ballard,
the Rules of Criminal Procedure constitute state law exceptions to the
Public Records Act. Rule 16, as state law, controls the release of these
records and provides for access to these records only to the parties to the
criminal case—the State and the defendant. There is no provision in Rule
16 for release of discovery materials to the public. This case raises the
same concerns that counseled in favor of our remand to the trial court in
Schneider—the “harmful and irreversible consequences [that] could
potentially result from disclosing files that are involved in a pending
criminal investigation.” Schneider, 226 S.W.3d at 345-46. As one recent
article notes:

The pretrial criminal discovery process involves the
reciprocal exchange of materials that the prosecution will use
in attempting to secure a conviction and the information the
defense will use in attempting to achieve an acquittal. The
material exchanged includes information that may or may not
eventually be submitted as evidence at trial or as part of some
other adjudicative action.

...

-10-
 Because of their inflammatory and sensitive nature, many of
the records made available to the public as a result of the
criminal discovery process would likely implicate the fair
trial rights of a defendant as protected by the Sixth
Amendment to the Constitution and the common law,
statutory, and constitutional privacy interests of any third
parties involved. When made available to a prospective jury
pool, discovery materials could impair a defendant’s ability to
receive a fair trial. Discovery records also often contain
personal information, such as physical descriptions,
addresses, phone numbers, birthdates and social security
numbers of witnesses, investigators, and victims, potentially
implicating the privacy interests of numerous individuals both
directly and indirectly involved in a criminal case.

Brian Pafundi, Public Access to Criminal Discovery Records: A Look
Behind the Curtain of the Criminal Justice System, 21 U. Fla. J.L. & Pub.
Pol’y 227, 232-33 (2010) (footnotes omitted).

Rule 16 of the Tennessee Rules of Criminal Procedure minimizes
these risks by limiting access to discovery materials to the State and the
defendant. If Rule 16 did not function as an exception to the Act, a
defendant would have no reason to seek discovery under Rule 16, but
would file a public records request and obtain the entire police investigative
file, which could include more information than the defendant could obtain
under Rule 16. Or if the media could make a public records request and
obtain the investigative files, then the defendant and potential jurors could
learn about the State’s case against the defendant by reading a newspaper or
watching a television news broadcast. This absurd result was not intended
by the Legislature and would have a negative impact on a police
department’s ability to investigate criminal activity and a defendant’s
ability to obtain a fair trial.

Id. at 865-66, 870-71.

Our Supreme Court elaborated further upon its rationale for finding the records
exempt from disclosure, stating:

Ms. Doe intervened in this action to prevent the release of the police
investigative file and expressed a specific concern over the Petitioners’
request to obtain the video of the alleged assault, a surveillance video that
-11-
 includes her image, and any photographs of her taken during and
immediately after the alleged assault. Our ruling today protects Ms. Doe’s
privacy concerns by shielding all of the investigative records from
disclosure during the pendency of the criminal proceedings and any
collateral challenges to any convictions.2 At the conclusion of the criminal
proceedings, Tennessee Code Annotated section 10-7-504(q)(1) grants
protection to Ms. Doe by providing that when a defendant has pleaded
guilty or been convicted of and sentenced for a sexual offense or violent
sexual offense specified in Tennessee Code Annotated section 40-39-202,
the following information is confidential and shall not be disclosed: the
victim’s name; home, work and email addresses; telephone numbers; social
security number; and any photographic or video depiction of the victim.
Ms. Doe may waive these protections, but otherwise is not required to take
any affirmative action. The General Assembly wisely enacted this
exception to the Public Records Act to protect the release of a victim’s
private information and any photographic or video depictions without the
necessity of a court proceeding.

Id. at 873-74 (footnote in original but renumbered).

Our review of the controlling law leads us to disagree with the State. Far from not
mattering, there is a major difference between public records created in the ordinary
course of business and materials found in an investigative file. The former encompasses
the routine documentation of public business conducted by the government, the very sort
of records for which the TPRA was enacted to allow citizens to inspect if they wish. The
latter relates to criminal investigations and prosecutions, giving rise to the myriad
concerns about constitutional rights, privacy, and a fair trial. Our Supreme Court has
made it clear that the TPRA may not be used as a means to bypass normal discovery
rules. Throwing open an investigative file could, in fact, damage the integrity of an
investigation or prosecution, as well as prove injurious to the defendant. Mr. Williams,
however, did not seek the contents of an investigative file. He sought non-investigative
public records that were created in the ordinary course of business and kept by their
respective agencies. Under the TPRA, he was entitled to inspect them. The State
acknowledges that the records here would have been disclosed but for the criminal
investigation and, in fact, actually were disclosed after the criminal investigation ended.
Indeed, these records were accessible from their inception. That they later were relevant
to a criminal investigation did not alter either their nature or where they are kept.

