Clata Renee Brewer v. Metropolitan Government of Nashville and Davidson County

11/30/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 16, 2023 Session

CLATA RENEE BREWER ET AL. v. METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON COUNTY ET AL.

Appeal from the Chancery Court for Davidson County

No. 23-0538-III I’Ashea L. Myles, Chancellor

___________________________________

No. M2023-00788-COA-R3-CV

___________________________________

This action involves various requests directed to the Metropolitan Government of

Nashville and Davidson County (“Metro”) for the release of records, pursuant to the

Tennessee Public Records Act (“TPRA”), related to a school shooting that occurred at a

private school in Nashville. Before making a determination concerning release of the

records, the trial court allowed certain interested parties to intervene in the action

pursuant to Tennessee Rule of Civil Procedure 24.02. The parties requesting the records

have appealed that ruling pursuant to Tennessee Rule of Civil Procedure 24.05.1

Discerning no reversible error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and KRISTI M. DAVIS, JJ., joined.

Paul J. Krog, Brentwood, Tennessee; Nicholas R. Barry, Washington, D.C.; John I.

Harris, III, and Douglas R. Pierce, Nashville, Tennessee; and Richard L. Hollow,

Knoxville, Tennessee, for the appellants, Clata Renee Brewer; James Hammond;

Tennessee Firearms Association, Inc.; Michael P. Leahy; Star News Digital Media, Inc.;

The Tennessean; Rachel Wegner; and Todd Gardenhire.

Wallace W. Dietz, Director of Law; Lora Barkenbus Fox, Associate Director of Law;

Cynthia E. Gross; and Phylinda Ramsey, Nashville, Tennessee, for the appellee,

Metropolitan Government of Nashville and Davidson County.

1

Tennessee Rule of Civil Procedure 24.05 provides: “Any order granting or denying a motion to

intervene filed pursuant to this rule shall be a final judgment for purposes of Tenn. R. App. P. 3.”

Eric G. Osborne, William L. Harbison, Christopher C. Sabis, C. Dewey Branstetter, Ryan

T. Holt, Micah N. Bradley, Frances W. Perkins, Hunter C. Branstetter, William D. Pugh,

Edward M. Yarbrough, Sara D. Naylor, and Hal Hardin, Nashville, Tennessee, for the

appellees, Parents of Minor Covenant Students Jane Doe and John Doe.

Rocklan W. King, III; F. Laurens Brock; and Ashley H. Harbin, Nashville, Tennessee, for

the appellee, Covenant Presbyterian Church of Nashville.

Peter F. Klett and Autumn L. Gentry, Nashville, Tennessee, and Nader Baydoun and

Stephen Knight, Brentwood, Tennessee, for the appellee, The Covenant School.

Samuel P. Funk, James K. Vines, Grace A. Fox, and Evan S. Rothey, Nashville,

Tennessee, for Amici Curiae, Franklin Road Academy, Montgomery Bell Academy, Oak

Hill School, and St. Paul Christian Academy.

OPINION

I. Factual and Procedural Background

On March 27, 2023, a tragic school shooting occurred in Nashville at The

Covenant School (“the School”), a private school operated by Covenant Presbyterian

Church of Nashville (“the Church”). Six people were killed, including three children and

three adults. The shooter was killed at the scene after opening fire on responding Metro

officers. A subsequent search of the shooter’s car and home by Metro apparently

revealed the existence of a “manifesto” and additional writings by the shooter, as well as

other evidence concerning the shooter’s thoughts and plans, all of which were confiscated

by Metro officers.

In the weeks following the incident, various individuals sought to gain access to

these documents in Metro’s possession, including Todd Gardenhire, Chairperson of the

Tennessee Senate Judiciary Committee; The Tennessean, a Nashville-based newspaper;

Rachel Wegner, a reporter for The Tennessean; James Hammond and the Tennessee

Firearms Association, Inc.; Clata Renee Brewer (in conjunction with the National Police

Association); Star News Digital Media, Inc. (“Star News”); and the chief executive

officer of Star News, Michael Leahy (collectively, “Petitioners”). When their requests

for access to the Metro records concerning the shooting were denied, Petitioners filed

petitions in various Davidson County courts seeking to gain access to the records. These

petitions were filed pursuant to Tennessee Code Annotated § 10-7-503 (Supp. 2023) of

the TPRA, which provides in relevant part that “[a]ll state, county and municipal records

shall . . . be open for personal inspection by any citizen of this state.” The petitions were

subsequently transferred to the Davidson County Chancery Court, Part III (“trial court”),

and consolidated into one action.

