Alex Friedmann v. Corrections Corporation of America

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 25, 2009 Session

ALEX FRIEDMANN v.

CORRECTIONS CORPORATION OF AMERICA

Appeal from the Chancery Court for Davidson County

No. 08-1105-I Claudia C. Bonnyman, Chancellor

No. M2008-01998-COA-R3-CV - Filed September 16, 2009

This Public Records Act case was filed by Alex Friedmann (“Plaintiff”) against Corrections

Corporation of America (“CCA”). Plaintiff seeks various records from CCA. Plaintiff claims that

by operating prisons for the State of Tennessee and several local governmental entities in Tennessee,

CCA is the functional equivalent of a governmental agency and, therefore, subject to the Public

Records Act, Tenn. Code Ann. § 10-7-501 et seq. CCA maintains that it is not the functional

equivalent of a governmental agency, that the Public Records Act does not apply to it, and even if

it does, many of the records Plaintiff seeks are otherwise protected from disclosure. Following a

hearing, the Trial Court determined that CCA was operating as the functional equivalent of a

governmental agency and ordered production of most of the requested documents. CCA appeals.

For the reasons discussed below, we find that CCA is operating its various facilities in Tennessee

as the functional equivalent of a governmental agency. We also find that with respect to the South

Central Correctional Center, the public records available to Plaintiff are limited to the documents

identified in Tenn. Code Ann. § 41-24-117, which is part of the Private Prison Contracting Act of

1986. With respect to CCA’s other facilities in Tennessee, we conclude that the provisions of Tenn.

Code Ann. § 41-24-117 do not apply and, therefore, do not limit the documents available to Plaintiff.

We remand this case to the Trial Court to determine if any of the requested documents are otherwise

protected from disclosure. The judgment of the Trial Court is affirmed in part, reversed in part, and

remanded for further proceedings consistent with this Opinion.1

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

Court Affirmed in Part and Reversed in Part; Case Remanded

1

Our first Opinion in this case originally was filed on August 5, 2009. Plaintiff thereafter filed a petition to

rehear and, pursuant to this Court’s order, CCA filed a response. The petition to rehear contains arguments that were

not set forth in Plaintiff’s original brief. W hile we ordinarily would consider such arguments waived, exercising our

discretion we granted the petition, withdrew our original Opinion, and now address these new arguments.

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and

JOHN W. MCCLARTY , J., joined.

Joseph F. Welborn, III, and Jason W. Callen, Nashville, Tennessee, for the Appellant, Corrections

Corporation of America.

Andrew C. Clarke, Memphis, Tennessee, for the Appellee, Alex Friedmann, individually and as

Associate Editor of Prison Legal News.

Richard L. Colbert, Franklin, Tennessee, for Amicus Curiae Tennessee Secondary School Athletic

Association.

Tricia Herzfeld, Nashville, Tennessee, for Amicus Curiae The American Civil Liberties Union of

Tennessee, The Associated Press, The Society of Professional Journalists, The Reporters Committee

for Freedom of the Press, The American Society of Newspaper Editors, and The Association of

Capitol Reporters and Editors.

OPINION

Background

Plaintiff is an associate editor of Prison Legal News, a publication which reports on

news related to the criminal justice system. CCA is a private correctional service company that owns

and/or operates numerous correctional facilities in nineteen states, including several facilities located

in Tennessee. In May 2008, Plaintiff filed a petition seeking access to various documents in the

possession of CCA. Plaintiff claimed these documents were public records pursuant to the Public

Records Act, that he had requested production of these documents, and that CCA had refused his

request. According to the petition:

[CCA is] a company doing business in the [S]tate of Tennessee and

performing the traditionally and uniquely state governmental function

of operating a prison through contractual relationships with the State

of Tennessee. . . .

The Tennessee Public Records Act . . . applies to records

“made or received” by CCA in connection with the transaction of

official business by any “governmental agency,” which includes those

records in the hands of any private entity which operates as the

functional equivalent of a governmental agency.

At all times pertinent to the request, CCA operated prisons

and/or jails under contract with either the state or local governmental

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agencies. Operating a prison is exclusively and traditionally a

governmental activity and public function. Therefore, at all times

material hereto, CCA was acting as the functional equivalent of a

governmental agency and bound by the terms of the Public Records

Act.

* * *

[U]ntil the Private Prison Contracting Act of 1986, [Tenn. Code Ann.

§ 41-24-101], neither the [S]tate nor a private prison contractor could

enter into a contract to provide correctional services at a prison in

Tennessee. After passage of the Private Prison Contracting Act of

1986, the [S]tate could enter into contracts with private prison

contractors such as CCA. However, under the Private Prison

Contracting Act of 1986, the State has a statutory duty and obligation

to monitor, regulate, supervise and oversee the conduct and

performance of any and all private prison contractors such as CCA.

* * *

The Tennessee Public Records Act applies to CCA,

notwithstanding that CCA is a private, for-profit corporation, because

CCA operates as the functional equivalent of a governmental agency

as CCA houses prisoners and manages detention facilities for the

State of Tennessee. CCA performs a State function in return for

which the State of Tennessee provides CCA with governmental

funding. (original paragraph numbering omitted).

