Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 18, 20121 Session

MARTIN D. “RED” PATTERSON, AS A CITIZEN OF THE STATE OF

TENNESSEE, AND AS BUSINESS MANAGER OF THE

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 369,

ET AL. v. THE CONVENTION CENTER AUTHORITY OF THE

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON

COUNTY

Direct Appeal from the Chancery Court for Davidson County

No. 11-1565-II Carol L. McCoy, Chancellor

No. M2012-00341-COA-R3-CV - Filed January 17, 2013

Respondent Convention Center Authority appeals the trial court’s determination that the residential

addresses of employees of third-party contractors contained in payroll records submitted by the

contractors to the Convention Center Authority are not exempt from disclosure under the Tennessee

Public Records Act. Petitioners cross-appeal the trial court’s denial of their request for attorney’s

fees and costs. We affirm the trial court’s judgment.

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

Remanded

DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and

J. STEVEN STAFFORD , J., joined.

Stephen J. Zralek and Charles Robert Bone, Nashville, Tennessee, for the appellant, The Convention

Center Authority of the Metropolitan Government of Nashville and Davidson County.

Deborah Godwin, Memphis, Tennessee, for the appellees, Martin D. “Red” Patterson and Wayne

Wells.

1

After review of the record and the arguments advanced by the parties, we provided the parties an

opportunity to file supplemental briefs to address the extent to which the provisions of the Prevailing Wage

Act contained in Title 12, chapter 4 of the Tennessee Code are made applicable to the Convention Center

Authority by Tennessee Code Annotated § 7-4-205, and the extent to which subchapter 414 of the Prevailing

Wage Act exempts payroll records from disclosure. Supplemental briefing was completed on December 12,

2012.

OPINION

This dispute requires us to determine whether the residential addresses of employees of third-

party contractors contained in certified payroll records maintained by Respondent Convention Center

Authority of the Metropolitan Government of Nashville and Davidson County (“the CCA”), a non-

profit corporation organized under a private act of the General Assembly, are exempt from disclosure

under the Tennessee Public Records Act (“the TPRA” or “the Act”) as codified at Tennessee Code

Annotated § 10-7-101, et seq. This appeal arises from a petition for access to municipal records filed

pursuant to the TPRA by Martin D. “Red” Patterson (Mr. Patterson), as a citizen of the State of

Tennessee and Business Manager of the International Union of Operating Engineers Local 369, and

Wayne Wells (Mr. Wells), as a citizen of the State of Tennessee and Assistant Business Manager

of the International Union of Operating Engineers Local 369 (collectively, “Petitioners”) in the

Chancery Court of Davidson County on November 15, 2011. In their petition, Petitioners asserted

that they had requested access to the certified payroll records submitted to the CCA by contractors

working on construction of the Music City Center (“the convention center”) in Nashville for the

purposes of investigating whether contractors constructing the convention center were paying wages

at the rates required by law and “living up to commitments to hire employees from the local

workforce.” Petitioners asserted that the CCA failed to produce the payroll records in their complete

form where it redacted the home addresses and social security numbers of the employees in violation

of the TPRA. Petitioners further asserted that the CCA charged Petitioners an unreasonable fee for

the redaction and preparation of documents. Petitioners prayed for a declaratory judgment that the

requested records are public records under the TPRA, and that denial of the records constitutes a

violation of the Act. They also prayed for reasonable costs and attorney’s fees.

On November 23, 2011, the trial court issued an order to show cause why the CCA should

not be required to produce the municipal documents. The CCA responded on December 12, 2011,

asserting that Petitioners had made approximately 14 open records requests to the CCA in 2011,

including quarterly requests for copies of the certified payroll. The CCA asserted that it had

responded in good faith, producing thousands of pages of the certified payroll and redacting the

employees’ social security numbers and home addresses in accordance with laws to protect the

employees’ Constitutional privacy rights and to guard against identity theft. The CCA relied on

United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994),

and federal rules promulgated to protect worker’s home addresses and social security numbers from

disclosure in support of its assertion that it did not wrongfully redact information from the records

disclosed to Petitioners. The CCA further asserted that it had provided all documentation necessary

to demonstrate compliance with the Prevailing Wages Act, and that it had “offered to provide

information summarizing the percentages of workers hired at the local level while redacting home

addresses to protect individuals’ privacy.” It submitted that it had acted in good faith to

accommodate Petitioners’ request. The CCA stated that it had sought guidance from the Tennessee

Office of Open Records Counsel, which determined that it could not “say with certainty that the

Authority is permitted to disclose employees’ names and addresses contained with the certified

payroll records of third-party subcontractors working on the Music City Center.” The CCA further

submitted that Petitioners’ assertion that they requested the documents in order to assure compliance

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with the Prevailing Wage Act was the only relevant question before the trial court where it was

“rooted in law,” whereas the CCA’s commitment to “maximize local participation” was a “project

goal.” The CCA relied on case-law from other jurisdictions in support of the proposition that

disclosure of personal information, including employees’ home addresses, is prohibited by individual

privacy rights. The CCA asserted that the home addresses and social security numbers contained

in payroll records of third-party contractors are not public information; that they comprise private

information; and that courts from other jurisdictions and the United States Supreme Court have

recognized that the threat of harassment and identity theft outweigh any public interest in such

information.

On December 13, 2011, the CCA answered the petition, asserting that it had provided

Petitioners with the documents requested and that it had redacted employees’ home addresses and

security numbers as required by law. The CCA further asserted that the costs charged to Petitioners

for redaction of information would have been incurred regardless of whether employees’ home

addresses were properly redacted because employees’ social security numbers were properly

redacted. It denied that Petitioners were entitled to attorney’s fees and costs, and prayed for an award

of costs pursuant to Tennessee Rules of Civil Procedure 54.

