This morning’s front-page Tennessean story features a blockbuster scoop from Joey Garrison outlining Metro’s scheme to circumvent public records law by running hospital consulting services through Metro Legal Director Jon Cooper. Garrison’s report details a questionable arrangement between Nashville Mayor Megan Barry’s Administration and “volunteer” hospital consultant Kevin Crumbo, an accountant who specializes in corporate restructuring. According to Garrison, since 2016, Crumbo has provided “hundreds, if not thousands” of hours of “unpaid” consulting services to Metro in furtherance of the Mayor’s recently abandoned efforts to shutter inpatient care at Nashville General, the city’s longstanding safety-net hospital.
Beyond basic questions like what Crumbo—whose accounting firm has a business relationship with Metro—expected to receive in return for his thousands of hours in “free” consulting services, the whiff of scandal arises from the fact that:
“Details of Crumbo’s findings and recommendations about Nashville General remain unclear because his interactions with the city have been kept secret. Despite requests from The Tennessean, Metro won’t release any correspondence Crumbo had with the city.”
The supposed justification for denying the Tennessean’s public records requests is clearly set forth in the article. According to the Barry Administration, Crumbo “reports directly to the Metro law director.” As a result, “city officials cite attorney-client privilege” as a basis for denying the paper access to Crumbo’s reports. For reasons that are readily apparent from Garrison’s article alone, however, Metro’s privilege claim is a sham, and the city is legally obligated to turn over the records that they have thus far insisted upon keeping secret.
To begin, it should go without saying that the government cannot circumvent applicable public records law by running non-legal matters through its legal department and then claiming attorney-client privilege. The Tennessee Supreme Court has expressly held that such a scheme would represent a gross “misuse of [the attorney-client privilege] exception in order to circumvent the scope” of Tennessee’s transparency statutes, and that “any attorney who participates, or allows himself to be used in a manner that would facilitate such a violation, would be in direct violation of the Code of Professional Responsibility and subject to appropriate disciplinary measures.”[1]
Whether the Barry Administration’s privilege claim holds water is subject to a fact-dependent inquiry. As this author explained in a recent law review article, “[a]s a general matter, all governmental records in Tennessee are considered public records under the Tennessee Public Records Act unless the records are specifically exempt from disclosure by law.”[2] Significantly, both the attorney-client privilege and the related work-product doctrine provide such exemptions.[3]
Notably, though, the Tennessee Court of Appeals has cautioned that “[t]he attorney-client privilege is not absolute, nor does it cover all communications between a client and his or her attorney.”[4] Instead, the attorney-client privilege is limited to bona fide relationships between attorneys and their clients regarding actual legal matters. To be protected by the attorney-client privilege, Tennessee law specifically requires that:
“(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”[5]
Based on Garrison’s report, Metro’s privilege claim does not—as Justice Kagan might put it—pass “the laugh test.”[6] In this instance, there are several independent and glaringly obvious problems with the claim, which likely will not last through the week.
First, it is difficult to imagine how Metro Legal Director Jon Cooper could have been “acting as a lawyer” with respect to his receipt of Crumbo’s hospital consulting reports, or how the reports could even theoretically be construed as having been provided for the purpose of securing legal services. We know this, because Garrison specifically quotes the Barry Administration as saying that Crumbo’s reports helped it “identify[ the] ‘financial and budgetary risks’ the hospital poses to the city.”
Rejecting a privilege claim in a similar case, Tennessee’s Court of Appeals held that “[u]nder our exercise of review, the correspondence that is the subject of this litigation does not contain any information of a confidential or secret nature.”[7] “It cannot be said that as a general rule, [attorney-client privilege] applies to all documents written to an attorney or signed by an attorney,” the court noted. “The Rule cannot have such a blanket application.”
Second, because the attorney-client privilege is (unsurprisingly) restricted to communications between attorneys and their clients, the privilege is waived when communications are disclosed to third parties.[8] In this instance, we can also be quite certain that Crumbo’s consulting advice was not limited to Jon Cooper, because the Barry Administration has candidly acknowledged as much. “Barry’s administration has credited Crumbo . . . as key in helping Metro explore ways to improve the hospital’s financial stability,” Garrison’s story reads. “[Crumbo’s] advice led Barry in 2016 to expand the hospital authority board from seven to 11 members,” it adds. “[Representatives] from the hospital were called into a meeting in September by the mayor and Crumbo,” it explains further.
Plainly, then, Crumbo’s communications were not restricted to legal communications between him and the Metro Legal Director. Instead, to the extent that the claim that Crumbo “report[ed] directly to the Metro law director” can even be believed, Crumbo’s reports appear to have been run through the legal department and then given directly to non-lawyer members of Megan Barry’s Administration—including to the Mayor herself.