Plaintiff explained that before filing suit, he sent a public records request to CCA, but

that request was denied in its entirety in a letter sent by CCA’s attorney. Plaintiff sought entry of an

order granting his request for access to records and an award of reasonable attorney fees.

Plaintiff’s original request for documents was dated April 3, 2007. In that request,

Plaintiff sought the following documents:

1) I am requesting the last complaint or amended complaint (or

written claim) in each and every lawsuit, claim and other legal action

filed against Corrections Corp. of America (CCA) and its subsidiary

companies, originating in the State of Tennessee, in which CCA paid

$500.00 (five hundred dollars) or more in damages, settlements

and/or attorney fees to the claimant, plaintiff or petitioner . . . from

January 1, 2002 through and including the date of this letter. This

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request includes applicable claims or demands that were resolved

prior to suit being filed.

2) I am requesting the verdict forms, releases, claim payment

forms and/or settlement agreements in which CCA paid damages

and/or attorney fees in each and every case specified in request

number 1, above. These documents should include the case or claim

number, identity of the parties, and the amount paid by CCA to

satisfy the judgment, settlement or claim. I am requesting all such . . .

[documents] from Jan. 1, 2002 through and including the date of this

letter. This request includes applicable claims or demands that were

resolved prior to suit being filed, and regardless of whether CCA

contends that any such settlements or payments are or were

confidential.

3) I am requesting all Tennessee state, county and municipal

government reports, audits, investigations or other similar documents

which found or alleged that CCA did not comply with one or more

terms of its contracts to provide correctional services (including

contracts to operate jails, prisons, immigration facilities, etc.) where

said reports, audits, etc. were issued from January 1, 2002, through

and including the date of this letter. Said reports, audits, etc. should

include the identity of the agency issuing the finding, a description of

the finding and any sanction(s) imposed for said contract violations.

4) I am requesting all Tennessee court rulings issuing injunctive

relief or declaratory judgments against CCA, including sanctions and

contempt orders, between January 1, 2002 through and including the

date of this letter.

5) I am requesting all spreadsheets, summaries or similar

databases showing all litigation concluded against CCA in Tennessee

which resulted in the payment of money damages, settlements,

sanctions, claims and/or attorney fees from January 1, 2002 through

and including the date of this letter regardless of whether CCA

contends that the payments of money damages are or were

confidential. Said documents should include the names of the parties,

name and location of the court, case/claim number, the amount paid,

and type of claim. All cases or claims involving prisoner property

damage or lost property should be excluded from these requested

records. (emphasis in the original).

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6) I am requesting all final executed contracts and contract

renewals between CCA, the State of Tennessee and/or any county or

municipality in Tennessee regarding the ownership, management or

operation of any jail, prison, holding facility, immigration facility, etc.

from January 1, 2002 through and including the date of this letter.

A few weeks after receiving Plaintiff’s initial request for documents, CCA sent

Plaintiff a response. Although the response is several pages long, in summary CCA claimed: (1)

that it was a private corporation and not subject to the Public Records Act; (2) CCA was not

operating as the functional equivalent of a governmental agency; (3) even if CCA was subject to the

Public Records Act, many of the requested documents nevertheless exceeded the scope of the Public

Records Act because they were protected by the attorney work product doctrine or sealed by order

of a court; (4) many of the requested documents were obtainable by Plaintiff either through the

applicable court clerk’s office or the governmental agency with which CCA had contracted; and (5)

gathering all of the requested documents would be overly burdensome.

After the petition was filed with the Trial Court, CCA filed a detailed response to the

petition and made the same assertions that were set forth in its letter responding to the initial request.

CCA also filed the affidavit of Steve Groom (“Groom”), who has been employed by CCA since 2001

as its Vice President and Deputy General Counsel. According to Groom2:

CCA was formed approximately twenty-five years ago, in 1983.

CCA was not formed for the sole purpose of serving any Tennessee

government functions. CCA was not established by a governmental

entity or pursuant to any legislation. No law required CCA’s creation

or requires that it continue in existence. CCA was not created to

avoid the requirements of the Tennessee Public Records Act. CCA

is not managed or operated by the State of Tennessee or any of its

subdivisions or local governments.

Tennessee local and state agencies with whom CCA contracts have

no involvement in CCA’s corporate operations. CCA is operated at

the direction of its Board of Directors and Officers, none of whom is

a public official. Tennessee local and state officials have no veto

power or approval rights over CCA’s budgets.

CCA employees are not state employees. CCA employees do not

participate in government operated retirement plans by virtue of their

2

The original affidavit consists of many short, one-sentence paragraphs, some of which have been combined

when reproduced in this Opinion. W e have omitted the portion of Groom’s affidavit which addresses CCA’s claim that

some of the requested information was protected by the attorney work product doctrine.

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employment with CCA. CCA hires and establishes the terms and

conditions of employment for its employees.

CCA has contracts with multiple federal, state and local governments

throughout the United States for managing and/or operating

correctional facilities and detention centers. CCA controls the day-to-

day operations of each of its correctional facilities or detention

centers that it owns, manages and/or operates pursuant to contracts

with numerous federal, state and local governments throughout the

United States. At the Tennessee facilities that CCA owns, manages

and/or operates, CCA employees provide recreational, health, and

food services to inmates, while also administering disciplinary rules

and procedures. CCA’s management team at each facility supervises

their employees’ performance.