Following a hearing on December 19, 2011, the trial court granted Petitioners’ petition and

ordered the CCA to make the certified payroll records for the period requested by Petitioners

available “in a form unredacted of employee home addresses.” In its memorandum of findings of

fact and conclusions of law, which the trial court incorporated by reference into its final order, the

trial court found that Petitioners “objected to the redaction of the employee addresses, but not the

redaction of the Social Security numbers.” The trial court determined that the CCA had failed to

demonstrate that the employee home addresses were exempt from disclosure under the TPRA or that

they were confidential under any other applicable state or federal law. The trial court also found that

the CCA did not willfully fail to disclose records, and that it had a good faith basis to resist

disclosure of the home address of the contractors’ employees. The trial court accordingly denied

Petitioners’ request for attorney’s fees. The court additionally found that the fees charged by the

CCA for production of records was appropriate where employee social security numbers were

properly redacted. The trial court ordered the CCA to provide the records on or before February 15,

2012. On February 6, 2012, the CCA moved the trial court to certify that substantial legal issues

exist with respect to the matter, and to stay its judgment pending appeal. The trial court granted the

motion by order entered March 9, 2012. The CCA filed a timely notice of appeal.

Issues Presented

The CCA presents the following issues for our review:

I. Did the trial court err in failing to recognize that the Tennessee Public

Records Act (“TPRA”) explicitly requires Appellant to redact home

addresses of employees of third party subcontractors working on the

construction of the Music City Center?

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II. Did the trial court err in failing to recognize that the TPRA implicitly requires

Appellant to redact home addresses of employees of third party

subcontractors working on the construction of the Music City Center?

III. Did the trial court err in disregarding federal law, which treats home

addresses as personal to the individual and entitled to non-disclosure?

Petitioners present the additional issue of whether the trial court erred in denying them their

costs and attorney’s fees.

Standard of Review

The issues presented require us to construe the TPRA to determine whether the residential

addresses of the employees of third-party contractors contained on payroll records submitted to the

CCA are explicitly or implicitly exempt from disclosure under the TPRA, The construction of a

statute and the application of a statute to the facts of a particular case are questions of law. E.g.,

Gautreaux v. Internal Medicine Educ. Found., 336 S.W.3d 526, 531 (Tenn. 2011)(citation omitted).

We review questions of law de novo, with no presumption of correctness for the determination of

the trial court. Id. Where the statutory language is clear and unambiguous, “it is our duty to follow

it.” Id. “Where the statutory language is not ambiguous . . . the plain and ordinary meaning of the

statute must be given effect.” Rogers v. Louisville Land Co., 367 S.W.3d 196, 214 (Tenn.

2012)(quoting In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007)). The courts “‘presume

that the legislature says in a statute what it means and means in a statute what it says there.’” Id.

(quoting Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000) (quoting

BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997))). Thus, where

the statutory language is clear, we apply the plain and normal meaning of the words chosen by the

General Assembly, interpreting the statute so as to effectuate the General Assembly’s intent

“‘without a forced interpretation that would limit or expand the statute’s application.’” State v.

White, 362 S.W.3d 559, 566 (Tenn. 2012) (quoting Eastman Chem. Co. v. Johnson, 151 S.W.3d 503,

507 (Tenn. 2004)). “If the statute is ambiguous, however, we may look to other sources, such as the

broader statutory scheme and the history of the legislation.” Id. (citing In re Estate of Davis, 308

S.W.3d 832, 837 (Tenn. 2010)).

Discussion

The facts relevant to our disposition of this case are undisputed. We begin our examination

of the issues of law presented for our review with an examination of the nature of the records that

are at the center of this dispute. Pursuant to Tennessee Code Annotated § 7-4-205, contractors

entering into a contract for the construction of a new publicly owned convention center are required

to pay all workers not less than the prevailing wage rate that is established for contractors entering

into a contract with the State under Tennessee Code Annotated 12-4-401, et seq., the Prevailing

Wage Act. The Prevailing Wage Act in turn provides:

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(a) It is hereby declared to be the policy of this state that the prevailing wage

rate be determined by defined standards and that such rate be paid workers on all

state construction projects.

(b) Any contractor entering into a state contract for the performance of work

on state construction projects shall pay not less than the prevailing wage rate for all

types and classifications of such work as determined by this part.

Tenn. Code Ann. § 12-4-403. Contractors and subcontractors (collectively, “contractors”) entering

into contracts to construct the convention center accordingly are required to submit to the joint-

venture construction manager of the convention center, Bell/Clark, copies of their weekly payrolls.

The contractors must certify that the payrolls are correct and complete, and that the wage rates paid

to workers equals or exceeds the rates determined by the Tennessee Prevailing Wage Commission

established by the Prevailing Wage Act. The certified payrolls periodically are submitted to the CCA

for further review.

The record before us contains three public records requests filed by the International Union

of Operating Engineers (“the Union”). In December 2010, the Union filed a request for “certified

payroll of contractors using heavy equipment operators” and enumerated several contractors and

subcontractors. Mr. Wells was listed as the contact on the request. In January 2011, the Union filed

a request for the certified payroll of all contractors and subcontractors from “start of job.” Mr. Wells

again was listed as the contact on the request. In correspondence to the Union, the CCA advised Mr.

Patterson that it had “collected, collated, and redacted 4013 pages of certified payroll

documentation,” and that the costs for the records totaled $1,502.00.

In March 2011, the Open Records Council of the Comptroller (“the ORC”) advised the CCA

by written correspondence that the CCA was subject to the TPRA as a “public nonprofit corporation

and a public instrumentality of the Metropolitan government,” and that the certified payroll records

were “public records” under Tennessee Code Annotated § 10-7-503(a)(2)(A). The ORC further

advised that it found nothing in the statutory scheme that made either the employees’ home addresses

or social security numbers confidential. The ORC also advised that the only provision relating to

confidentiality of payroll records is contained in Tennessee Code Annotated § 12-4-414, which

relates to payroll records of contractors entering into construction contracts with the State. After

presenting a review of Tennessee and federal case law, the ORC concluded that it could not state

with certainty whether the CCA was permitted to disclose the employee names and addresses

contained on the payroll records.

In July 2011, the Union and Mr. Patterson filed a request for the certified payroll of all

contractors working on the convention center from January 1, 2010, through December 31, 2010.

