Schneider v. City of Jackson

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 3, 2007 Session

RICHARD SCHNEIDER ET AL. v. THE CITY OF JACKSON

Appeal by Permission from the Court of Appeals, Western Section

Chancery Court for Madison County

No. 62846 James F. Butler, Chancellor

No. W2005-01234-SC-R11-CV - Filed on May 25, 2007

We granted this appeal primarily to determine whether Tennessee common law includes a law

enforcement investigative privilege (“law enforcement privilege”) which operates to exempt from

disclosure governmental records that would otherwise be accessible via the Tennessee Public

Records Act (“Public Records Act”). See Tenn. Code Ann. § 10-7-503 (Supp. 2006).1 We hold that

Tennessee common law does not include the law enforcement privilege and that it should not be

adopted herein. Accordingly, we reverse the judgment of the Court of Appeals, which adopted the

law enforcement privilege and applied it as an exception to the Public Records Act. However, we

remand this case to the trial court to determine whether any of the police department records at issue

are part of a pending, open, or ongoing criminal investigation and thus exempt from disclosure. We

also reverse the Court of Appeals’ judgment and reinstate the judgment of the trial court permitting

Petitioners to recover their attorneys’ fees pursuant to Tennessee Code Annotated section 10-7-

505(g) (1999). On remand, the trial court shall calculate and award Petitioners the attorneys’ fees

they have incurred on appeal. Finally, we reverse the judgment of the Court of Appeals and reinstate

the permanent injunction issued by the trial court requiring the City of Jackson (“City”) to respond

in writing to future Public Records Act requests of The Jackson Sun or its agents.

Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed; Judgment of the Trial

Court Reinstated; Case Remanded to the Trial Court for Further Proceedings

WILLIAM M. BARKER, C.J., delivered the opinion of the court, in which, JANICE M. HOLDER ,

CORNELIA A. CLARK, and GARY R. WADE, JJ.

1

Because the statutory language has not changed, citations in this opinion will refer to the current version of the

Public Records Act which appears in 1999 Replacement Volume 3A of the Tennessee Code Annotated or in the 2006

supplement to Volume 3A.

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Charles M. Purcell and Matt S. Shepherd, Jackson, Tennessee, for appellants, Richard Schneider,

Tajuana Cheshier, Jamie Page, and The Gannett Satellite Information Network, d/b/a The Jackson

Sun.

Lewis L. Cobb and Sara E. Barnett, Jackson, Tennessee, for appellee, City of Jackson.

Douglas R. Pierce, Nashville, Tennessee, for amicus curiae, Tennessee Association of Broadcasters.

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for amicus curiae, The Tennessean.

Richard L. Hollow, Knoxville, Tennessee, for amicus curiae, The Tennessee Press Association.

OPINION

I. BACKGROUND

In 2004, reporters with The Jackson Sun, a local newspaper in Jackson, Tennessee, asked the

City for access to two categories of records: (1) field interview cards generated by police officers of

the City; and (2) financial records concerning the operation of the West Tennessee Diamond Jaxx

(“Diamond Jaxx”), a class “AA” minor league professional baseball team. The Diamond Jaxx,

through its owner, Lozinak Baseball Properties (“Lozinak Baseball”), leased and operated in a

stadium the City owned. The requests for access were grounded upon the Public Records Act, which

provides, in pertinent part, that “all state, county and municipal records . . . shall at all times, during

business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of

such records shall not refuse such right of inspection to any citizen, unless otherwise provided by

state law.” Tenn. Code Ann. § 10-7-503(a) (Supp. 2006)

The City received the first request for the field interview cards on July 30, 2004, from

reporter Tajuana Cheshier, who sought access to “photos taken since January 2004 of pedestrians

and motorists in which officers applied the practice of ‘reasonable suspicion’ in order to photograph

them, although they were not arrested for a crime.” The City’s police chief verbally confirmed the

existence of these records, but the City declined to grant Cheshier access to them.

On October 26, 2004, legal counsel for Cheshier and The Jackson Sun wrote a letter to the

City’s attorney, reiterating Cheshier’s request and seeking access to “all photographic or digital

images and/or copies of any documents in the possession of the City of Jackson . . . of any and all

persons photographed or interviewed by the Jackson Police officers as part of all ‘field interviews.’”

Counsel explained that The Jackson Sun had reason to believe that City police officers had

conducted 369 field interviews since January of 2004, photographed the interviewees, and prepared

field interview cards containing both the photographs and the officers’ handwritten notes about

information obtained during the field interviews and that none of the persons interviewed were

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subsequently arrested or charged with a criminal offense. Also in this October 26, 2004 letter, legal

counsel asked the City to provide The Jackson Sun access to Diamond Jaxx financial records,

including any “notices of relocation” and “any related documents” which the City had already

received or would later receive from the Diamond Jaxx.

On December 14, 2004, Jamie Page, another reporter with The Jackson Sun, sent a letter to

the City’s Mayor requesting “access to all financial statements between the West Tennessee

Diamond Jaxx and the City of Jackson, or any financial documentation relating to the financial

agreement between the two parties, including but not limited to, any financial statement(s)

demonstrating how the Jaxx have lost at least $150,000 a year over the last two baseball seasons as

indicated by [Lozinak Baseball Properties].”

The City failed either to provide access to the requested records or to provide a written

response to the repeated requests. Thus, on January 26, 2005, the Gannett Satellite Information

Network, d/b/a The Jackson Sun, Richard Schneider, executive editor of The Jackson Sun, Cheshier,

and Page (collectively “Petitioners”) filed a petition in the Madison County Chancery Court pursuant

to Tennessee Code Annotated section 10-7-505(a) (1999)2 seeking access to the field interview cards

and to the Diamond Jaxx financial records.3 Petitioners also sought to recover their attorneys’ fees,

asserting that the City knew the records were public and willfully refused to disclose them. See

Tenn. Code Ann. § 10-7-505(g) (1999) (allowing the trial court to assess against the nondisclosing

governmental entity “all reasonable costs involved in obtaining the record, including reasonable

attorneys’ fees” upon a finding that the governmental entity “knew that such record was public and

willfully refused to disclose it”).