CCA receives compensation for contractual services provided

pursuant to its contracts with federal, state, and local governments,

including contracts with the State of Tennessee and local

governments within the State. CCA does not receive direct public

funding, financing, or subsidies from the State of Tennessee or any

local governments. The compensation that CCA receives from

Tennessee state and local governments totaled approximately 11.5%

of CCA’s overall revenue in 2007. The total percentage of Tennessee

local and state inmates held in CCA facilities amounts to

approximately 13.7%. . . .

Following a hearing, the Trial Court entered a detailed final order concluding that

CCA was subject to the Public Records Act. According to the Trial Court:

The Defendant Corrections Corporation of America (hereafter

CCA) contracted with the State of Tennessee to build and operate

some of its prisons. The Plaintiff made a written demand on CCA in

April of 2007, that CCA “produce” certain records because they are

public records. At a hearing in July 2008, this Court ruled from the

bench, that for purposes of the Tennessee Public Records Act, CCA

is operating as the functional equivalent of a state agency. The Court

also ruled that certain records requested by the Plaintiff are public

records. The Court now clarifies the bench ruling and amends to add

analysis of Tenn. Code Ann. § 41-24-117, which addresses some of

CCA’s records and also addresses some of the records requested by

the Plaintiff.

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The Court interprets the terms of the Tennessee Public

Records Act broadly, to enforce the public interest in open access to

the records of state governmental entities. See Memphis Publ’g Co.

v. Cherokee Children & Family Servs., 87 S.W.3d 67 (Tenn. 2002).

The Act provides in pertinent part that “[A]ll state . . . records . . .

shall at all times, during business hours, be open for personal

inspection by any citizen of Tennessee . . . .” Tenn. Code Ann. § 10-

7-503(a) (Supp. 2007) (now Tenn. Code Ann. § 10-7-503(a)(2)(A) as

amended by 2008 Tenn. Pub. Acts ch. 1179, section 1, effective July

1, 2008). Tenn. Code Ann. § 10-7-301(6) defines public record to

mean “[A]ll 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.”

The Supreme Court of the State of Tennessee has interpreted

the Act such that the definition of public records also includes records

made and received in connection with the transaction of official

business in the hands of any private entity which is the functional

equivalent of a governmental agency:

[T]he functional equivalency approach . . .

provides a superior means for applying public records

laws to private entities which perform “contracted

out” governmental services. . . . [P]rivate entities that

perform public services on behalf of a government

often do so as independent contractors. Nonetheless,

the public’s fundamental right to scrutinize the

performance of public services and the expenditure of

public funds should not be subverted by government

or by private entity merely because public duties have

been delegated to an independent contractor. When a

private entity’s relationship with the government is so

extensive that the entity serves as the functional

equivalent of a governmental agency, the

accountability created by public oversight should be

preserved.

Cherokee at 78-79.

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“The cornerstone of this analysis . . . is whether and to what

extent the entity performs a governmental or public function, for we

intend by our holding to ensure that a governmental agency cannot,

intentionally or unintentionally, avoid its disclosure obligations under

the Act by contractually delegating its responsibilities to a private

entity.” Id. at 79. The Court must decide, considering certain non-

exhaustive factors, whether the public/governmental nature of CCA’s

activities, outweighs its private character such that the records made

and received by CCA, in connection with the transaction of official

(i.e., state) business, are public records under the Act. No single

factor is dispositive. Allen v. Day, 213 S.W.3d 244 (Tenn. Ct. App.

2006). In this case, Tennessee has contracted out to CCA, functions

which are historically those allocated to the people of the State

pursuant to the Tennessee Constitution. Article I, Section 32 of the

Tennessee Constitution 1870 states “[T]hat the erection of safe and

comfortable prisons, the inspection of prisons, and the humane

treatment of prisoners, shall be provided for.” This section was

amended in 1998 to remove the term comfortable.

In deciding that CCA is operating as the functional equivalent

of a governmental agency, the Court [finds] that CCA performs the

traditional governmental or public functions described in the

Tennessee Constitution since 1870, and that these public functions

outweigh its private identity for purposes of the Public Records Act.

The Court focuses upon the history of the State’s obligation

to operate prisons. In 1985, the Attorney General opined that “. . . the

State must retain custody and control over its prisoners. This is

because the State may not delegate or contract away its police powers

or obligations imposed upon the State by the Constitution.” Op.

Tenn. Att’y Gen. No. 85-286 [Nov. 27, 1985)]. The opinion further

states “. . . detention has traditionally been considered an exclusive

prerogative of the state . . . . The power of governing is a trust

committed by the people to the government. . . . Such a trust cannot

be granted away.” Id. at 5-6. . . .