In his request, Mr. Patterson requested the payroll records with only names and social security

numbers redacted. The stated purpose of the request was “for a study to see how many Tenn.

Resident[s] [were] working on the [convention center] during this time frame.”

Following a meeting in mid-October 2011, the CCA advised Petitioners by written

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correspondence that it did not believe it was permitted to provide certified payroll that contained the

home addresses of employees of private contractors. It additionally advised Petitioners that

Tennessee no longer requires the reporting of addresses and social security numbers on certified

payroll reports. The CCA further stated that only about half of the reports provided home addresses

or zip codes, and that the payroll records were not the “appropriate tool for determining the location

of this workforce.” It stated that the most recent summary of the 479 workers for whom addresses

were reported, 61.8% were from the Nashville metropolitan area, and 74.1% were from Tennessee.

The CCA stated that an additional 303 workers were employed on the project, for whom no home

addresses or zip codes were provided. The CCA offered to compromise in an effort to avoid

litigation by providing periodic, updated reports verified for accuracy by an independent third party.

Petitioners rejected this offer, and this litigation ensued.

The Tennessee Public Records Act

The TPRA as codified at Tennessee Code Annotated § 10-7-101, et seq., provides citizens

of Tennessee with broad access to records of Tennessee governmental agencies.2 Gautreaux v.

Internal Med. Educ. Found., 336 S.W.3d 526, 529 (Tenn. 2011)(citing Cole v. Campbell, 968

S.W.2d 274, 275 (Tenn. 1998)). It also grants access to records of private entities that have a

relationship so extensive with the government that they are the “‘functional equivalent of a

governmental agency.’” Id. (quoting Memphis Publ’g Co. v. Cherokee Children & Family Servs.,

87 S.W.3d 67, 78-79 (Tenn. 2002); citing Tenn. Code Ann. § 10-7-503(a)(6)(Supp. 2010)). Thus,

governmental agencies may not “escap[e] the requirements of the Act by delegating their duties to

private entities.” Id. (citing id.).

The purpose of the TPRA “is to promote public oversight of governmental activities.” Id.

(citing Cherokee, 87 S.W.3d at 74)). The Act requires disclosure of public records not specifically

exempted from disclosure. Tenn. Code Ann. § 10-7-503(a)(2)(B). The TPRA defines “public

records” or “state record or records” as:

all documents, papers, letters, maps, books, photographs, microfilms, electronic data

processing files and output, films, sound recordings, or other material, regardless of

physical form or characteristics made or received pursuant to law or ordinance or in

connection with the transaction of official business by any governmental agency[.]

Tenn. Code Ann. § 10–7–301(6). It defines a “confidential public record” as:

any public record which has been designated confidential by statute and includes

information or matters or records considered to be privileged and any aspect of which

access by the general public has been generally denied[.]

2

Although this matter was heard by the trial court in 2011, the relevant substantive provisions of the

TPRA contained in the 2012 version of the Act do not differ from those contained in the 2010 and 2011

versions. Thus, we will cite to the 2012 Act for the sake of simplicity here.

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Tenn. Code Ann. § 10-7-301(2). The Act 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)(emphasis added). It further provides:

The custodian of a public record or the custodian’s designee shall promptly make

available for inspection any public record not specifically exempt from disclosure[.]

Tenn. Code Ann. § 10-7-503(a)(2)(B)(emphasis added).

The Tennessee Supreme Court has characterized the TPRA as “an all encompassing

legislative attempt to cover all printed matter created or received by government in its official

capacity.” Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn. 1991)(citing Bd. of Ed. v.

Memphis Publ’g Co., 585 S.W.2d 629, 631 (Tenn. App. 1979)). It has opined that the TPRA’s broad

legislative mandate “require[s] disclosure of government records even when there are significant

countervailing considerations.” Gautreaux v. Internal Medicine Educ. Found., 336 S.W.3d 526, 529

(citing Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994)). The TPRA

requires the courts to construe the statute broadly “so as to give the fullest possible public access to

public records.” Tenn. Code Ann. § 10–7–505(d). Accordingly, there is a “presumption of

openness” under the TPRA, “favoring disclosure of governmental records.” Schneider v. City of

Jackson, 226 S.W.3d 332, 340 (Tenn. 2007) (citing see State v. Cawood, 134 S.W.3d 159, 165

(Tenn. 2004); Tennessean v. Elec. Power Bd., 979 S.W.2d 297, 305 (Tenn. 1998); Arnold v. City of

Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 1999)).

Notwithstanding the presumption of openness, in the interest of public policy the General

Assembly has provided specific explicit exemptions from disclosure contained in the TPRA itself.

It has also “acknowledged and validated both explicit and implicit exceptions from disclosure found

elsewhere in state law.” Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004). In an

action filed for review of the denial of access to a record by a governmental entity, the governmental

entity carries the burden of proof to justify nondisclosure by a preponderance of the evidence.

Schneider, 226 S.W.3d at 339 (citing Tenn. Code Ann. § 10-7-505(c)).

In this case, the CCA asserts the residential addresses contained in the payroll records

submitted by contractors are explicitly exempt from disclosure under the TPRA. It also asserts, in

the alternative, that the addresses are implicitly exempt from disclosure, and that our construction

of the TPRA should by guided by the federal statutes. We turn first to whether the residential

addresses at issue in this case are explicitly exempt from disclosure by the TPRA.

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Explicit Exemption Under the TPRA

The CCA asserts the residential addresses of employees of third-party contractors contained

on the certified payrolls are explicitly exempt from disclosure under subsection 504(f) of the TPRA,

which provides an exemption for certain information pertaining to “any state, county, municipal or

other public employee.” The CCA submits that, if the CCA is properly subject to the TPRA, then

the employees of contractors constructing the convention center must be treated as “any state,

county, municipal or other public employee.” It contends that workers employed to work on public

construction projects fall within the meaning of “other public employee” for the purpose of section

10-7-504(f). It asserts that, even assuming the employees of third-party contractors are not “other

public employees,” the personal privacy rights of public employees must be extended to employees

working on public projects. The CCA contends that the legislative history demonstrates a

presumption that personal information of private employees is precluded from disclosure.