2
The dissenting justice expresses concern for Ms. Doe and her right to be treated with “dignity and
compassion,” Tenn. Code Ann. § 40-38-102a)(1), yet would throw open the police department’s
investigative records for all to see.
-12-
 The State dismisses any distinction between records produced in the ordinary
course of business and those investigative in nature, observing in its brief that our
Supreme Court in Tennessean “specifically excluded from production ‘[b]uilding
surveillance tapes,’ university ‘access card information,’ and ‘[r]eports and emails’
provided by Vanderbilt University, Tennessean, 485 S.W.3d at 861—all of which would
have been created in the ordinary course of business prior to the initiation of the criminal
investigation.” This is true, but beside the point. A private institution such as Vanderbilt
University generally does not have to disclose its records under the TPRA. For
petitioners in Tennessean to access any records prepared by Vanderbilt, they had to
vindicate their theory that materials gathered by law enforcement in its investigation but
prepared by a third party were not exempt from disclosure. Our Supreme Court rejected
that argument. Here, Mr. Williams did not need to and did not probe into an investigative
file at all. The records he requested were created and kept by their respective State
agencies in non-investigative files. It was the State that went out of its way to cloak
records that otherwise were accessible.

Under the State’s position, even public records accessible via the TPRA for years
prior may abruptly become exempt from disclosure, an astonishing proposition.
Presumably, the State would hope that no Tennessee citizen had bothered to investigate
the records before it became interested in them lest they possibly be disseminated. That
appears to be the State’s logic, in any case. The State argues that public records created
in the routine course of business stop being accessible when they become relevant to a
criminal investigation and can then be withheld until the investigation ends, or perhaps
beyond. That is not the holding of Tennessean. The State’s position goes well beyond
Tennessean, wherein our Supreme Court sought to protect the contents of an active
investigative file from disclosure under the TPRA regardless of the source of the
material. If routinely made public records become relevant to a criminal investigation,
then that is incidental to their original purpose. Prosecutors may use already publicly
available information as part of their case but that information does not cease to be
public. The records at issue could have been accessed by Tennessee citizens all along,
and should have been disclosed by the State at the outset upon request.

We hold that public records created in the ordinary course of business, which are
non-investigative in nature, and which are otherwise accessible by Tennessee citizens
under the TPRA, do not subsequently become exempt from disclosure because of the
initiation of a criminal investigation in which those records become relevant. We reverse
the judgment of the Trial Court as to this issue.

The final issue we address is whether Mr. Williams should be awarded attorney’s
fees for the denial of access. With respect to attorney’s fees, the TPRA provides:

-13-
 (g) 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 record, including reasonable attorneys’ fees,
against the nondisclosing governmental entity. In determining whether the
action was willful, the court may consider any guidance provided to the
records custodian by the office of open records counsel as created in title 8,
chapter 4.

Tenn. Code Ann. § 10-7-505(g) (2012). As to what willfulness consists of for purposes
of this statute, this Court has stated: “To the extent that the determination of willfulness
under the statute is a ‘bad faith’ inquiry, that inquiry should focus on whether there is an
absence of good faith with respect to the legal position a municipality relies on in support
of its refusal of records.” Friedmann v. Marshall County, TN, 471 S.W.3d 427, 438
(Tenn. Ct. App. 2015). Our Supreme Court has instructed that “in assessing willfulness,
Tennessee courts must not impute to a governmental entity the ‘duty to foretell an
uncertain juridical future.’” Schneider v. City of Jackson, 226 S.W.3d 332, 346 (Tenn.
2007) (quoting Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 689 (Tenn.
1994)).

We understand how the State, under a fair reading of the law, could have arrived
at its view that the records here were exempt from disclosure. In fact, the Trial Court
did just that. A reasonable mind could interpret from the leading cases a kind of blanket
exemption for public records relevant to criminal investigations. The State had a tenable,
if, in the end, erroneous, basis for acting as it did. We do not find the State’s refusal to
disclose the records when initially asked “willful” for purposes of Tenn. Code Ann. § 10-
7-505(g). We affirm the Trial Court as to its denial of attorney’s fees.

Conclusion

The judgment of the Trial Court is affirmed, in part, and reversed, in part, and this
cause is remanded to the Trial Court for collection of the costs below. The costs on
appeal are assessed against the Appellees, the Tennessee Bureau of Investigation and the
Tennessee Department of Mental Health & Substance Abuse Services.

____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

-14-