Category Archives: Tennessee Public Records Act

Metro’s Public Records Scandal: The Mayor’s Illicit Scheme to Hide Records of Her Administration’s Efforts to Close Nashville General Hospital

By Daniel A. Horwitz:

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).

Law Enforcement Investigative Files Are Not Public Records, Holds Tennessee Supreme Court

By Daniel Horwitz:

[Disclosure:  The author filed an amicus curiae brief in support of the victim in this case on behalf of four organizations committed to preventing domestic and sexual violence.  The author’s brief is accessible here.]

In one of the most eagerly anticipated and hotly contested decisions in recent memory, the Tennessee Supreme Court has ruled 4-1 that the Nashville Police Department’s investigative records concerning the Vanderbilt rape case are not subject to disclosure under the Tennessee Public Records Act.  The Court’s ruling comes approximately ten months after the case’s closely-watched oral argument, which pitted a vast media coalition headlined by The Tennessean against Metro government, the Tennessee Attorney General’s Office, and the alleged victim in the case, who intervened to protect her privacy under the pseudonym “Jane Doe.”

The lawsuit arose out of a public records request filed by The Tennessean in October of 2013, which sought access to records involving an alleged rape at Vanderbilt University that resulted in the arrest of four Vanderbilt football players.  Among other information, The Tennessean’s public records request sought text messages and videos that had been sent or created by third-party sources, such as then- Vanderbilt football coach James Franklin.

On October 23, 2013, Metro denied The Tennessean’s public records request.  Specifically, Metro contended that the requested records were part of an open criminal investigation and were thus exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(2), which prohibits “discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”  After The Tennessean filed suit in Davidson County Chancery Court seeking access to the requested records, the victim in the case intervened, arguing that her own private records – including a video recording of the alleged rape and her private text messages – were exempt from public disclosure under Tennessee’s victims’ rights laws.  After a full hearing, the trial court ruled that some, but not all, of the requested records were public.

Ultimately, the case reached the Tennessee Supreme Court.  Upon review, four of the Court’s five justices held that the police department’s entire investigative file was exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(1) and 16(b)(1).  The court also clarified that victims need not take any action to protect certain records from public disclosure following a defendant’s conviction.  At least for the time being, however, the full scope of victims’ privacy rights under Tennessee’s victims’ rights provisions remains unclear.

The Tennessee Public Records Act

As a general matter, all governmental records are considered public records under the Tennessee Public Records Act unless they are specifically exempted from disclosure.[1]  When the Tennessee Public Records Act was first adopted in 1957, it only provided for two such exemptions—medical records of patients in state hospitals, and military records involving national and state security.[2]  In the half-century since, however, the Tennessee legislature has systematically added more than forty additional statutory exemptions to the Tennessee Public Records Act.  For example, included among the Act’s restrictions is an exemption that prohibits public disclosure of student educational records and an exemption that blocks public disclosure of inmate emergency transfer plans.[3]

Additionally, the Tennessee Public Records Act has since been amended to include a “catch-all” provision that further restricts disclosure of records that are not specifically exempted by statute.  This provision establishes that requested records are not public if there is any other exemption to disclosure that is “otherwise provided by state law.”[4]  Notably, for purposes of this “catch-all” provision, “state law” has been interpreted to include other statutes, the Tennessee Constitution, Tennessee common law, rules of court, and administrative rules and regulations.[5]

Tennessee Rule of Criminal Procedure 16

The Court’s four-justice majority ruled that the records requested by The Tennessean were barred from disclosure under Tennessee Rule of Criminal Procedure 16.  Rule 16 governs the exchange of information between prosecutors and defense counsel in criminal cases.  Specifically, 16(a)(1) provides that upon request, “the state shall disclose” certain records “to the defendant.”  (16)(b)(1) further clarifies which records are “subject to disclosure,” specifying, for example, that “documents and tangible objects” and “reports of examinations and tests” must be disclosed to the defendant upon request.  Additionally, Rule 16(a)(2) specifies that certain records are not subject to disclosure.  Records that are not subject to disclosure under Rule 16(a)(2) – which embodies what is commonly recognized as a “work-product exemption” – include “documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”

Unlike the Tennessee Public Records Act, however, Rule 16 only governs the exchange of information between the government and a criminal defendant.  As a consequence, the majority ruled that “Rule 16 is the more specific provision and controls the discovery and disclosure of materials in a criminal case to the exclusion of the Public Records Act.”[6]  “Because Rule 16 does not provide for disclosure to a third party of materials subject to discovery between the State and a defendant,” the Court’s majority held, the public “cannot gain access to these materials under the Public Records Act.”[7]

The majority also contended that a contrary conclusion would produce absurd results.  Specifically, the court argued:  “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. . . .  This absurd result was not intended by the Legislature and would have a negative impact on [both] a police department’s ability to investigate criminal activity and a defendant’s ability to obtain a fair trial.”[8]

In dissent, Justice Gary Wade argued that Rule 16 does not provide such a blanket exemption for law enforcement records under the Tennessee Public Records Act.  Specifically, he noted, Rule 16 “is silent as to the dissemination of discovery information to the public,” and “silence in a rule is not affirmative law and is ordinarily irrelevant to the interpretation of the rule.”[9]  Further, he observed, as Justice Stewart once wrote in an opinion for the U.S. Supreme Court:   “In ascertaining the meaning of a [rule], a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.”[10]