Consistent with the provisions of the Public Records Act, the trial court set an expedited

hearing on the matter for February 7, 2005, and ordered the City to appear and to show cause why

the petition should not be granted. See Tenn. Code Ann. § 10-7-505(b) (1999). In addition, the

Chancellor directed the City immediately to provide him the requested documents for in camera

inspection. Despite this order, the City failed to provide the records to the Chancellor prior to the

hearing. However, a few hours before the hearing, the City filed a written response to the petition,

alleging that the field interview cards were “privileged documents” not subject to disclosure under

the Public Records Act because they concerned “police tactics on investigations.” The City further

argued that the financial records were “confidential property” belonging to Lozinak Baseball and,

2

Tennessee Code Annotated section 10-7-505(a) provides:

Any citizen of Tennessee who shall request the right of personal inspection of any state, county or

municipal record as provided in § 10-7-503, and whose request has been in whole or in part denied

. . . shall be entitled to petition for access to any such record and to obtain judicial review of the

actions taken to deny the access.

3

Petitioners also sought access to audiotapes of certain 911 emergency telephone calls resulting from a shooting

incident. The trial court denied this request, finding that the tapes were part of a pending criminal investigation and not

subject to disclosure under the Public Records Act. Petitioners have not appealed this ruling.

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as such, not subject to disclosure under the Public Records Act. As support for this proposition the

City relied upon a confidentiality clause in its lease agreement with Lozinak Baseball.4

At the hearing, the City produced the stadium lease and a notice of termination letter

(“Notice”) from the President of Lozinak Baseball.5 In the letter, addressed to the City’s Mayor and

dated January 28, 2005, Lozinak Baseball advised that it planned to terminate the stadium lease after

the 2005 baseball season, explaining that the Diamond Jaxx had incurred a “Significant Operating

Loss” during the 2004 fiscal year and had sustained operating losses in excess of $150,000 for two

consecutive years, constituting grounds for termination under the lease. Attached to the Notice were

the Diamond Jaxx financial records substantiating these asserted grounds for termination. The City

agreed to provide Petitioners access to the Notice, conceding that it qualified as a public record;

however, the City argued that the attached financial records were not public records and remained

exempt from disclosure during a forty-five-day period in which the City retained its contractual

option to purchase the Diamond Jaxx. The City asserted that because it had the option to purchase

the Diamond Jaxx, these financial records were exempt from disclosure as state agency records

concerning the value of property that a governmental entity is considering acquiring. See Tenn.

Code Ann. § 10-7-504(a)(6) (Supp. 2006). The City also submitted a February 3, 2005 letter to the

Chancellor in which Lozinak Baseball invoked the contractual confidentiality clause and admonished

the City not to disclose the Diamond Jaxx financial records attached to the Notice.

As for the field interview cards, the City presented a “representative sampling” at the hearing

consisting of seventeen field interview cards that had been generated since January 1, 2005. The

City expressed its willingness to produce all of the field interview cards for the Chancellor’s in

camera inspection, but the Chancellor declined, finding the representative sample sufficient to

enable him to decide the case.

In addition, the City called four witnesses to testify about the field interview cards, including:

Commander Dennis Mays, division commander, licensed attorney, and legal advisor for the City’s

4

The confidentiality clause in the lease provides:

N. Books, Records, and Accountings . . . . The City shall have the right to make inspections of the

books and records of [Lozinak Baseball] from time to time for purposes of verifying the accuracy of

the accounting procedures and revenues to be derived by the City from the Stadium. The City’s right

of inspection shall be subject to its agreement to (i) refrain from making copies of any of [Lozinak

Baseball’s] records except as permitted by [Lozinak Baseball], such permission not to be reasonably

withheld, delayed or conditioned and (ii) hold all information obtained as a result of such inspection

confidential and to not disseminate any such information to any third party without [Lozinak

Baseball’s] approval except as otherwise required under the Tennessee Open Records Law.

(Emphasis added.)

5

The Notice and accompanying financial records were hand-delivered to the City’s Mayor on January 28, 2005,

two days after Petitioners filed suit and several months after Petitioners submitted their written requests for access in

October and December 2004.

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police department; Lieutenant Mike Holt, commander of the violent crimes unit of the City’s police

department; Lieutenant Patrick Willis, commander of the gang enforcement unit for the City; and

Richard Staples, the City’s Chief of Police. In summary, these witnesses testified that the City’s

police officers have been preparing field interview cards since 1993 or 1994 and that the cards

memorialize the contact an officer has “while conducting some kind of investigation with a citizen.”

The cards are intended to be a “central repository for information” the officers acquire while on

patrol, and the cards allow “Officer A to use Officer B’s work product . . . to work his or her own

cases.”

The field interview cards are “entered into the computer data base” and stored by “date and

time.” Each card includes blank lines on which officers may record the date, time, and reason for

the investigative stop, the investigating officer’s name and number, the interviewee’s name, address,

telephone number, date of birth, race, sex, height, weight, driver’s license number, social security

number, eye color, hair color, location of the interview, description of the interviewee’s clothing,

information about the interviewee’s vehicle, if applicable, including year, make, model, license

number, license type, license year, license state, and vehicle color. Typically, but not always, field

interview cards include photographs of the interviewees. However, as Lieutenant Willis explained,

field interview cards do not include other information officers obtain from their conversations with

interviewees. Officers generated 369 field interview cards in 2004, and approximately 80 percent

of the persons interviewed were African-American.