Petitioners, on the other hand, submit that the employees of third-party contractors are not

“public employees.” It further submits that the CCA did not argue that the employees of third-party

contractors are properly considered public employees in the trial court and cannot assert this

argument for the first time on appeal. Petitioners assert that no provision of the TPRA exempts the

residential addresses contained on payroll records submitted to the CCA from disclosure.

We turn first to Petitioners’ assertion that the CCA failed to raise the issue of whether the

home addresses contained in the payroll records were exempt under section 10-7-504(f) where the

workers are properly considered “other employees” under the section. In its December 2011

response in opposition to Petitioners’ petition, the CCA unambiguously relied on section 10-7-504(f)

to assert that the home addresses contained in the payroll records were explicitly exempt from

disclosure. The CCA further stated, “[a]ssuming arguendo that the employees of third-party

contractors and subcontractors working on the construction of the Music City Center, a public

project, are not classified as ‘other public employees,’ the same personal rights to privacy that have

been extended to public employees . . . would also extend to and be of heightened nature for private

employees not employed by a government entity.” We are satisfied that this issue was raised in the

trial court.

We next turn to whether the employees of the contractors working on the convention center

are properly considered “other public employees” for the purposes of the statute. Section 10-7-

504(f)(1) provides:

The following records or information of any state, county, municipal or other public

employee or former employee, or of any law enforcement officer commissioned

pursuant to § 49-7-118, in the possession of a governmental entity or any person in

its capacity as an employer shall be treated as confidential and shall not be open for

inspection by members of the public:

(A) Home telephone and personal cell phone numbers;

(B) Bank account and individual health savings account, retirement account

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and pension account information; provided, that nothing shall limit access to

financial records of a governmental employer that show the amounts and sources of

contributions to the accounts or the amount of pension or retirement benefits

provided to the employee or former employee by the governmental employer;

(C) Social security number;

(D)(i) Residential information, including the street address, city, state and zip

code, for any state employee; and

(ii) Residential street address for any county, municipal or other public

employee;

(E) Driver license information except where driving or operating a vehicle is

part of the employee’s job description or job duties or incidental to the performance

of the employee’s job;

(F) The information listed in subdivisions (f)(1)(A)-(E) of immediate family

members or household members; and

(G) Emergency contact information, except for that information open to

public inspection in accordance with subdivision (f)(1)(D)(ii). 3

We note that the exemption pertaining to home addresses contained in subsection 504(f)(1)(D)

differs depending on whether the employee is a state employee or a county, municipal or other public

employee. Under subsection 504(f)(1)(D)(i), all residential information of state employees,

including the residential street address, city, state and zip code, is exempt from disclosure. However,

under subsection 504(f)(1)(D)(ii), the exemption applicable to the residential addresses of county,

municipal and other public employees includes only residential street addresses. The residential city,

state, and zip code information of county, municipal and other public employees is not exempt from

disclosure. Thus, assuming the employees whose home addresses are at issue in this case may be

considered “other public employees” for the purposes of the subsection, their residential city, state,

and zip code information would not be exempt from disclosure under subsection 504(f). The CCA

asserts the category “other public employee” contained in subsection 504(f) encompasses the

workers constructing the convention center because the convention center is a public building and

the CCA is a governmental entity for the purposes of the Act. Petitioners, on the other hand, assert

the employees are not public employees, but private employees hired and paid by a private employer.

We must agree with Petitioners.

The CCA cites neither statute nor regulation nor case law to support its position that the

workers included on the payroll records of private contractors are properly categorized as “other

public employees.” Rather, it asserts that the workers logically must be considered “public

employees” if the CCA is considered to be an entity subject to the Act. It further asserts that workers

hired by contractors to construct a public building should enjoy privacy rights in their personal

identifying information equal to that of public employees.

We cannot agree that the employees of private contractors are properly considered “public

3

Subsection 504(f)(1)(G) was added by chapter 577 of the 2012 Public Acts.

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employees” merely because they are constructing a public building or because the entity ultimately

responsible for the project is a public entity. The term “public entity” is defined as “[a]

governmental entity, such as a state government or one of its political subdivisions.” Black’s Law

Dictionary, 8th ed. 573 (2004). Taken to its logical extension, the CCA’s contention that the

employees in this case are “public employees” would render any employee working on a construction

project for which a public entity is ultimately responsible, or which is supported by public funds, a

public employee entitled to the benefits and subject to the restrictions thereof.

An employee is “[a] person who works in the service of another person (the employer) under

an express or implied contract of hire, under which the employer has the right to control the details

of work performance.” Black’s Law Dictionary, 8th ed. 564 (2004). An employer is one who

“controls and directs a worker . . . and who pays the worker’s salary or wages.” Black’s Law

Dictionary, 8th ed. 565 (2004). An employer has the right to hire and terminate an individual

employee; to determine the employee’s work schedule; and to control how the work is to be

performed. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). An employer

is responsible for providing workers’ compensation insurance, and for deducting applicable social

security and income taxes. See id. at 587. The CCA performs none of the functions of an employer.

The certified payroll records are not received by the CCA in the capacity of an employer, but in its

capacity as a public entity in order to ensure that the contractors contracted to construct the

convention center are paying their employees at the prevailing wage rate. Additionally, the

contractors who hire the workers constructing the convention center are required to provide health

insurance for all workers performing under the contract. Tenn. Code Ann. § 7-4-205(a). The

workers whose records are at issue in this case are not employees of the CCA, and they do not fall

within the purview of “other public employee” under Tennessee Code Annotated § 10-7-504(f).

The CCA contends that more than 350 exemptions exist for the purposes of disclosure under

the TPRA. It forwards no explicit exemption, however, other than the limited exemption contained

in section 10-7-504(f)(D)(ii) for public employees, that would apply to the certified payroll records

in this case. We accordingly turn next to the CCA’s assertion that the payroll records are implicitly

exempt from disclosure under the TPRA.