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Meanwhile, on May 12, 2023, the Church filed a motion to intervene, stating that

it shared a physical facility with the School. In the motion, the Church asserted that it

should be allowed to intervene in the pending TPRA actions, pursuant to Tennessee Rule

of Civil Procedure 24.01, because the records in Metro’s custody contained confidential

information concerning facility schematics and employees of the Church. The School

filed a motion to intervene a few days later on May 15, 2023, also predicated on Rule

24.01 and citing largely the same reasons supporting intervention as contained in the

Church’s motion. On May 17, 2023, a group of parents of students who were attending

the School at the time of the shooting (“the Parents”) also filed a motion to intervene.

The Parents stated that they sought to intervene to oppose disclosure of the records

concerning the shooting in order to prevent the infliction of additional trauma on the

School’s students and their families.

In response to the petitions seeking access to the records, Metro filed declarations

on May 17, 2023, stating that Metro was conducting an ongoing criminal investigation to

determine whether the shooter had assistance in the criminal acts. As such, Metro

claimed that Tennessee Rule of Criminal Procedure 16 prevented disclosure of the

records.

The trial court conducted a hearing regarding the motions to intervene filed by the

Church, the School, and the Parents (collectively, “Intervenors”) on May 22, 2023. The

trial court subsequently entered an order on May 24, 2023, allowing the permissive

intervention of the Church and the School predicated on Tennessee Rule of Civil

Procedure 24.02. The court noted that these parties sought to protect private information

to which Petitioners would not normally have access inasmuch as the Church and the

School were private entities. The court also relied upon the affidavits filed by Metro

establishing that an active, ongoing criminal investigation existed regarding potential co-

conspirators.

In its order, the trial court explained that Rule 24.02 allowed permissive

intervention when, inter alia, a movant’s claim or defense maintained common questions

of law or fact with the main action. The court reasoned that the Church and the School

maintained common questions of law and fact with the parties because, like Metro, the

Church and the School had claimed that irreparable injury would occur if there were

public access to the private information contained in the records at issue. The court

therefore determined that the requirements of Rule 24.02 had been satisfied and granted

intervention. The court directed the Church and the School to file briefs detailing the

nature of their claims and defenses in this matter.

The trial court concomitantly entered a second order, granting the Parents’ motion

to intervene and allowing the Parents to proceed under a pseudonym upon the filing of a

proper affidavit to be filed under seal. The court noted that the Parents’ claims were

based on the Victims’ Bill of Rights and Article I, § 35 of the Tennessee Constitution.

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The court determined that because the Parents’ children were victims of a crime, the

Parents had a sufficiently personal stake in the litigation to establish standing to

intervene. The court also determined that the Parents, on behalf of their children, shared

common questions of law and fact with the parties. The court thus granted permissive

intervention pursuant to Rule 24.02 and directed the Parents to file a brief setting forth

their claims and defenses.

The Church subsequently filed a brief in support of its request that the trial court

deny disclosure of the records at issue. In its brief, the Church explained that the Church

and the School shared facilities, including a security system, and that employees of the

Church worked in those facilities. In fact, the Church claimed that one of the shooting

victims was an employee of the Church. The Church stated as further bases for

preventing disclosure that (1) Metro was conducting an ongoing criminal investigation;

(2) school security records are an exception to the TPRA pursuant to Tennessee Code

Annotated § 10-7-504; and (3) the records contained personal information with respect to

employees of the Church, which information should be protected based on the

employees’ right to privacy.

The Parents filed a similar brief on May 30, 2023, stating that the records should

not be disclosed by reason of the school security exception to the TPRA and the fact that

the records contained personal information concerning minors. The Parents also argued

that releasing the shooter’s manifesto could lead to “copycat” crimes. The School

likewise filed a brief on May 30, 2023, relying on the school security exception to the

TPRA. Metro also filed a brief, asserting that the records sought should not be disclosed

due to the ongoing criminal investigation and also because they were not “public records”

as defined in the TPRA inasmuch as they pertained to school security and contained

personal information regarding minors and deceased victims.