After discussing the non-exclusive factors listed in Cherokee, the Trial Court

concluded that CCA was operating as the functional equivalent of a governmental agency and,

therefore, was subject to the provisions of the Public Records Act. The Trial Court then discussed

the 6 specific requests made by Plaintiff as quoted previously in this Opinion. The Trial Court

ordered that the documents sought in requests numbered 1 through 4 and 6 be made available for

inspection and copying except: (1) any settlements that were sealed by a court; and (2) any court

orders responsive to the 4th request which the originating court placed under seal. As to the

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spreadsheets, etc., sought in the 5th request, the Trial Court concluded that Plaintiff was entitled to

a summary or spreadsheet “showing all litigation concluded against CCA in Tennessee, which

resulted in payment of money damages or settlements or sanctions or claims or attorney’s fees from

January 1, 2002 through and including the date of the letter.”

As to Plaintiff’s request for attorney fees, that request was denied. The Trial Court

concluded that it was reasonable for CCA to refuse inspection of its records since CCA was a private

entity. The Trial Court added that the “Public Records Act does not authorize a recovery of attorney

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

from disclosure.” The Trial Court specifically found that CCA was acting in good faith and,

therefore, an attorney fee award was not proper.

CCA appeals raising several issues. First, CCA argues that the Trial Court erred

when it concluded that CCA was operating as the functional equivalent of a governmental agency.

Second, CCA claims that the Trial Court erred by not finding that the Private Prison Contracting Act

controlled which documents must be made public. Finally, CCA claims the Trial Court erred when

it ordered production of certain documents because production of those documents violated the work

product doctrine or because the documents were unrelated to CCA’s contracts with the State and

local governments. Plaintiff asserts that the Trial Court’s rulings on the above issues were correct.

The only issue raised by Plaintiff is his claim that the Trial Court erred when it refused to award him

attorney fees incurred in prosecuting this case.3

Discussion

The standard of review in this Public Records Act case is set forth in Memphis Publ’g

Co. v. Cherokee Children & Family Servs., 87 S.W.3d 67 (Tenn. 2002) and involves a question of

law: “Our determination whether the Tennessee Public Records Act applies to the records in . . . [the

defendant’s] possession is a question of law.” Id. at 74. With respect to legal issues, our review is

conducted “under a pure de novo standard of review, according no deference to the conclusions of

law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58

S.W.3d 706, 710 (Tenn. 2001).

We first address the issues with respect to the South Central Correctional Center

located in Clifton, Tennessee. This is the only facility operated by CCA pursuant to a direct contract

with the State of Tennessee. The issues as to this facility are: (1) whether CCA is operating the

South Central Correctional Center as the functional equivalent of a state agency and, if so, (2)

whether the requested documents as to that facility are covered by the Public Records Act.

3

An Amicus Curiae brief was filed by the Tennessee Secondary School Athletic Association (“TSSAA”).

TSSAA requests this Court reverse the Trial Court’s finding that CCA was subject to the Public Records Act. An

Amicus Curiae brief also was filed collectively by The American Civil Liberties Union of Tennessee, The Associated

Press, The Society of Professional Journalists, The Reporters Committee for Freedom of the Press, The American Society

of Newspaper Editors, and The Association of Capitol Reporters and Editors. These entities request this Court affirm

the judgment of the Trial Court except as to its refusal to award Plaintiff attorney fees.

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In Cherokee, supra, our Supreme Court discussed the various approaches taken by

other jurisdictions when deciding whether records in the possession of private entities performing

public functions should be considered public records. After so doing, the Court concluded:

Our review of authority from other jurisdictions persuades us

that the functional equivalency approach . . . provides a superior

means for applying public records laws to private entities which

perform “contracted out” governmental services. As the facts of these

cases demonstrate, private entities that perform public services on

behalf of a government often do so as independent contractors.

Nonetheless, the public’s fundamental right to scrutinize the

performance of public services and the expenditure of public funds

should not be subverted by government or by private entity merely

because public duties have been delegated to an independent

contractor. When a private entity’s relationship with the government

is so extensive that the entity serves as the functional equivalent of a

governmental agency, the accountability created by public oversight

should be preserved.

Consequently, in light of our duty to construe the Tennessee

Public Records Act liberally in favor of “the fullest possible public

access to public records,” we follow the Connecticut Supreme Court

and interpret records “made or received . . . in connection with the

transaction of official business by any governmental agency” to

include those records in the hands of any private entity which

operates as the functional equivalent of a governmental agency. In

making this determination, we look to the totality of the

circumstances in each given case, and no single factor will be

dispositive. The cornerstone of this analysis, of course, is whether

and to what extent the entity performs a governmental or public

function, for we intend by our holding to ensure that a governmental

agency cannot, intentionally or unintentionally, avoid its disclosure

obligations under the Act by contractually delegating its

responsibilities to a private entity. Beyond this consideration,

additional factors relevant to the analysis include, but are not limited

to, (1) the level of government funding of the entity; (2) the extent of

government involvement with, regulation of, or control over the

entity; and (3) whether the entity was created by an act of the

legislature or previously determined by law to be open to public

access.

We caution that our holding clearly is not intended to allow

public access to the records of every private entity which provides any

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specific, contracted-for services to governmental agencies. A private

business does not open its records to public scrutiny merely by doing

business with, or performing services on behalf of, state or municipal

government. But when an entity assumes responsibility for providing

public functions to such an extent that it becomes the functional

equivalent of a governmental agency, the Tennessee Public Records

Act guarantees that the entity is held accountable to the public for its

performance of those functions.