Implicit Exemption

The CCA contends that the trial court’s determination that the workers’ social security

numbers are exempt from disclosure implicitly mandates a determination that their home addresses

are likewise exempt. It further argues that, in this age of identity theft, and in light of the exemption

for home addresses found in other sections of the TPRA, the home addresses contained in the payroll

records are implicitly exempt. The CCA argues, “[t]o the extent the trial court relied on implicit

authority within the TPRA in requiring the redaction of social security numbers, the trial court

interpreted the TPRA too narrowly by not also finding the implicit authority requiring redaction of

home addresses.” We agree with the CCA that a gap arguably exists within the TPRA with respect

to a blanket exception for all social security numbers, and urge the General Assembly to consider

this issue. We disagree, however, with the CCA’s assertion that the TPRA contains an implicit

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exception for all residential addresses.

We observe that, contrary to the CCA’s assertion that the trial court found that social security

numbers are excepted from disclosure by the TPRA, the trial court found that Petitioners requested

the certified payroll records with the social security numbers redacted. Accordingly, whether the

employees social security numbers are exempt from disclosure under the Act was not an issue in the

trial court. We additionally observe that, with limited exceptions, the Tennessee Code explicitly

prevents State agencies from disclosing the social security number of any citizen of Tennessee.

Tenn. Code Ann. § 4-4-125. Federal law provides that social security numbers obtained pursuant

to any provision of law enacted on or after October 1, 1990, are confidential and shall not be

disclosed by any officer or employee of a governmental entity. 4 42 U.S.C. § 405(c)(2)(C)(viii). The

CCA obtained the social security numbers of employees hired by contractors constructing the

convention center in order to assure compliance with Tennessee Code Annotated § 7-4-205, which

was enacted in 2007. Whether the explicit exception from disclosure of social security numbers

provided by Tennessee Code Annotated § 4-4-125 is extended to all political subdivisions of the

State, and agencies thereof, must be left to the General Assembly to determine.

The CCA asserts that the TPRA implicitly excepts home addresses contained in payroll

records submitted to the CCA where the Act explicitly excepts residential addresses in some

subsections. The CCA’s argument, as we perceive it, is that an explicit exception for home

addresses in some subsections of the Act implies an exception for home addresses contained in all

public records. Neither our case law nor the statutes support this assertion.

In Tennessean v. Electric Power Board of Nashville, plaintiff newspaper sought a list of

customer names, addresses, and telephone numbers from defendant city electric utility. Tennessean

v. Elec. Power Bd. of Nashville, 979 S.W.2d 297 (Tenn. 1998). The Tennessee Supreme Court held

that the information sought by plaintiff was a public record, and that the utility was required to

disclose the requested information under the TPRA notwithstanding that it did not maintain the

information in the format requested by the plaintiff. Id. at 298. The TPRA currently provides that

the “private records” of a utility shall not be open for inspection. Tenn. Code Ann. § 10-7-

504(a)(20)(B)(2012). Home addresses, however, are not included in the statutory definition of

“private records” for the purpose of the subsection. Tenn. Code Ann. § 10-7-504(a)(20)(A)(iii).

4

42 U.S.C. § 405(c)(2)(C)(viii) provides:

(viii)(I) Social security account numbers and related records that are obtained or maintained

by authorized persons pursuant to any provision of law enacted on or after October 1, 1990,

shall be confidential, and no authorized person shall disclose any such social security

account number or related record. The term “authorized person” includes “an officer or

employee of the United States, an officer or employee of any State, political subdivision of

a State, or agency of a State or political subdivision of a State, and any other person (or

officer or employee thereof), who has or had access to social security account numbers or

related records pursuant to any provision of law enacted on or after October 1, 1990.”

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The Act provides an exception for identifying information “that could reasonably be used to locate

the whereabouts of an individual” that is contained in records maintained by a utility service provider

where the individual has obtained a valid order of protection and where that individual has presented

the order to the utility. Tenn. Code Ann. § 10-7-504(a)(15)(B). Home addresses are included in the

definition of “identifying information” contained in the subsection. Tenn. Code Ann. § 10-7-

504(a)(15)(A)(i). The General Assembly clearly has not chosen to provide a comprehensive

exception for home addresses contained in records maintained by utility service providers since the

supreme court’s holding in Tennessean in 1998. The courts assume that the General Assembly is

aware of the state of the law when drafting or amending statutory provisions. E.g., Purkey v. Am.

Home Assur. Co., 173 S.W.3d 703, 709 (Tenn. 2005). Accordingly, despite the CCA’s assertion that

all home addresses should be exempt from disclosure under the TPRA, the General Assembly has

chosen not to exempt such information notwithstanding the supreme court’s holding in 1998.

Implicit exceptions to the TPRA are those that are found in “other state law.” Tenn. Code

Ann. § 10-7-503(a); Swift v. Campbell, 159 S.W.3d 565, 527 (Tenn. Ct. App. 2005). Disclosure of

public records is required unless it is clear that a record is excepted either explicitly by the Act or

implicitly by application of another state law. Swift, 159 S.W.3d at 527 (citing Memphis Publ’g Co.

v. City of Memphis, 871 S.W.2d at 684). The CCA cites us to no Tennessee law that provides a

blanket exception from disclosure of residential street addresses, and we find none. Moreover, as

discussed above, even if the workers in this case were to be considered “other public employees” for

the purpose of section 10-7-504(f), their residential city, state and zip code information would not

be exempt from disclosure under subsection 504(f)(1)(D)(ii).

As noted above, however, in the ORC’s March 2011 recommendation to the CCA, the ORC

referenced Tennessee Code Annotated § 12-4-414 and stated:

The only provision that I found that relates to the confidentiality of certified payroll

records is specific to contractors who enter into construction contracts with the State

of Tennessee.