Addressing the majority’s distinction between records available to a defendant and records available to the public under Rule 16, Justice Wade also argued that “the majority’s conclusion rests upon . . . a failure to accord proper weight to the public nature of criminal proceedings.”[11]  Citing both the U.S. Constitution and the Tennessee Constitution for the proposition that in all criminal prosecutions, a defendant enjoys a constitutional right to a public trial,[12] he contended that such a distinction was unwarranted.  Accordingly, Justice Wade concluded, “Rule 16 does not prohibit public access to discoverable materials,”[13] and only the explicit restriction contained in Rule 16 – the work-product exemption – should govern.  As a result, Justice Wade held that third-party records that were received by law enforcement should be subject to disclosure under the Tennessee Public Records Act unless the records are exempt from disclosure under Tennessee law’s separate victims’ rights provisions.

Victims’ Rights

Because the majority’s opinion broadly concluded that Tennessee Rule of Criminal Procedure 16 exempts all police records from public disclosure during the course of a criminal prosecution, the majority did not directly address whether some of the requested records would also have been protected from disclosure under Tennessee’s victims’ rights laws.  This separate argument, however – which represented the position advocated by both the victim and the author on behalf of several domestic and sexual violence prevention advocates – was directly adopted by Justice Wade in dissent.  He wrote:

“Both article I, section 35 and section 40-38-102(a)(1), which are designed to insure protections to victims, qualify as ‘state law’ for purposes of the catch-all exception to disclosure under the TPRA.  Exceptions must be recognized pursuant to the catch-all provision when, as here, there is a significant risk that the disclosure of documents will contravene rights guaranteed by provisions in the Tennessee Code and the Tennessee Constitution.

. . . .

[Victims’ records] qualify for protection under the victims’ rights provisions—which . . . apply both during and after the prosecution.”

In this regard, Justice Wade’s opinion mirrors the separate opinion issued by Judge Neal McBrayer in the Tennessee Court of Appeals, who had similarly held that “victim’s rights under Article 1, § 35 of the Tennessee Constitution and Tennessee Code Annotated sections 40-38-101 through 506. . . . constitute ‘state law’ exceptions to the Public Records Act.”[14]  At present, however, whether the four justices representing the Court’s majority will embrace this view in a future case remains unclear.  Given that the only two jurists who have squarely addressed this claim have both ruled that Tennessee’s victims’ rights provisions protect certain private information about victims from public disclosure, though, and given that the majority’s opinion makes multiple overtures to the legislature’s “wise[]” decision to enact exemptions protecting victims’ private records from disclosure,[15] there is strong reason to believe they would.

Read the Tennessee Supreme Court’s majority opinion in Tennessean v. Metro. Gov’t of Nashville here, Justice Wade’s dissent here , and Justice Kirby’s concurrence here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] See, e.g., Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that Tenn.Code Ann. § 10–7–505(d) “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.”).

[2] Act of Mar. 18, 1957, ch. 285, 1957 Tenn. Pub. Acts 932.  See also Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004) (“As originally enacted, the public records statutes excepted only two classes of records from disclosure. These records included the medical records of patients in state hospitals and military records involving the security of the United States or the State of Tennessee.”).

[3] See Tenn. Code Ann. § 10-7-504(a)-(s).

[4] Tenn. Code Ann. § 10-7-503(2)(A) (2012).

[5] See Swift, 159 S.W.3d at 571-72 (“the General Assembly [] amended Tenn.Code Ann. § 10–7–503(a) by replacing the phrase ‘state statute’ with ‘state law.’ The change is significant for two reasons. First, it signaled a return to the General Assembly’s original understanding that statutes were not the sole source of exceptions from the public records statutes’ disclosure requirements. Second, it broadened the permissible sources of exceptions from disclosure to include not only statutes, but also the Constitution of Tennessee, the common law, the rules of court, and administrative rules and regulations because each of these has the force and effect of law in Tennessee.”) (citing Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 148 (Tenn.1993) (Constitution of Tennessee); Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn.2002) (rules of court); Emery v. Southern Ry., 866 S.W.2d 557, 561 (Tenn.Ct.App.1993) (the common law); Kogan v. Tennessee Bd. of Dentistry, No. M2003–00291–COA–R3–CV, 2003 WL 23093863, at *5–6 (Tenn.Ct.App. Dec. 30, 2003) (No Tenn. R.App. P. 11 application filed) (administrative rules and regulations)).

[6] Tennessean v. Metro. Gov’t of Nashville, No. M201400524SCR11CV, 2016 WL 1084422, at *11 (Tenn. Mar. 17, 2016).

[7] Id.

[8] Id. at *10.

[9] Id. at *18 (Wade, J., dissenting) (citing State v. Collier, 411 S.W.3d 886, 897 (Tenn. 2013)).

[10] Id. (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980)).

[11] Id.

[12] U.S. Const. amend. VI; Tenn. Const. art. I, § 9.

[13] Tennessean, 2014 WL 4923162, at *19 (dissenting opinion),

[14] Tennessean v. Metro. Gov’t of Nashville, No. M2014–00524–COA–R3–CV, 2014 WL 4923162, at *6 (Tenn. Ct. App. Sept. 30, 2014) (McBrayer, J., dissenting).

[15] Tennessean, 2016 WL 1084422, at *12.Tennessean, 2016 WL 1084422, at *12.