Cherokee, 87 S.W.3d at 78-79.

With all due respect to CCA, this Court is at a loss as to how operating a state prison

could be considered anything less than a governmental function. As noted by the Trial Court, the

Tennessee Constitution requires the State to provide for its prisoners. See Tenn. Const. art. 1, § 32

(“That the erection of safe prisons, the inspection of prisons, and the humane treatment of prisoners,

shall be provided for.”). This Constitutional requirement was not eliminated with the passage of the

Private Prison Contracting Act of 1986. While this Act does allow the State to contract out certain

correctional services, the statute does not change the fact that the State ultimately is responsible for

providing these services. In other words, the State still must provide the constitutionally required

services; it just does so, in part, through its contract with CCA. In addition, the State monitors CCA

to ensure that its contractual obligations are fulfilled,4 and the State retains its authority over the

inmates’ sentences and other aspects of their incarceration. Tenn. Code Ann. § 41-24-110 provides

that:

Powers and duties not delegable to contractor. – No contract for

correctional services shall authorize, allow or imply a delegation of

the authority or responsibility of the commissioner to a prison

contractor for any of the following:

(1) Developing and implementing procedures for calculating

inmate release and parole eligibility dates;

4

Tenn. Code Ann. § 41-24-109 (2006) provides as follows:

M onitoring of contractor performance – Reports. – In addition to other powers

and duties prescribed by law, the commissioner shall monitor any contracts with

prison contractors providing correctional services and shall report at least annually,

or as requested, to the select oversight committee on corrections or any other

legislative committee regarding the performance of the contractor. The comptroller

of the treasury shall audit the performance of the department of correction and the

private contractor to ensure that the state is receiving the quality and level of

services as described in the contract based upon the performance criteria, the

monitoring process, and any applicable sanctions that might be incurred. The

comptroller shall report annually or as requested to the select oversight committee

on corrections.

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(2) Developing and implementing procedures for calculating

and awarding sentence credits;

(3) Approving inmates for furlough and work release;

(4) Approving the type of work inmates may perform, and the

wages or sentence credits which may be given to inmates engaging in

that work; and

(5) Granting, denying or revoking sentence credits; placing

an inmate under less restrictive custody or more restrictive custody;

or taking any disciplinary actions.

Tenn. Code Ann. § 41-24-110 (2006).

As to funding, Groom’s affidavit provides that in 2007, contracts with Tennessee state

and local governments comprised only 11.5% of its overall revenue. However, the affidavit is silent

as to how much of CCA’s total revenue generated in Tennessee comes from its contracts with the

State and local governments. That percentage likely is quite high, and CCA never argues otherwise.

In short, we conclude, without difficulty, that the Trial Court correctly determined

that with respect to the South Central Correctional Center in Clifton, Tennessee, CCA is operating

that facility as the functional equivalent of a state agency pursuant to the analysis set forth in

Cherokee. The providing of prisons is a responsibility that the State cannot delegate to a private

entity. While the State can contract with a private entity such as CCA to operate a prison consistent

with the provisions of the Private Prison Contracting Act of 1986, the ultimate responsibility to

provide for its prisoners belongs to the State of Tennessee. See W.J. Michael Cody and Andy D.

Bennett5, The Privatization of Correctional Institutions: The Tennessee Experience, 40 Vand. L.

Rev. 829 (1987):

[Operating correctional facilities] is not an area analogous to

providing hospitals or fire protection. Operating correctional

facilities is more than a traditional state function: the state has no

higher duty than to ensure that those persons who violate society’s

laws are punished. Fulfilling that duty is essential to the integrity of

the government and to the protection of the public. It is not a duty

that can legally or morally be handed to a private party and then

ignored. The involvement of private parties in the corrections process

5

At the time this article was written in 1987, Andy D. Bennett was the Deputy Attorney General for the

Legislative Affairs and Reporter Division of the Tennessee Attorney General’s Office. He was appointed to the Middle

Section of the Tennessee Court of Appeals in September 2007.

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may produce benefits, but it must be limited to its proper scope under

state control.

Id., at 849; see also Allen v. Day, 213 S.W.3d 244, 263 (Tenn. Ct. App. 2006) (Cottrell, J.,

concurring)(Explaining that incarceration is a prime example of one of the activities “traditionally

performed by state and local governments in fulfilling their roles.”); Op. Tenn. Att’y Gen. No. 85-

286 (Nov. 27, 1985) ([D]etention has traditionally been considered an exclusive prerogative of the

state . . . .”).

Next, we address CCA’s claim that, with respect to the South Central Correctional

Center, the Private Prison Contracting Act of 1986 limits the documents that must be made available

to Plaintiff. The Public Records Act expresses the General Assembly’s intent generally to make

state, county, and municipal records open to the public “unless otherwise provided by state law.”

Tenn. Code Ann. § 10-7-503(a)(2)(A) (Supp. 2008).

In Cater v. Bell, 279 S.W.3d 560 (Tenn. 2009), the Supreme Court set forth principles

to utilize when interpreting a statute:

The most basic principle of statutory construction is to ascertain and

give effect to legislative intent without broadening the statute beyond

its intended scope. State v. Sherman, 266 S.W.3d 395, 401 (Tenn.