All of the City’s witnesses testified that field interview cards are valuable tools which allow

the City’s police to investigate and to solve crimes. For example, because suspects often use

incorrect names, and multiple gang members often use the same street name, field interview cards,

complete with photographs and other biographical information, are extremely valuable to the police

for identification purposes. In addition, the City’s police officers investigate crimes and identify

potential suspects and witnesses by reviewing field interview cards from the area where the crimes

occurred. Commander Mayes and Lieutenant Holt recalled a specific incident of a serial rapist being

apprehended as a result of a lead gained from field interview cards, and these witnesses also opined

that many other crimes have been solved as a result of leads obtained from field interview cards.

All of the City’s witnesses expressed concern that affording public access to the field

interview cards will compromise confidential police techniques and strategies, enable criminals to

avoid detection, reveal the identities of and thereby endanger witnesses and informants, increase

gang retaliation against citizens who speak with the police, and chill the public’s willingness to

cooperate with the police. Notwithstanding these concerns, Chief Staples admitted on cross-

examination that field interview cards “very rarely” have been returned to interviewees, only “two

or three times” that he could recall.

None of these witnesses actually reviewed the field interview cards prior to the hearing;

however, all of them believed and opined that the field interview cards were exempt from disclosure

by the law enforcement privilege. Concerning the perceived breadth of the law enforcement

privilege, Commander Mays, a licensed attorney who consulted with the City’s chief of police about

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Petitioners’ July and October 2004 requests for access to the field interview cards, stated:

[A]s far as I’m concerned, [the field interview cards] are privileged, period. Even the

fact . . . that an officer stopped and talked to a particular individual at a particular

place is privileged . . . . The information in these field interview cards is not public

record, as far as I’m concerned, because of the fact it identifies and exposes the

tactics and techniques that we use and the people that we talk to in order to conduct

criminal investigations.

Subsequently, Commander Mays clarified:

My position is the law enforcement privilege trumps that statute [the Public Records

Act] because of the fact the statute doesn’t take into consideration the privileges that

the Courts have long recognized that say[], “You don’t have to release anything

related to how you do your job; the results, yes, but not how you do it.”

The Chancellor rejected the City’s arguments that Tennessee law recognizes the law

enforcement privilege as an exception to the Public Records Act and held that the law enforcement

privilege does not exempt the field interview cards from disclosure. Additionally, the Chancellor

rejected the City’s arguments that the contractual confidentiality clause and the statutory exception

to the Public Records Act preclude disclosure of the Diamond Jaxx financial records. The

Chancellor issued a permanent injunction requiring the City to respond in writing to all future written

public records requests from The Jackson Sun or its agents and to explain in its written response

whether the record sought would be produced and, if not, the basis for nondisclosure. The

Chancellor awarded Petitioners’ attorneys’ fees in the total amount of $6,170, allocating one half of

this amount to each category of records requested.

The City appealed, asserting that the law enforcement privilege precluded disclosure of the

field interview cards. As for the Diamond Jaxx financial records, the City contested only the

Chancellor’s award of attorneys’ fees. Although the Court of Appeals agreed with the trial court that

no statute or rule shielded the field interview cards from disclosure under the Public Records Act,

the Court of Appeals canvassed decisions of other jurisdictions, adopted the law enforcement

privilege, and held that it precludes disclosure of records within its scope. The Court of Appeals

then remanded the case to the trial court to determine whether the field interview cards are protected

by the law enforcement privilege. In light of these holdings, the Court of Appeals reversed the trial

court’s judgment awarding attorneys’ fees to Petitioners based on the City’s failure to disclose the

field interview cards. The Court of Appeals also vacated the award of attorneys’ fees stemming from

the City’s failure to disclose the Diamond Jaxx financial records, remanded to the trial court, and

instructed the trial court to determine which of these financial records the City had in its possession

when Petitioners submitted their requests. Finally, the Court of Appeals vacated the permanent

injunction requiring the City to respond in writing to future public records requests, finding that the

Public Records Act did not authorize such an injunction.

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Petitioners filed an application for permission to appeal, challenging the Court of Appeals’

ruling on each of these issues. We granted permission to appeal primarily to consider Petitioners’

argument that the Court of Appeals erred in adopting the law enforcement privilege and in holding

that it operates as an exception to the Public Records Act; however, we will hereinafter address each

of the issues raised.

II. PUBLIC RECORDS ACT

Tennessee courts have long recognized the public’s right to examine governmental records.

See, e.g., State ex rel. Wellford v. Williams, 75 S.W. 948 (Tenn. 1903). In 1957, the General

Assembly codified this public access doctrine by enacting the Public Records Act. Ballard v.

Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). The Public Records Act now “governs the right of

access to records of government agencies in this state.” Cole v. Campbell, 968 S.W.2d 274, 275

(Tenn. 1998). Facilitating access to governmental records promotes public awareness and

knowledge of governmental actions and encourages governmental officials and agencies to remain

accountable to the citizens of Tennessee. Memphis Publ’g Co. v. Cherokee Children & Family

Servs., Inc., 87 S.W.3d 67, 74-75 (Tenn. 2002).

The Public Records Act broadly defines “[p]ublic record or records” or “state record or

records” to include “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.

2006).6 Given this definition, the Public Records Act has been described 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) (quoting Bd. of Educ.

of Memphis City Schools v. Memphis Publ’g Co., 585 S.W.2d 629, 630 (Tenn. Ct. App. 1979)).