As we also noted above, Tennessee Code Annotated § 7-4-205(a) requires the CCA to comply with

the Prevailing Wage Act during the construction of the new convention center. Section 7-4-205

provides:

(a) During the construction of a new publicly owned convention center as

provided in this part, any contractor entering into a contract with the metropolitan

government for the performance of work on the convention center shall pay all

workers performing work under those contracts not less than the prevailing wage rate

for all types and classifications of work for contractors entering into a state contract

pursuant to the Prevailing Wage Act of 1975, compiled in title 12, chapter 4, part 4.

In addition, all such contractors shall provide health insurance coverage for all

workers performing work under the contracts.

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In light of the mandate of section 7-4-205(a) and the ORC’s suggestion that payroll records of

contractors who enter into construction contracts with the State are confidential, we permitted the

parties to supplement their briefs to address the extent to which the provisions of the Prevailing

Wage Act codified in Title 12 impacts construction projects governed by section 7-4-205, and

whether the Prevailing Wage Act provides an implicit exception from disclosure of the information

contained on the payroll records in this case.

In its supplemental brief, the CCA asserts that, read together, Tennessee Code Annotated §§

7-4-205(a) and 12-4-414 stand for the proposition that the General Assembly intended to protect all

payroll records and the personal information contained in them from disclosure. It re-asserts its

argument that the workers whose addresses are at issue in this case must be afforded the same

protections provided to “state, county, municipal or other public employee[s]” under Tennessee Code

Annotated § 10-7-504(f). It additionally cites Section 4.20.100 of the Metro Procurement Code in

support of its assertion that contractors are not required to include workers’ residential addresses on

the certified payroll records submitted to the CCA, and argues that it is therefore not required to

disclose those addresses under the TPRA.

Petitioners, on the other hand, assert in their supplemental brief that section 7-4-205(a) does

not incorporate any exclusion contained in the Prevailing Wage Act, but simply establishes the

standard for the minimum pay rate that a contractor may pay employees working under a contract

with a metropolitan government. Petitioners contend that the reference to the Prevailing Wage Act

in section 7-4-205 does not incorporate the Prevailing Wage Act in its entirety. Petitioners further

contend that the exemption extended by Tennessee Code Annotated § 12-4-414 is not applicable in

this case. Petitioners assert that only payroll records submitted to the Prevailing Wage Commission

for the purpose of establishing the prevailing wage are exempt from disclosure under section 12-4-

414, and that payroll records submitted to the contracting state agency under section 12-4-411 are

not excluded from public inspection. Petitioners reference the ORC’s March 2011 letter to the CCA

in support of their assertion that the General Assembly created an exception only for payroll records

collected by the Prevailing Wage Commission for the purpose of setting the prevailing wage.

In its supplemental reply brief, the CCA asserts that section 7-4-205 explicitly references the

Prevailing Wage Act as a “guidepost” with respect to the payment of wages to workers constructing

the new convention center in Nashville. It submits that subsection 414 of the Prevailing Wage Act,

in turn, explicitly protects payroll records from public disclosure. It argues that Petitioners construe

subsection 414 too narrowly, and that the subsection encompasses not only payroll records submitted

to the prevailing wage commission, but to all payroll records. The CCA reiterates its assertion that

“the TPRA protects everyone’s home addresses from disclosure, whether one is a private employee

or a public employee.”

Tennessee Code Annotated § 12-4-411 provides:

(a) Any person, contractor, firm or corporation who may enter into any state

contract shall furnish to the state agency entering into such contractual agreement any

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necessary forms, papers, payroll copies or any other information that may be required

of any such person, contractor, firm or corporation by the state agency to show

compliance with this part.

(b) Payroll records shall not be destroyed for one (1) year following the

completion of the state construction project.

Section 12-4-414 provides:

All records and documentation provided for in this part, other than payroll records,

shall be made available for public inspection by the commission and the department

of labor and workforce development during normal business hours.

The parties do not address the extent to which the Prevailing Wage Act governs the

procedure followed by governmental entities which must comply with its mandate, and the record

offers no guidance on this matter. The CCA, however, references no authority which would indicate

that payroll records submitted to state agencies by contractors on state construction projects are

confidential. We have held, however, that payroll records maintained by state, county and municipal

agencies are public records for the purpose of the TPRA. Cleveland Newspapers v. Bradley County

Mem. Hosp. Bd. of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981); Chattanooga Publ’g Co. v.

Hamilton County, No. E2003-00076-COA-R3-CV, 2003 WL 22469808 (Tenn. Ct. App. Oct. 31,

2003)(stating that the records in that case, including the payroll records of poll workers in the

possession of the Hamilton County Election Commission, were public records for the purposes of

the TPRA). Additionally, section 12-4-414 references only records which must be held open for

inspection by the commission and department of labor, and is silent with respect to records which

must be submitted to the appropriate state agency under section 12-4-411. In light of the mandate

of Tennessee Code Annotated § 10-7-505(d) to “give the fullest possible public access to public

records,” even assuming that the provisions of the Prevailing Wage Act are incorporated by section

7-4-205(a), we conclude that the implicit exemption to the TPRA extended to payroll records under

section 12-4-414 is not applicable to the payroll records at issue in this case.

The CCA further urges that the legislative history of the TPRA implicitly provides an

exemption from disclosure for all residential addresses. When construing a statute, “‘the courts are

restricted to the natural and ordinary meaning of the language used by the Legislature within the four

corners of the statute, unless an ambiguity requires resort elsewhere to ascertain legislative intent.’”

Memphis Publ’g Co. v. Holt , 710 S.W.2d 513, 516 (qutoing Austin v. Memphis Publ’g Co., 655

S.W.2d 146, 148 (Tenn. 1983)). We find no ambiguity in the exemptions provided by the statute.

The payroll records in this case are public records under Tennessee Code Annotated § 10-7-503.

Section 10-7-504(f) does not exempt them from disclosure, nor does it exempt the workers’

residential addresses from disclosure. This holding is consistent with the broad mandate contained

in Tennessee Code Annotated § 10-7-505(d) and our supreme court’s construction of the statute.