2008). When statutory language is clear and unambiguous, we must

apply its plain meaning in its normal and accepted use, without a

forced interpretation that would extend the meaning of the language

and, in that instance, we enforce the language without reference to the

broader statutory intent, legislative history, or other sources.

Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 630

(Tenn. 2008). Statutes relating to the same subject or having a

common purpose should be construed together. Lawrence County

Educ. Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d 302, 309

(Tenn. 2007). We must presume that the General Assembly is aware

of prior enactments and of decisions of the courts when enacting

legislation. Ki v. State, 78 S.W.3d 876, 879 (Tenn. 2002).

Carter, 279 S.W.3d at 564.

In addition to the principles set forth in Carter, we also avoid statutory interpretations

that would render part of a statute meaningless. For example, in In re Estate of Nelson, No. W2006-

00030-COA-R3-CV, 2007 WL 851265 (Tenn. Ct. App. Mar. 22, 2007), no appl. perm. appeal filed,

we stated:

Adhering to general principles of statutory construction, we read

statutory language according to its plain meaning, and if it is

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unambiguous, we cannot force an interpretation that would alter the

statute’s application. See Eastman Chem. Co. v. Johnson, 151

S.W.3d 503, 507 (Tenn. 2004). Where an ambiguity exists, we seek

to ascertain the legislature’s intent and purpose by looking to the

entire statutory scheme and by considering the purpose for which the

language was selected. See id. In interpreting the provisions of

Tennessee Code Annotated Section 45-2-703, as with any other

portions of the same statute, this Court reads the provisions in pari

materia and presumes that the legislature intended for each word in

the statute to have meaning. Faust v. Metro. Gov’t of Nashville, 206

S.W.3d 475, 489-90 (Tenn. Ct. App. 2006). Thus, we endeavor to

effectuate the intent of the legislature by avoiding an interpretation

that would render the statute’s language meaningless, redundant, or

superfluous. Eastman Chem. Co., 151 S.W.3d at 507; Faust, 206

S.W.3d at 489 (quoting Tidwell v. Collins, 522 S.W.2d 674, 676-77

(Tenn. 1975)); McGee v. Best, 106 S.W.3d 48, 64 (Tenn. Ct. App.

2002) (“The Court has a duty to construe a statute so that no part will

be inoperative, superfluous, void or insignificant. The Court must

give effect to every word, phrase, clause, and sentence of the Act in

order to achieve the Legislature’s intent, and it must construe a statute

so that no section will destroy another.” (citations omitted)).

Estate of Nelson, 2007 WL 851265, at *10. See also Culbreath v. First Tenn. Bank Nat’l Ass’n, 44

S.W.3d 518, 524 (Tenn. 2001) (“[W]e must interpret the statute ‘as a whole, giving effect to each

word and making every effort not to interpret a provision in a manner that renders other provisions

of the same statute inconsistent, meaningless or superfluous.’”) (quoting Cafarelli v. Yancy, 226 F.3d

492, 499 (6th Cir. 2000)).

CCA relies on Tenn. Code Ann. § 41-24-117 (2006) when arguing that only limited

documents in its possession pertaining to the South Central Correctional Center must be produced.

Tenn. Code Ann. § 41-24-117 is part of the Private Prison Contracting Act of 1986. This statute

provides:

Records relating to inmates in private facilities. – The records and

other documents concerning any inmate who is sentenced to the

custody of the department of correction and is being housed in a

prison or facility operated by a private prison contractor shall be

public records to the same extent such records are public if an inmate

is being housed in a department of correction facility.

CCA argues that this statute expresses the General Assembly’s intent to make

available through a private prison contractor only those inmate documents that would otherwise be

available through the Public Records Act if the prison were being operated by the Department of

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Correction, and all other records of the private prison contractor not so identified are not public

records. Plaintiff, on the other hand, argues that all of the records he requested are otherwise

available under the Public Records Act and that Tenn. Code Ann. § 41-24-117 does nothing to

change this result.

We agree with the interpretation placed on the statute by CCA. We conclude that

Tenn. Code Ann. § 41-24-117 is intended to state exactly which documents in the hands of a private

prison contractor operating a prison pursuant to the Private Prison Contracting Act are to be made

available to the public. Any documents not so identified are not to be considered public records in

the possession of a private prison contractor, such as CCA. To hold otherwise (i.e., by holding that

documents not covered by this statute still must be made available pursuant to the Public Records

Act) would result in Tenn. Code Ann. § 41-24-117 having no purpose whatsoever other than to

merely restate the result to be reached under the Public Records Act. This would render Tenn. Code

Ann. § 41-24-117 both meaningless and superfluous, a result we are to avoid if possible.

As stated previously, the Public Records Act expresses the General Assembly’s intent

generally to make state, county, and municipal records open to the public “unless otherwise provided

by state law.” Tenn. Code Ann. § 10-7-503(a)(2)(A). Thus, the General Assembly has reserved to

itself the right to exempt documents from the coverage of the Public Records Act. We hold that in

order to give Tenn. Code Ann. § 41-24-117 any meaning, that statute must be interpreted as

expressing the General Assembly’s intent to limit the records that are to be considered “public

records” in the hands of a private prison contractor operating a prison pursuant to the Private Prison

Contracting Act of 1986, even though the private prison contractor is functioning as a state agency.