Furthermore, the Public Records Act mandates that “all state, county and municipal records . . . shall

at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and

those in charge of such records shall not refuse such right of inspection to any citizen, unless

otherwise provided by state law.” Tenn. Code Ann. § 10-7-503(a) (Supp. 2006). These statutes

create a presumption of openness and express a clear legislative mandate favoring disclosure of

governmental records. 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).

6

As this Court has noted, another definition of “records” appears in Part 1 of the Act, however, “the definition

provided by this provision was not intended to apply to other parts of the Act, and indeed, it is possible that the inclusion

of that statute as part of the Act may be ‘a compiler’s error, occurring in the renumbering of the 1980 edition of the

Code.’” Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W .3d at 75 n.6 (quoting Creative Rests.,

Inc. v. City of Memphis, 795 S.W.2d 672, 675 (Tenn. Ct. App. 1990)).

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Moreover, Tennessee citizens denied access to governmental records have the right to file

a petition in court and “to obtain judicial review of the actions taken to deny the access.” Tenn.

Code Ann. § 10-7-505(a) (1999). At the hearing on such a petition, the governmental entity bears

the burden of proof and must justify nondisclosure of the record by a preponderance of the evidence.

Id. § 10-7-505(c). Finally, the General Assembly has directed the courts to construe broadly the

Public Records Act “so as to give the fullest possible access to public records.” Id. § 10-7-505(d).

Thus, unless an exception is established, we must require disclosure “even in the face of serious

countervailing considerations.” Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 684

(Tenn. 1994).

Petitioners argue that the Public Records Act entitles them to have access to the field

interview cards and maintain that the Court of Appeals essentially adopted and applied a public

policy exception to the Public Records Act. The City responds that the law enforcement privilege

has long been recognized in the United States and for this reason, the Court of Appeals was correct

to adopt it as Tennessee law even though the law enforcement privilege had not previously been

adopted in Tennessee. Moreover, the City contends, because it is “state law,” the law enforcement

privilege operates as an exception to the Public Records Act.

We begin our analysis by considering how the language of the Public Records Act has

developed and evolved. As originally enacted in 1957, the Public Records Act specifically excepted

from disclosure only two categories of records;7 however, it created a general exception from

disclosure for public records whose confidentiality was “provided by law or regulations made

pursuant thereto.”8 Although the specific statutory exceptions increased over time, in 1984 the

General Assembly amended the statute to narrow the general exception to only those records made

confidential by “state statute.”9

Two years later, this Court was called upon to apply the 1984 amendment. In Memphis

Publ’g Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986), a newspaper requested access to closed

investigative files of the Memphis police department. Id. at 515. This Court held that the Public

Records Act required disclosure because “no statute exempt[ed] the file in controversy.” Id. at 518.

The Court rejected the police department’s assertion that Tennessee Rule of Criminal Procedure

16(a)(2)10 precluded disclosure of the records, noting that Rule 16(a)(2) only limited access to

7

The categories excepted were medical records of patients in state hospitals and military records involving the

security of the United States or the State of Tennessee. Act of Mar. 18, 1957, ch. 285 § 2, 1957 Tenn. Pub. Acts 932,

932 (codified as amended at Tenn. Code Ann. § 10-7-504(a)(1), (3)).

8

Act of Mar. 18, 1957, ch. 285, § 1, 1957 Tenn. Pub. Acts. 932, 932.

9

Act of May 17, 1984, ch. 929, § 1, 1984 Pub. Acts 890, 890.

10

The language of current Rule 16(a)(2) is substantially the same as the language of the Rule at issue in Holt.

Currently, Rule 16(a)(2) provides:

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records relevant to a pending or contemplated criminal action and did not “come into play” to limit

access to the closed investigative file, which was “not relevant to any pending or contemplated

criminal action.” Id. at 517.

One year later this Court was called upon to reconcile the limitation provided by Rule

16(a)(2) with the disclosure required by the Public Records Act. In Appman v. Worthington, 746

S.W.2d 165 (Tenn. 1987), lawyers representing prisoners charged with killing a fellow prisoner

invoked the Public Records Act to obtain records of the Department of Correction’s internal

investigation into the murder. Id. at 165-66. Acknowledging that no statute specifically exempted

these records from disclosure, the Appman Court nonetheless held that Rule 16(a)(2) exempted from

disclosure under the Public Records Act all “open” criminal investigative files that “are relevant to

pending or contemplated criminal action.” Id. at 166. In so holding, the Appman Court stressed that

the Rules of Criminal Procedure “became effective . . . upon the [G]overnor’s approval of a joint

resolution of the [L]egislature adopting the rules, ” a procedure nearly identical to the procedure by

which statutes are enacted, and emphasized that the Rules “have the force of law” throughout the

state Id. at 166. The Court expressly reaffirmed Holt, however, explaining that the Rule 16(a)(2)

“exception to disclosure and inspection does not apply to investigative files in possession of state

agents or law enforcement officers, where the files have been closed and are not relevant to any

pending or contemplated criminal action.” Id.

Four years later, in 1991, the General Assembly amended the Public Records Act by

replacing the phrase “state statute” with the phrase “state law.”11 This Court has since held that the

phrase “state law,” added by the 1991 amendment, encompasses the Rules of Civil Procedure such

that documents shielded by the Rules need not be disclosed pursuant to the Public Records Act. See

Ballard, 924 S.W.2d at 662 (holding that the Public Records Act does not mandate disclosure of

documents sealed by a protective order entered pursuant to the Tennessee Rules of Civil Procedure);

see also Swift v. Campbell, 159 S.W.3d 565, 576 (Tenn. Ct. App. 2004), perm. appeal denied (Tenn.