Meanwhile, Petitioners filed separate notices of appeal, pursuant to Tennessee

Rule of Civil Procedure 24.05, regarding the trial court’s grant of the motions to

intervene. Shortly thereafter, Petitioners filed an emergency motion seeking a stay in the

trial court, arguing that the pending appeal deprived the trial court of jurisdiction in the

matter. The trial court denied this motion by order entered on June 12, 2023, determining

that no reason existed to stay the entire proceeding when only the issue of intervention

had been appealed. On June 21, 2023, this Court entered an order expediting the appeal

and providing a truncated briefing schedule. This Court also stayed the underlying trial

court proceedings, reasoning that the matter should not move forward until the proper

parties to the action had been identified.

II. Issues Presented

Petitioners present the following issues for our review, which we have restated

slightly:

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1. Whether the trial court erred by concluding that the TPRA

authorized the intervention of third parties who are neither record

requesters nor government custodians.

2. Whether the trial court lacked subject matter jurisdiction to permit

intervention by parties without standing.

3. Whether the trial court erred by allowing Intervenors to intervene

permissively.

4. Whether Petitioners are entitled to attorney’s fees incurred on

appeal.

III. Standard of Review

As our Supreme Court has previously explained, a trial court’s decision

concerning the propriety of a party’s permissive intervention is reviewed for an abuse of

discretion. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn.

2000). The High Court has further explained that a court abuses its discretion “when it

causes an injustice to the party challenging the decision by (1) applying an incorrect legal

standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a

clearly erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d

515, 524 (Tenn. 2010).

To the extent that this action involves questions of statutory interpretation related

to the TPRA, our Supreme Court has instructed:

Statutory construction is a question of law that is reviewable on a de novo

basis without any presumption of correctness. Gleaves v. Checker Cab

Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co.,

970 S.W.2d 920, 924 (Tenn. 1998). When dealing with statutory

interpretation, well-defined precepts apply. Our primary objective is to

carry out legislative intent without broadening or restricting the statute

beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90

S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we

presume that every word in a statute has meaning and purpose and should

be given full effect if the obvious intention of the General Assembly is not

violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005).

When a statute is clear, we apply the plain meaning without complicating

the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.

2004). Our obligation is simply to enforce the written language. Abels ex

rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only

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when a statute is ambiguous that we may reference the broader statutory

scheme, the history of the legislation, or other sources. Parks v. Tenn.

Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998).

Further, the language of a statute cannot be considered in a vacuum, but

“should be construed, if practicable, so that its component parts are

consistent and reasonable.” Marsh v. Henderson, 221 Tenn. 42, 424

S.W.2d 193, 196 (1968). Any interpretation of the statute that “would

render one section of the act repugnant to another” should be avoided.

Tenn. Elec. Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d

441, 444 (1937). We also must presume that the General Assembly was

aware of any prior enactments at the time the legislation passed. Owens v.

State, 908 S.W.2d 923, 926 (Tenn. 1995).

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).

IV. Construction of the TPRA

Petitioners posit that the TPRA does not permit the intervention of a third party

because its provisions appear to contemplate solely the governmental entity with custody

of the records and the person or entity seeking to gain access to the records as parties.

Petitioners therefore argue that the trial court improperly construed the TPRA’s language

by allowing intervention. Upon our thorough review of the applicable law, we disagree.

As our Supreme Court has previously clarified regarding the purpose of the

TPRA:

For more than a century, Tennessee courts have recognized the

public’s right to inspect governmental records. See, e.g., State ex rel.

Wellford v. Williams, 110 Tenn. 549, 75 S.W. 948, 959 (1903) (holding that

Memphis residents concerned about the city’s financial condition had the

right to inspect the city’s records). In 1957, the General Assembly codified

this right of public access by enacting the state’s first public records

statutes. See Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App.

2004) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). The

Public Records Act has been amended over the years, but its intent has

remained the same—to facilitate the public’s access to government records.

Swift, 159 S.W.3d at 571 (citing [Memphis Publ’g Co. v.] Cherokee

Children & Family Servs., Inc., 87 S.W.3d [67,] 74 [(Tenn. 2002)];

Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 687-88 (Tenn.

1994)); see also Cole v. Campbell, 968 S.W.2d 274, 275 (Tenn. 1998)

(noting that “[t]his Court has upheld this legislative mandate on numerous

occasions”). The Public Records Act has a noble and worthwhile purpose

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by providing a tool to hold government officials and agencies accountable

to the citizens of Tennessee through oversight in government activities.

***

There is a presumption of openness for government records.

Memphis Publ’g Co., 871 S.W.2d at 684. Custodians of the records are

directed to promptly provide for inspection any public record not exempt

from disclosure. The Public Records Act directs the courts to broadly

construe the Act “so as to give the fullest possible access to public records.”