This is the General Assembly’s prerogative. If, in our attempt to give meaning to Tenn. Code Ann.

§ 41-24-117 as we must, we have misinterpreted the General Assembly’s intent, it is, of course, free

to amend the statute to more clearly set forth its intent in passing the applicable statute.

In summary, as to the South Central Correctional Center, we find that: (1) CCA is

operating that facility as the functional equivalent of a state agency; and (2) only the records

identified by Tenn. Code Ann. § 41-24-117 must be made available pursuant to the Public Records

Act.

We next discuss the other facilities operated by CCA in Tennessee. These facilities

are not being operated pursuant to the Private Prison Contracting Act of 1986 as that statute, by its

own terms, authorizes the State to contract with a private entity only for the operation of one prison.

Specifically, Tenn. Code Ann. § 41-24-103(c) (2006) states:

A contract for correctional services as defined in § 41-24-102(2)(F)

is authorized only for one (1) medium security or minimum security

facility opened after July 1, 1991, and only according to the

requirements and procedures specified in this chapter. No contract

shall be authorized for a facility intended primarily to serve special

needs inmates.

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CCA’s other facilities, i.e., facilities being operated pursuant to contracts with local

governmental entities rather than the State of Tennessee, are being operated pursuant to the County

Correctional Incentives Act of 1981, Tenn. Code Ann. § 41-8-101, et seq. Pursuant to this statute,

local county governments are authorized to house certain state inmates sentenced to the Department

of Correction. In turn, the counties are reimbursed by the State. The counties also are permitted to

subcontract with private entities, such as CCA, to provide these correctional services. For example,

CCA operates two facilities in Hardeman County pursuant to this statutory scheme.6 The express

purpose of the County Correctional Incentives Act is to:

[Provide] financial incentives to counties to house additional

nondangerous felony offenders locally. The purpose of the chapter is

to mutually benefit state and county governments by:

(1) Helping alleviate overcrowding in state correctional

facilities and reducing high operation costs; and

(2) Assisting counties in upgrading local correctional facilities

and programs.

Tenn. Code Ann. § 41-8-102 (2006).

For the reasons set forth previously in this Opinion, we readily find that these

facilities likewise are being operated by CCA as the functional equivalent of a governmental agency.

Specifically, by statutory authorization, instead of contracting directly with a private entity, the State

has contracted with a county government which, in turn, has contracted with a private entity. By

operating these facilities, CCA is, nevertheless, providing a governmental function. In short, private

entities cannot legally imprison someone. This must be done by the government, whether federal,

state, or local. In other words, it is the act of imprisonment that is the governmental function,

regardless of whether the inmate is imprisoned pursuant to federal, state, or local laws.7 In addition,

pursuant to the County Correctional Incentives Act, there still is significant governmental oversight

for prisoners being housed in accordance with this Act.8

6

CCA operates both the Hardeman County Correctional Center and the W hiteville Correctional Facility

pursuant to contracts with the Hardeman County Correctional Facilities Corporation. Both of these facilities are located

in W hiteville, Tennessee.

7

W e reach this same result even if these facilities are housing inmates who were not sentenced to the custody

of the Department of Correction because their sentence was less than one year but who, nevertheless, are in the county’s

custody and being detained at the facility.

8

For those counties who choose to house state prisoners at their local facilities, the county contracts with the

Tennessee Department of Correction. “Under the authority of T.C.A. § 41-8-108, the Department of Correction is

authorized and directed to establish rules for the general administration of the County Correctional Incentives Act.”

Tenn. Comp. R. & Regs. 0420-2-3-.01. W hen the services are subcontracted out by a county to a private contractor, the

(continued...)

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Having concluded that CCA’s other identified facilities in Tennessee are being

operated as the functional equivalent of a governmental agency, the next issue is whether the public

records that must be made available from these facilities are limited by Tenn. Code Ann. § 41-24-

117 (2006) in the same manner the records of the South Central Correctional Center are limited. For

the reasons set forth previously, we conclude that these other facilities are not being operated

pursuant to the Private Prison Contracting Act and, therefore, Tenn. Code Ann. § 41-24-117 does

not apply and cannot serve as the basis in which to limit public documents otherwise available under

the Public Records Act.

In summary up to this point, we conclude that with respect to all of the facilities

operated by CCA in Tennessee, CCA is operating these facilities as the functional equivalent of a

governmental agency. As to the South Central Correctional Center, the only records available to

Plaintiff from CCA are those identified in the Private Prison Contracting Act at Tenn. Code Ann.

§ 41-24-117. As to the remaining facilities, the Private Prison Contracting Act is not applicable to

those facilities and, therefore, Tenn. Code Ann. § 41-24-117 does not operate to limit the records

available pursuant to the Public Records Act.

Unfortunately, our inquiry is not quite over as there are several other points we must

address. First, CCA has maintained throughout this litigation that many of the documents sought

by Plaintiff are protected from disclosure pursuant to the attorney work product doctrine. The Trial

Court never determined whether the attorney work product doctrine does protect any of the requested

documents from disclosure. On remand, the Trial Court must make this determination.