2005) (holding that the Public Records Act does not mandate disclosure of records protected by

Tennessee Rule of Criminal Procedure 16); Arnold, 19 S.W.3d at 786 (holding that the Public

Records Act does not mandate disclosure of documents protected by the work product doctrine,

codified as Tennessee Rule of Civil Procedure 26.02).

Relying upon Ballard, the City argues that the Court of Appeals correctly held that the phrase

“state law” encompasses common law privileges, such as the law enforcement privilege, as

exceptions to the Public Records Act. As the parties to this appeal and the amici curiae recognize,

Except as provided in paragraphs (A), (B), (E), and (G) of subdivision (a)(1), this rule does not

authorize the discovery or inspection of reports, memoranda, or other internal state documents made

by the district attorney general or other state agents or law enforcement officers in connection with

investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by

state witnesses or prospective state witnesses.

11

Act of May 6, 1991, ch. 369, § 7, 1991 Tenn. Pub. Acts 598, 598 (codified as amended at Tenn. Code Ann.

§ 10-7-503(a)).

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this Court has not previously been called upon to determine whether the General Assembly intended

by use of the phrase “state law” to include common law privileges as exceptions to the Public

Records Act. Additionally, although the Court of Appeals had previously opined that the phrase

“state law” includes common law privileges, the Court of Appeals had not previously applied a

common law privilege as an exception to the Public Records Act. See Swift, 159 S.W.3d at 571-72

(stating that the 1991 Amendment “broadened the permissible sources of exceptions from disclosure

to include not only statutes, but also the Constitution of Tennessee, the common law, the rules of

court, and administrative rules and regulations because each of these has the force and effect of law

in Tennessee”) (footnote omitted); Eldridge v. Putnam County, 86 S.W.3d 572, 575 (Tenn. Ct. App.

2001) (refusing to recognize the “‘informer privilege’” but allowing the County on remand to argue

that exceptions provided by the “Rules of Civil Procedure” or other exceptions “found in the

common law” justified nondisclosure under the Public Records Act);12 Arnold, 19 S.W.3d at 785

(stating that the court would look to “the Rules of Civil Procedure and the Common Law” for

exceptions to the Public Records Act). Although this is an interesting issue, we need not in this

appeal precisely define the scope of the phrase “state law.” Even assuming the phrase encompasses

common law privileges, the law enforcement privilege has never been adopted in Tennessee and thus

is not a “state law” exception to the Public Records Act.

In adopting the law enforcement privilege, the Court of Appeals relied exclusively upon

federal court decisions and decisions of other state courts. However, the Court of Appeals failed to

account for the distinctions between the Public Records Act and the open records laws of these other

jurisdictions.13 For example, the federal government’s open records law, the Freedom of Information

Act (“FOIA”), has nine broad and general exceptions to disclosure that necessarily require

substantial judicial interpretation. See 5 U.S.C.A. § 552(b) (West 2007). The Illinois and

Massachusetts courts decisions upon which the Court of Appeals relied were interpreting state

statutes patterned upon FOIA. See Roulette v. Dep’t of Cent. Mgmt. Servs., 490 N.E.2d 60, 64 (Ill.

12

The City is correct that “Tennessee common law recognizes the government’s privilege, subject to certain

limitations, to withhold from the accused the identity of a confidential informant.” House v. State, 44 S.W .3d 508, 512

(Tenn. 2001) (emphasis added). “[A] defendant has no constitutional right to require disclosure of the informant’s

identity, and the decision is left to the discretion of the trial court.” Id. (emphasis added). House was rendered in the

context of a criminal case. This Court has not previously considered whether the common law “informant privilege”

operates as an exception to disclosure under the Public Records Act. W e need not consider this issue in this appeal

because the City did not raise this issue in the courts below. Therefore the issue has been waived. See, e.g., Dye v.

W itco Corp., 216 S.W .3d 317, 322 (Tenn. 2007) (“W e hold that Dye’s argument concerning the date he discovered the

permanency and compensability of his injury is waived because it was not raised before the trial court.”); Civil Serv.

Merit Bd. of City of Knoxville v. Burson, 816 S.W .2d 725, 735 (Tenn. 1991) (“There is no indication in the record that

the issue was ever argued before the trial court. It has, therefore, been waived.”). In addition, the record fails to establish

that the field interview cards actually identify informants. None of the City’s witnesses reviewed the field interview cards

prior to the show cause hearing and thus were not able to testify specifically concerning this issue. None of the field

interview cards in the representative sample the City submitted include information identifying interviewees as informants

or non-informants.

13

A comparison of open records and open meetings laws may be found at The Reporters Committee for Freedom

of the Press, Open Government Guide, http://www.rcfp.org/ogg/index.php (last visited May 22, 2007).

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App. Ct. 1986); Globe Newspaper Co. v. Boston Ret. Board, 446 N.E.2d 1051, 1055 n.11 (Mass.

1983). One of the primary federal cases upon which the Court of Appeals relied observed that the

law enforcement privilege is “largely incorporated” into FOIA. United States v. Myerson, 856 F.2d

481, 483-84 (2d Cir. 1988).

In contrast, the Public Records Act is not patterned upon FOIA. It provides specific statutory

exceptions to disclosure, with more than a dozen such exceptions for the records of law enforcement

agencies.14 Significantly, none of these express exceptions incorporate the law enforcement privilege

or otherwise bar disclosure of the field interview cards at issue in this appeal.