It is likely, however, that Director Cooper actually intended to invoke the broader work-product doctrine as a basis for withholding the reports at issue, rather than the attorney-client privilege, which quite clearly does not apply. “The [work-product] doctrine, which is not a privilege, permits an attorney ‘to assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.’”[9]
As a general matter, the work-product doctrine permits attorneys wide latitude to hire experts and assemble information in advance of potential litigation. As the Court of Appeals has explained, “[t]he policy underlying the doctrine is that lawyers preparing for litigation should be permitted to assemble information, to separate the relevant facts from the irrelevant, and to use the relevant facts to plan and prepare their strategy without undue and needless interference.”[10] “In order to qualify as work product,” however, “the party seeking protection must establish the following three elements: (1) that the material sought is tangible, (2) that the documents were prepared in anticipation of litigation or trial, and (3) that the documents were prepared by or for legal counsel.”[11]
Unfortunately for the Barry Administration, the work-product doctrine does not apply here, either. For one thing, identifying “financial and budgetary risks” regarding a decidedly non-legal matter places Crumbo’s reports well outside the ambit of the doctrine, which is necessarily limited to documents “prepared in anticipation of litigation or trial.” For another, the work-product doctrine is similarly subject to waiver, and acknowledging the existence of a consultant’s report and discussing its contents with third parties unmistakably waives its protection. As the Court of Appeals explained in a similar case:
“By stating that this report existed and its findings supported the feasibility of the acquisition, the City has, in effect, selectively used the reports in a public relations offensive to convince the City Council and the general public that the acquisition was both economically feasible and beneficial. . . . [A] party may not use a work product to publicly further its cause offensively as a sword, and then assert the benefit of privilege as a shield. Accordingly, we hold that the City has waived the confidentiality of these documents.”[12]
Here, the Barry Administration has publicly disclosed that Crumbo’s reports “assisted Metro in identifying ‘financial and budgetary risks’ the hospital poses to the city.’” In Garrison’s story, Metro Councilmember Tanaka Vercher—who chairs the Metro Council Budget and Finance Committee—also criticizes the contents of Crumbo’s publicly-withheld reports, stating that they “only looked at the ‘bottom-line numbers’ when a ‘holistic’ review is needed.” Further, to support the Administration’s public relations efforts, Director Cooper has “characterized the criticism of Crumbo’s work as inaccurate.” Despite disclosing their subject matter and defending their contents, however (which third parties appear to be aware of), Barry’s Administration nonetheless refuses to disclose Crumbo’s reports to the public—thereby using the privilege, as the Court of Appeals has characterized it, improperly as both a “sword” and “shield.”
In sum: the Barry Administration’s privilege claims are laughable. The attorney-client privilege and work product doctrines cannot be used to shield non-legal government documents from disclosure under applicable public records law. Further, even if they applied, their protections are waived when privileged communications are disclosed to third parties or to shape a media narrative. Metro’s illicit scheme to skirt applicable public records law by having a hospital consultant report directly to the Metro Legal Director is, quite simply, a sham to avoid its obligations under the Tennessee Public Records Act. Neither the press nor the public should stand for it.
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[1] Smith Cty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 335 (Tenn. 1984).
[2] Daniel A. Horwitz, Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following Tennessean v. Metro, 11 Tenn. J.L. & Pol’y 129, 131 (2016) (citing Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that section 10-7-505(d) of the Tennessee Code “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records”)).
[3] The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *9 (Tenn. Ct. App. Apr. 27, 2007) (holding that the attorney-client privilege applies “with equal force to a government official who seeks legal advice in the performance of his duties,” and holding further that the work-product doctrine similarly exempts records from disclosure under the Tennessee Public Records Act).
[4] Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App. 2002).
[5] Armouth Int’l, Inc. v. Dollar Gen. Corp., No. 3:14-0567, 2015 WL 6696367, at *2 (M.D. Tenn. Nov. 2, 2015).
[6] Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2239 (2015).
[7] Coats v. Smyrna/Rutherford Cty. Airport Auth., No. M2000-00234-COA-R3CV, 2001 WL 1589117, at *7 (Tenn. Ct. App. Dec. 13, 2001)
[8] Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992) (“the presence of a third party at the time of the communication or the client’s expectation that the substance of the communication is to be disclosed to others does not bring the privilege into play.”). See also Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012).
[9] State ex rel. Flowers v. Tennessee Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006)
[10] Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004)
[11] The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *10 (Tenn. Ct. App. Apr. 27, 2007)
[12] Arnold v. City of Chattanooga, 19 S.W.3d 779, 788 (Tenn. Ct. App. 1999).