Second, CCA argues that the Trial Court’s order requiring CCA to produce

documents was overbroad and must be limited to CCA’s management of Tennessee state and local

prisons. The Public Records Act defines “public records” as follows:

“Public record or records” or “state record or records” means 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) (Supp. 2008). On remand, the Trial Court also must determine if

any of the records sought by Plaintiff are outside the scope of Tenn. Code Ann. § 10-7-301(6). In

other words, Plaintiff is not entitled to documents that were not “made or received pursuant to law

8

(...continued)

private contractor must comply with the various requirements of the County Correctional Incentives Act. See Tenn.

Comp. R. & Regs. 0420-2-3-.09 (“Any county which contracts with a private nongovernmental entity for management

and operation of its local correction facility must still comply with the procedures and requirements set forth in these

rules in order to receive reimbursement from the state based upon the reasonable allowable cost of housing state

felons.”).

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or ordinance or in connection with the transaction of official business by [CCA acting as a]

governmental agency[.]”

Third, we must review the Trial Court’s determination that Plaintiff was not entitled

to an award of attorney fees. As relevant to this appeal, Tenn. Code Ann. § 10-7-505(g) (Supp.

2008) provides that:

If the court finds that the governmental entity, or agent thereof,

refusing to disclose a record, knew that such record was public and

willfully refused to disclose it, such court may, in its discretion,

assess all reasonable costs involved in obtaining the record, including

reasonable attorneys’ fees, against the nondisclosing governmental

entity. . . .

In Memphis Publ’g Co. v. Cherokee Children & Family Servs., 87 S.W.3d 67 (Tenn.

2002) our Supreme Court explained:

Under the Act, the decision whether to award attorney’s fees is left to

the discretion of the trial court; consequently, we will not disturb that

decision absent clear evidence of an abuse of that discretion. Tenn.

Code Ann. § 10-7-505(g) (1999); see also Aaron v. Aaron, 909

S.W.2d 408, 411 (Tenn. 1995) (“The allowance of attorney’s fees is

largely in the discretion of the trial court, and the appellate court will

not interfere except upon a clear showing of abuse of that

discretion.”).

Cherokee, 87 S.W.3d at 80 n.15.

Given the complicated nature of this case, we cannot conclude that the Trial Court

abused its discretion when it refused to award Plaintiff attorney fees. The record fully supports the

Trial Court’s conclusion that CCA was acting in good faith. For this same reason, we decline to

award Plaintiff attorney fees incurred on appeal.

Finally, we note that our various holdings affect only the documents in the possession

of CCA. Our conclusions do not affect whether the State or local governments contracting with

CCA must supply these documents in their possession, if so requested. Likewise, our holding is not

intended to affect whether Plaintiff can obtain certain of the documents he seeks from the various

clerks of the courts. Thus, to the extent Plaintiff’s request for documents has been limited, some of

these records are nevertheless available to Plaintiff from other governmental sources. As a result,

the “accountability created by public oversight . . . [will] be preserved,” and the governmental

entities contracting with CCA will not be able to avoid their disclosure obligations based on the

contents of this Opinion. See Cherokee, 87 S.W.3d at 79.

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We conclude that: (1) CCA is operating all of its facilities in Tennessee as the

functional equivalent of a governmental agency; (2) as to CCA’s contract with the State to operate

the South Central Correctional Center, the only records subject to being produced pursuant to the

Public Records Act are those identified in Tenn. Code Ann. § 41-24-117; however, because Plaintiff

did not follow the proper procedure when requesting these documents, his request as it pertains to

the South Central Correctional Center is dismissed9; (3) as to the facilities operated by CCA pursuant

to the County Correctional Incentives Act, the documents subject to production are not limited by

Tenn. Code Ann. § 41-24-117; (4) on remand, the Trial Court must determine if any of the requested

documents are not subject to production because they were not “made or received pursuant to law

or ordinance or in connection with the transaction of official business by [CCA acting as a]

governmental agency”; (5) on remand, the Trial Court must determine if any of the requested

documents are not subject to production because they are protected from disclosure pursuant to the

attorney work product doctrine or any other law; (6) the judgment of the Trial Court refusing to

award attorney fees to Plaintiff is affirmed; and (7) Plaintiff is not entitled to attorney fees incurred

on appeal.

Conclusion

The judgment of the Trial Court is affirmed in part and reversed in part. This case

is remanded to the Chancery Court for Davidson County for further proceedings consistent with this

Opinion and for collection of costs below. Costs on appeal are taxed one-half to the Appellant,

Corrections Corporation of America, and its surety, and one-half to the Appellee, Alex Friedmann,

for which execution may issue, if necessary.

__________________________________

D. MICHAEL SWINEY, JUDGE

9

To the extent that any of the records sought by Plaintiff pertaining to the South Central Correctional Center

are covered by Tenn. Code Ann. § 41-24-117, Tenn. Comp. R. & Regs. 0420-01-02-.04 sets forth the procedure for

obtaining these records, which include directing the request to the Public Information Officer of the Department of

Correction, as opposed to CCA.

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