The CCA also asserts that, as a matter of public policy, the personal identifying information

of private employees should be confidential to the same extent as that of public employees. In the

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absence of an established exception to the TPRA, we must require disclosure of information

contained in a public record “‘even in the face of serious countervailing considerations.’” Schneider

v. City of Jackson, 226 S.W.3d 332, 340 (Tenn. 2007) (quoting Memphis Publ’g Co. v. City of

Memphis, 871 S.W.2d 681, 684 (Tenn.1994)). The supreme court has emphasized its “unwillingness

to judicially adopt public policy exceptions to the Public Records Act[,]” stating that it is the

prerogative of the General Assembly to enunciate exceptions to disclosure based on public policy.

Id. at 344 (opining that creating a public policy exception to encompass a law enforcement privilege

was “within the prerogative of the legislature[.]”); see also, State v. Cawood, 134 S.W.3d 159, 167

(Tenn. 2004)(acknowledging a right to individual privacy but declining to create a public policy

exception in light of legislative mandate that the legislature “alone has the power to make public

policy exceptions to section 10–7–503, and any exception must be supported by specific authority”).

We accordingly decline to address whether the residential addresses of workers in this case should

be exempt from disclosure as a matter of public policy in the absence of an explicit exemption within

the TPRA or an implicit exemption provided elsewhere in the statutes. The determination of the

extent to which personal identifying information, including social security numbers and residential

addresses, should be exempt from disclosure under the TPRA as a matter of public policy is one

which we must leave to the General Assembly.

Applicability of Federal Law

The CCA finally contends that case law construing the federal Freedom of Information Act

(“FOIA”) should guide our determination here, and that the trial court erred by disregarding FOIA

jurisprudence. The CCA cites Seaton v. Johnson, 898 S.W.2d 232 (Tenn. Ct. App. 1995), for the

proposition that information exempt from disclosure under FOIA also is exempt under the TPRA.

The CCA also contends that disclosure of the home addresses of employees violates the employees’

privacy rights. It asserts that courts construing the FOIA have sought to balance individual privacy

interests against the public interest to be served by disclosure, and that we must engage in a similar

analysis here. Finally, the CCA asserts that federal courts construing the Davis-Bacon Act, the

federal act upon which the Prevailing Wage Act is modeled, have concluded that an employee’s

home address is personal information, and that the employee’s privacy rights, the risk of identity

theft, and the possibility of harassment outweigh the need for disclosure. Petitioners, on the other

hand, assert that, unlike FOIA, the TPRA contains no balancing provision. They further assert that

the CCA lacks standing to assert the privacy rights of the individual employees whose records are

at issue in this case.

We begin our discussion of this issue by noting that the parties agree that the convention

center construction project is not governed by the federal Davis-Bacon Act. We additionally note

that federal law confidentiality provisions may govern some records sought under the TPRA.

Tennessee Code Annotated § 10-7-503(b) provides:

The head of a governmental entity may promulgate rules in accordance with the Uniform

Administrative Procedures Act, compiled in title 4, chapter 5, to maintain the

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confidentiality of records concerning adoption proceedings or records required to be kept

confidential by federal statute or regulation as a condition for the receipt of federal funds

or for participation in a federally funded program.

In Seaton v. Johnson, the case relied upon by the CCA, we held that the records held by the

Tennessee Department of Transportation (“TDOT”) in that case were exempt from disclosure under

federal law. Seaton v. Johnson, 898 S.W.2d 232 (Tenn. Ct. App. 1995). In Seaton, we did not hold

that the requested information was implicitly exempt under the TPRA where it would have been

exempt under FOIA anlysis. Rather, we held that information was immune from disclosure as

confidential pursuant to 23 U.S.C. §§§130, 144 and 152. Our holding in Seaton was based on

federal preemption. Id. at 237. Similarly, the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-

2725 controls the disclosure of personal information contained in state department of motor vehicle

records.5 Reno v. Condon, 528 U.S, 141 (2000). These exceptions are based on controlling federal

3

law, not upon FOIA analysis.

In United States Department of Defense v. Federal Labor Relations Authority, two unions

requested the names and home addresses of agency employees from the petitioner federal agencies.

United States Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487 (1994). The Court

engaged the balancing analysis established in Department of Justice v. Reporters Committee for

Freedom of Press, 489 U.S. 749 (1989), and concluded:

Because the privacy interest of bargaining unit employees in nondisclosure of their home

addresses substantially outweighs the negligible FOIA-related public interest in

disclosure, we conclude that disclosure would constitute a “clearly unwarranted invasion

of personal privacy.” 5 U.S.C. § 552(b)(6). FOIA, thus, does not require the agencies to

divulge the addresses, and the Privacy Act, therefore, prohibits their release to the

unions.

Id. at 502. Federal courts construing whether the disclosure of personal identifying information is

required in the context of a FOIA request for the purpose of establishing compliance with the Davis-

Bacon Act have determined that the privacy interests of employees in non-disclosure of their

6

addresses outweighs the public interest advanced by disclosure. Sheet Metal Workers Intern. Ass’n,

Local Union No. 19 v. United States Dep’t of Veterans Affairs, 135 F.3d 891, 905 (3d Cir. 1998).

The resolution of the issue under FOIA, however, requires an examination of whether “the disclosure

[of the home addresses] ‘would constitute a clearly unwarranted invasion of [the] personal privacy’

5

The TPRA provides that personal information contained in motor vehicle records shall be treated

as confidential and are open for inspection only in accordance with chapter 25 of title 55. Tenn. Code Ann.

§ 10-7-504(a)(12).

6

The Davis Bacon Act requires contractors and subcontractors to pay all mechanics and laborers

employed at a federal construction project at minimum the prevailing wage of the civil subdivision in the

state where the work is to be performed. 49 U.S.C.A. § 3142 (West 2012).

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. . . within the meaning of FOIA.” Id. at 897 (quoting United States Dep’t of Defense v. Federal

Labor Relations Auth., 510 U.S. 487, 495 (1994)). 5 U.S.C.A. § 552(a), the “Privacy Act,” prevents

disclosure of information unless disclosure is required, inter alia, by FOIA.