Not only is the Public Records Act distinct from FOIA and the open records laws of other

states, the Middle Section of the Court of Appeals has expressly refused to recognize the law

enforcement privilege as an exception to the Public Records Act, commenting that it lacks “logic and

legal support.” Swift, 159 S.W.3d at 576. Admittedly, the Court of Appeals’ refusal to adopt the

law enforcement privilege in Swift was not the primary basis for its decision. The Swift court had

already concluded that the files were protected by Rule 16(a)(2). Nonetheless, the following

rationale provided by the Swift court to explain its rejection of the privilege is persuasive:

[The State] points to no Tennessee law, statutory or otherwise, that purports to

recognize this privilege, and it likewise does not explain how the contours of this

privilege differ from the provisions of Tenn. R. Crim. P. 16(a)(2) which we have

already discussed at length in Section V. Weighed against the clear state policy

favoring the openness of governmental records, the State’s efforts to convince us to

recognize this new privilege fall short.

Id. at 578 (footnote omitted). In adopting the law enforcement privilege, the Court of Appeals in this

case did not refute the convincing rationale Swift provided for its rejection.

In adopting the law enforcement privilege, the Court of Appeals in the instant case stated:

“Given the importance of the interests protected by the law enforcement privilege, we find that it

must be recognized under Tennessee common law.” This statement indicates that the Court of

Appeals failed to recognize the significance of this Court’s prior decisions refusing to adopt “public

policy” exceptions to the Public Records Act. Indeed, in Holt, this Court rejected a public policy

exception that bears a striking resemblance to the law enforcement privilege the Court of Appeals

herein adopted. See Holt, 710 S.W.2d at 517; Memphis Publ’g Co. v. City of Memphis, 871

S.W.2d at 685 (describing Holt and stating that the Court rejected the public policy exception despite

forceful arguments from the police department of the City of Memphis and “various amicus curiae”

that subjecting closed investigative police files to public scrutiny “would result in greater reluctance

of witnesses to criminal activity to talk with authorities, and to a concomitant reduction in the

14

See, e. g., Tenn. Code Ann. §§ 10-7-503(e), -504(a)(2), (5), (8), (13), (14), (g), (h) (Supp. 2006), 37-1-153,

-154 (Supp. 2006), -155, -409(a) (2005), -506 (Supp. 2006), -612(a) (2005), 40-6-304 (2006), 40-12-209 (2006), 56-53-

109(c) (Supp. 2006), 62-27-124(c) (Supp. 2006), 62-35-131 (Supp. 2006).

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effectiveness of law enforcement”); cf. City of New York v. Myerson, 856 F.2d 481, 484 (2d Cir.

1988) (stating that the law enforcement privilege is intended “to prevent disclosure of law

enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness

and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation,

and otherwise to prevent interference with an investigation”).

More recently, we reiterated our unwillingness to judicially adopt public policy exceptions

to the Public Records Act. In Cawood, we were urged to hold that a defendant’s constitutional right

to privacy required recognition of a public policy exception that would prevent disclosure of

evidence introduced at the defendant’s criminal trial on charges of attempting to patronize

prostitution. 134 S.W.3d at 166. We declined “to make a public policy exception for the records”

but recognized that “it is within the prerogative of the legislature to do so.” Id. at 167.

Having examined the Public Records Act and prior Tennessee decisions, we conclude that

the law enforcement privilege has not previously been adopted as a common law privilege in

Tennessee and should not be adopted herein. As a result, the law enforcement privilege is not a

“state law” exception to the Public Records Act.

Although we are sympathetic to the City’s concerns about the potential consequences of

disclosing the field interview cards, the General Assembly, not this Court, establishes the public

policy of Tennessee. Cawood, 134 S.W.3d at 167. Whether the law enforcement privilege should

be adopted as an exception to the Public Records Act is a question for the General Assembly.15 Cf.

Memphis Publ’g Co., 871 S.W.2d at 689 (“expressly invit[ing] the Legislature to remedy the

underinclusiveness of § 10-7-504 by excepting the work product of county and municipal attorneys

from public view”).

Having concluded that the field interview cards are not protected by the law enforcement

privilege, we must next consider Petitioners’ assertion that they are entitled to full access to the field

interview cards because the City relied exclusively upon the law enforcement privilege at the show

cause hearing and failed to offer proof that the field interview cards are protected by Tennessee Rule

of Criminal Procedure 16. The City responds that “at least some of the confidential field interview

cards . . . are exempt from disclosure under Rule 16.”16

15

The City may wish to present this issue to the General Assembly, which, in 2006, adopted a joint resolution

creating “a special joint committee to study the open government laws in the State of Tennessee.” Act of May 27, 2006,

ch. 887, § 1, 2006 Tenn. Pub. Acts 887.

16

The City argues in its brief that “[t]he confidential field interview cards cannot be disclosed because the release

of the information contained on the cards is constitutionally prohibited because interviewees have a constitutionally

protected privacy interest in the information contained on the cards.” The City failed to advance this argument in either

the trial court or the Court of Appeals; thus, this argument has been waived. See Dye, 216 S.W .3d at 322. Additionally,

the City has not established that it has standing to assert the constitutional claims of the interviewees. In the cases the

City relies upon, the lawsuits were filed by the persons alleging constitutional violations. See, e.g., Kallstrom v. City

of Columbus, 136 F.3d 1055, 1059 (6th Cir. 1998) (where plaintiffs, undercover police officers employed by the City

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As the Court of Appeals correctly noted, the record on appeal is “undisputed that the field

interview cards are separate from the files on matters under investigation.” Interviewees may or may

not be involved in an ongoing criminal investigation in some capacity, either as a suspect, a witness,

or an informant, and the field interview cards do not indicate the status of interviewees. As

previously explained, the field interview cards are “entered into the computer data base” and stored

by “date and time.” Each card includes blank lines on which officers may record the date, time, and

reason for the investigative stop, the investigating officer’s name and number, the interviewee’s

name, address, telephone number, date of birth, race, sex, height, weight, driver’s license number,

social security number, eye color, hair color, location of the interview, description of the

interviewee’s clothing, information about the interviewee’s vehicle, if applicable, including year,

make, model, license number, license type, license year, license state, and vehicle color. Typically,

field interview cards include photographs of the interviewees. However, according to Lieutenant

Willis, field interview cards do not include summaries of the officers’ conversations with

interviewees.