Under FOIA, an analysis of the issue raised in this case would require us to

weigh the privacy interest of bargaining unit employees in nondisclosure of their

addresses against the only relevant public interest in the FOIA balancing analysis-the

extent to which disclosure of the information sought would “she[d] light on an agency's

performance of its statutory duties” or otherwise let citizens know “what their

government is up to.”

Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. at 497 (quoting United States Dep’t of

Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 1482

(1989)(internal quotation marks omitted; emphasis deleted)). The CCA urges us to adopt this

balancing of interests test here. The Tennessee Supreme Court, however, has held that the TPRA

contains no balancing of interests test. Memphis Publ’g Co. v. Holt, 710 S.W.2d 513, 517-18 (Tenn.

1986). The Tennessee Supreme Court has further stated:

T.C.A. § 10–7–505 does not limit the scope of T.C.A. § 10–7–503, nor does it give the

courts leeway to exempt records from public inspection. It does no more than provide

an enforcement mechanism to gain access to governmental records opened to the public

by T.C.A. § 10–7–503. When the two sections are read together, it is evident that a

public official can justify refusing a Tennessee citizen access to a governmental record

only by proving by a preponderance of the evidence that the record in controversy comes

within a statutory exemption.

Id. We accordingly agree with the trial court that federal cases construing the question presented by

this case are not instructive where the TPRA does not contain a balancing of interest test similar to

that imposed by FOIA.

The CCA additionally asserts that workers have constitutional privacy rights to nondisclosure

of their home addresses, and that disclosure of residential addresses under the TPRA would violate

this right. Petitioners assert that the CCA lacks standing to assert this issue. In Schneider v. City of

Jackson, the supreme court stated that the City of Jackson had failed to demonstrate that it had

standing to assert the privacy rights of individuals where the cases upon which it relied were filed

by the individuals alleging constitutional violations. Schneider v. City of Jackson, 226 S.W.3d 332,

344 n.16 (Tenn. 2007). The Schneider court additionally stated:

were we to assume that the City has standing to assert the constitutional claim, the City

has failed to offer specific proof that disclosing the field interview cards would threaten

the personal security and bodily integrity of certain interviewees, proof that is necessary

to establish such a claim.

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Id.

In the current case, the CCA relies upon cases interpreting this issue for the purposes of FOIA

which, as noted above, includes a Privacy Act and balancing test not contained in the TPRA. It also

relies upon Does v. City of Trenton Department of Public Works, 565 F.Supp.2d 560 (D.N.J. 2008)

and Department of Conservation and Natural Resources v. Office of Open Records, 1 A.3d 929 (Pa.

Commw. 2010). In City of Trenton, plaintiffs were the employees of a general contractor engaged

in the construction of public works projects. Does v. City of Trenton Dep’t of Public Works, 565

F.Supp.2d at 562. In Department of Conservation and Natural Resources v. Office of Open Records,

the court declined to address the constitutional issues and disposed of the matter on statutory

grounds. Dep’t of Conservation and Natural Res. v. Office of Open Records, 1 A.3d at 936. As in

Schneider, Petitioners here have failed to demonstrate that they have standing to assert the individual

workers’ constitutional privacy rights. Additionally, as in Schneider, Petitioners here have offered

no proof that disclosing the workers’ addresses would threaten the personal security or bodily

integrity of any worker. We accordingly decline to address this issue.

Attorney’s Fees and Costs

We finally turn to Petitioners’ argument on cross-appeal that the trial court erred by denying

them an award of attorney’s fees and costs. Tennessee Code Annotated § 10-7-505(g) grants the trial

court the discretion to award costs and attorney’s fees in cases wherein the court determines that the

governmental entity willfully refused to disclose a record that it knew was public. It additionally

provides that, in determining whether the failure to disclose was willful, the court may consider any

guidance provided to the custodian of the requested record by the office of the open records counsel.

This provision of the TPRA is “by its terms a limited award provision.” Memphis Publ’g Co. v. City

of Memphis, 871 S.W.2d 681, 689 (Tenn. 1994). The determination of whether an award of

attorney’s fees is appropriate is within the sound discretion of the trial court, and we will not disturb

the trial court’s determination absent an abuse of discretion. Greer v. City of Memphis, 356 S.W.3d

917, 920-21 (Tenn. Ct. App. 2010)(citing Memphis Publ’g Co. v. Cherokee Children & Family

Servs., 87 S.W.3d 67, 80 n. 15 (Tenn. 2002)).

Our supreme court has noted that the finding of willfulness required by the statute is akin to

a bad faith requirement. Schneider v. City of Jackson, 226 S.W.3d 332, 346 (Tenn. 2007). It opined,

Stated differently, the Public Records Act does not authorize a recovery of attorneys’

fees if the withholding governmental entity acts with a good faith belief that the records

are excepted from the disclosure. Moreover, in assessing willfulness, Tennessee courts

must not impute to a governmental entity the “duty to foretell an uncertain juridical

future.”

Id. (quoting Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d at 689).

In this case, the CCA did not refuse to disclose the records sought by Petitioners. Rather, it

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disclosed the records but asserted that the personal identifying information contained within them

was rightfully redacted. It sought advice from the ORC with respect to whether the personal

information was appropriately redacted, and the ORC observed that the issue was one of first

impression in Tennessee. Petitioners did not object to the redaction of social security numbers

contained in the records, and the case proceeded on the question of whether the workers’ residential

addresses were exempt from disclosure. The trial court found that the CCA acted in good faith. The

evidence in the record does not preponderate against this finding, and we find no abuse of discretion

on the part of the trial court in this matter.

Holding

In light of the foregoing, the judgment of the trial court is affirmed. This case is remanded to

the trial court for enforcement of the judgment and the collection of costs. Costs on appeal are taxed

to the Appellant, The Convention Center Authority of the Metropolitan Government of Nashville

and Davidson County.

_________________________________

DAVID R. FARMER, JUDGE

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