Petitioners are correct that the City failed to demonstrate which, if any, of the 369 field

interview cards are involved in an ongoing criminal investigation and therefore exempt from

disclosure under Tennessee Rule of Criminal Procedure 16(a)(2). Furthermore, the City’s failure

even to review the field interview cards for the purpose of identifying those cards or portions of cards

containing information relevant to an ongoing criminal investigations is inexplicable, given that

these cards would clearly have been exempt from disclosure under Rule 16(a)(2) and this Court’s

decision in Appman. We realize the City had little time to conduct such a review after the petition

was filed because the show cause hearing was held less than two weeks later, in accordance with the

statute. Tenn. Code Ann. § 10-7-505(b) (1999) (“Upon filing of the petition, the court shall, upon

request of the petitioning party, issue an order requiring the defendant . . . to immediately appear and

show cause, if they have any, why the petition should not be granted.”). However, Petitioners first

requested access to the field interview cards in July of 2004, almost seven months prior to the

February 2005 show cause hearing. Thus, the City had more than sufficient time to conduct such

a review.

Nonetheless, recognizing that harmful and irreversible consequences could potentially result

of Columbus, sued the City of Columbus for disseminating their personnel files, containing personal information,

including home addresses and telephone numbers, to the defendants whom they had been investigating); Deja Vu of

Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 394 (6th Cir. 2001) (where plaintiffs,

adult entertainers, sued the Metropolitan Government challenging an ordinance that required them to submit their names

and past and present addresses on applications that would be subject to disclosure via the Public Records Act). Finally,

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. See, e.g., Kallstrom, 136 F.3d at 1064 (stating that undercover officers

had established a constitutional privacy interest in their personnel files by offering proof that release of the information

in the files would “threaten[] the personal security and bodily integrity of the officers and their family members”); Deja

Vu of Nashville, Inc., 274 F.3d at 395 (holding that adult entertainers had established a constitutional privacy interest

by offering proof that disclosing their names and current and past residential addresses would pose serious potential risks

to their physical safety and well-being).

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from disclosing files that are involved in a pending criminal investigation, we conclude that a

remand to the trial court is appropriate to allow the City an opportunity to review the field interview

cards and to submit to the trial court for in camera review those cards or portions of cards which the

City maintains are involved in an ongoing criminal investigation and exempt from disclosure.

Petitioners shall be granted immediate access to all field interview cards not submitted to the trial

court for in camera review.

The trial court shall determine which of the field interview cards or portions of them are

exempt from disclosure. An entire field interview card should not be deemed exempt simply

because it contains some exempt information. Rather, redaction of the exempt information is

appropriate. Eldridge, 86 S.W.3d at 574 (holding that County could redact from public records any

information made confidential by statute with “[a]ny redaction . . . subject to review by the

chancellor”). The trial court has discretion to prescribe additional procedures as necessary to govern

the proceedings on remand. The entire process should be concluded as expeditiously as possible.

Because almost three years has passed since the first request for this information, we encourage the

trial court to impose upon the City an expedited schedule for completion of its review of the field

interview cards.

III. ATTORNEYS’ FEES

We must also consider whether Petitioners are entitled to recover the attorneys’ fees they

have incurred in seeking access to the field interview cards and to the Diamond Jaxx financial

records. The Public Records Act provides as follows concerning recovery of attorneys’ fees:

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.

Tenn. Code Ann. § 10-7-505(g) (1999). The element of “willfully” required by this statute has been

described as synonymous to a bad faith requirement. Arnold, 19 S.W.3d at 789. 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.

Id. Moreover, in assessing willfulness, Tennessee courts must not impute to a governmental entity

the “duty to foretell an uncertain juridical future.” Memphis Publ’g Co. v. City of Memphis, 871

S.W.2d at 689.

Petitioners contend that the City’s reliance upon a common law privilege that had not been

adopted in Tennessee, its decision to ignore Holt and Appman, its failure even to review the field

interview cards to determine whether any were part of an ongoing criminal investigation, and its

blanket assertion that the field interview cards “are privileged, period,” show a blatant disregard for

the law and evidence the City’s willful, bad faith refusal to fulfill its obligations under the Public

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Records Act.

Petitioners claim that the City’s actions concerning the Diamond Jaxx financial records also

evidence a willful, bad faith refusal to comply with the Public Records Act. Specifically, Petitioners

maintain that the City’s claim that it did not receive the Diamond Jaxx financial records until shortly

before the show cause hearing is belied by the dates appearing on the documents themselves.17

The City responds that it had a good faith belief that the field interview cards were protected

by the law enforcement privilege and a good faith belief that the Diamond Jaxx financial documents

were protected by the confidentiality clause of the stadium lease agreement and the statutory

exception for “[s]tate agency records containing opinions of value of real and personal property

intended to be acquired for a public purpose.” Tenn. Code Ann. § 10-7-504(a)(6) (Supp. 2006).

We conclude that the record supports the trial court’s determination that Petitioners are

entitled to recover attorneys’ fees and the trial court’s award of attorneys’ fees. Petitioners requested

the field interview cards on two occasions, yet the City never reviewed the cards. Rather, the City

maintained that the field interview cards were exempt “period,” pursuant to a common law privilege

that had neither been adopted in Tennessee nor even mentioned in a Tennessee case, and which had

been implicitly rejected in Holt. Moreover, the City asserted the law enforcement privilege as if it

were a blanket privilege, yet the Court of Appeals, and other jurisdictions in which it is applied,

emphasize that the law enforcement privilege is a qualified privilege and does not under any

circumstances provide blanket protection to governmental records. See, e.g., City of New York v.

Beretta U.S.A. Corp., 222 F.R.D. 51, 66 (E.D.N.Y. 2004). Thus, recognizing that at least a portion

of the field interview cards were subject to disclosure would not have required the City “to foretell

an uncertain juridical future.” Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d at 689. The

record supports the trial court’s finding the City willfully refused to disclose the field interview

cards.

Petitioners also are correct that the dates appearing on the Diamond Jaxx financial records

indicate that the City had possession of them when Petitioners requested access. The City’s reliance

upon the contractual confidentiality clause and statutory exception to the Public Records Act to

support its refusal to disclose these documents is misplaced. As previously noted, the contractual

confidentiality clause provided as follows:

17

Petitioners are referring to two letters from the president of Lozinak Baseball to the City’s mayor dated

October 18, 2004, and the “Ticket Sales Report Sheet” referred to in one of the letters. Additionally, Petitioners maintain

that the following documents were all in the City’s possession when Petitioners requested access: a document titled

“Lozinak Baseball Properties LLC Statement of Operations for the Year Ended December 31, 2003”; a document titled

“Lozinak Baseball Properties LLC Balance Sheet December 31, 2003”; a document titled “Lozinak Baseball Properties

LLC Statement of Cash Flows for the Year Ended December 31, 2003”; a document titled “Lozinak Baseball Properties

LLC Statement of Operating Expenses for the Year Ended December 31, 2003”; and the five documents entitled

“Lozinak Baseball Properties LLC Notes to Financial Statements December 31, 2003.”

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N. Books, Records, and Accountings . . . . The City shall have the right to make

inspections of the books and records of [Lozinak Baseball] from time to time for

purposes of verifying the accuracy of the accounting procedures and revenues to be

derived by the City from the Stadium. The City’s right of inspection shall be subject

to its agreement to (i) refrain from making copies of any of [Lozinak Baseball’s]

records except as permitted by [Lozinak Baseball], such permission not to be

reasonably withheld, delayed or conditioned and (ii) hold all information obtained

as a result of such inspection confidential and to not disseminate any such

information to any third party without [Lozinak Baseball’s] approval except as

otherwise required under the Tennessee Open Records Law.

(Emphasis added.) The confidentiality clause is expressly subject to the Public Records Act and may

not serve as a basis for nondisclosure. Tennessee Code Annotated section 10-7-504(a)(6) exempts

from disclosure records “containing opinions of value of real and personal property intended to be

acquired for a public purpose” and provides that such records “shall not be open for public

inspection until the acquisition thereof has been finalized.” However, the Diamond Jaxx fianancial

records did not contain opinions about the value of property. At most these financial records

contained information that would likely have been required to determine the value of the Diamond

Jaxx; the records did not include opinions concerning the value of the Diamond Jaxx. Thus, this

statutory exception clearly did not apply to the Diamond Jaxx financial records. Again, the record

supports the trial court’s finding that the City willfully refused to comply with the Public Records

Act by disclosing these financial records.

Accordingly, we hold that the record supports both the trial court’s determination that

Petitioners are entitled to recover their attorneys’ fees and the trial court’s award of attorneys’ fees

in the amount of $6,170. Additionally, we instruct the trial court on remand to calculate and to

award Petitioners the attorneys’ fees they have incurred on appeal.

IV. PERMANENT INJUNCTION

Lastly we consider whether the trial court erred by issuing a permanent injunction requiring

the City prospectively to respond in writing to all future written public records requests from The

Jackson Sun or its agents and to explain whether the record sought would be produced and, if not,

the basis for nondisclosure. The Court of Appeals vacated this injunction, stating that it was not

authorized by the Public Records Act. Petitioners argue that the permanent injunction is authorized

by Tennessee Code Annotated section 10-7-505(d) (1999), which provides:

The court, in ruling upon the petition of any party proceeding hereunder, shall render

written findings of fact and conclusions of law and shall be empowered to exercise

full injunctive remedies and relief to secure the purposes and intentions of this

section, and this section shall be broadly construed so as to give the fullest possible

public access to public records.

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(Emphasis added.) We agree with Petitioners that this statute authorizes the injunction issued by the

trial court. This statute plainly and in unambiguous language confers upon courts broad powers to

grant injunctive remedies that secure the purposes and intentions of the Public Records Act. The

permanent injunction issued in this case directly remedies the City’s failure to respond to Petitioners’

multiple requests for public records. Requiring the City to provide a written response articulating

its reasons for nondisclosure will secure the purposes of the Public Records Act by ensuring that the

City denies such requests only after thoughtful and careful consideration. The permanent injunction

issued by the trial court therefore is reinstated.

V. CONCLUSION

We hold that the law enforcement privilege is not part of Tennessee common law and

therefore does not operate as a “state law” exception to the Public Records Act. Accordingly, we

reverse the judgment of the Court of Appeals; however, we remand this case to the trial court to

determine whether any field interview card or portion thereof is exempt from disclosure as part of

a pending, open, or ongoing criminal investigation. We also reverse the Court of Appeals’ judgment

and reinstate the trial court’s judgment finding that Petitioners are entitled to recover attorneys’ fees

and the trial court’s judgment awarding Petitioners’ attorneys’ fees of $6,170. On remand the trial

court shall calculate the reasonable award of attorneys’ fees which Petitioners incurred and are

entitled to recover for the appellate proceedings. Finally, we reinstate the permanent injunction

issued by the trial court. Costs of this appeal are taxed to the City of Jackson, for which execution

may issue if necessary.

______________________________________

WILLIAM M. BARKER, CHIEF JUSTICE

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