The Act allows a person whose request for public records is denied to file

suit and seek judicial review of the governmental entity’s denial. The

governmental entity must prove justification for nondisclosure by a

preponderance of the evidence.

Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 864 (Tenn. 2016) (footnotes

omitted).

With regard to the inspection of public records, the pertinent section of the TPRA,

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

(2)(A) All state, county and municipal records shall, at all times during

business hours . . . be open for personal inspection by any citizen of

this state, and those in charge of the records shall not refuse such

right of inspection to any citizen, unless otherwise provided by state

law.

(B) The custodian of a public record or the custodian’s designee shall

promptly make available for inspection any public record not

specifically exempt from disclosure. In the event it is not practicable

for the record to be promptly available for inspection, the custodian

shall, within seven (7) business days:

(i) Make the public record requested available to the

requestor;

(ii) Deny the request in writing or by completing a records

request response form developed by the office of open

records counsel. The response shall include the basis

for the denial; or

(iii) Furnish the requester in writing, or by completing a

records request response form developed by the office

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of open records counsel, the time reasonably necessary

to produce the record or information.

(3) Failure to respond to the request as described in subdivision (a)(2)

shall constitute a denial and the person making the request shall have

the right to bring an action as provided in § 10-7-505.

The TPRA also provides a list of certain records that are confidential and not

subject to disclosure. See Tenn. Code Ann. § 10-7-504 (Supp. 2023); see also

Tennessean, 485 S.W.3d at 865 (detailing a list of statutory exceptions). Exceptions to

the TPRA’s disclosure requirements include, inter alia: (1) information related to school

security (subsection (p)(1)), (2) information concerning victims of criminal acts who are

minors (subsection (t)(1)), and (3) video taken by a law enforcement body camera that

depicts minors within a school (subsection (u)(1)). In addition, pursuant to the TPRA’s

general exception for records protected from disclosure by “state law,” see Tenn. Code

Ann. § 10-7-503(a)(2)(A), the Supreme Court has explained that governmental entities

are not required to disclose records related to a pending criminal investigation/action in

accordance with Tennessee Rule of Criminal Procedure 16. See Tennessean, 485 S.W.3d

at 871.

With respect to the procedure for obtaining access to public records, Tennessee

Code Annotated § 10-7-505 (2020) states in pertinent part:

a) 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 by

the official and/or designee of the official or through any act or

regulation of any official or designee of any official, shall be entitled

to petition for access to any such record and to obtain judicial review

of the actions taken to deny the access.

(b) Such petition shall be filed in the chancery court or circuit court for

the county in which the county or municipal records sought are

situated, or in any other court of that county having equity

jurisdiction. In the case of records in the custody and control of any

state department, agency or instrumentality, such petition shall be

filed in the chancery court or circuit court of Davidson County; or in

the chancery court or circuit court for the county in which the state

records are situated if different from Davidson County, or in any

other court of that county having equity jurisdiction; or in the

chancery court or circuit court in the county of the petitioner’s

residence, or in any other court of that county having equity

jurisdiction. Upon filing of the petition, the court shall, upon request

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of the petitioning party, issue an order requiring the defendant or

respondent party or parties to immediately appear and show cause, if

they have any, why the petition should not be granted. A formal

written response to the petition shall not be required, and the

generally applicable periods of filing such response shall not apply

in the interest of expeditious hearings. The court may direct that the

records being sought be submitted under seal for review by the court

and no other party. The decision of the court on the petition shall

constitute a final judgment on the merits.

(c) The burden of proof for justification of nondisclosure of records

sought shall be upon the official and/or designee of the official of

those records and the justification for the nondisclosure must be

shown by a preponderance of the evidence.

(d) 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.

In this matter, Petitioners filed their petitions seeking access to the subject records

following Metro’s denial of their requests to review them. The petitions were

subsequently transferred to the trial court and consolidated into one action. Meanwhile,

Intervenors filed their motions to intervene, which the trial court granted.2

On appeal, Petitioners argue that allowing intervention was improper because the

TPRA’s provisions do not expressly allow for the intervention of a third party.

Petitioners assert that the language of the TPRA contemplates a bilateral procedure with

only two “sides”—the governmental entity that maintains custody of the records and the

party who seeks disclosure of the records. By contrast, Intervenors contend that the

TPRA’s provisions neither forbid intervention nor alter the Tennessee Rules of Civil

Procedure concerning intervention. We agree with Intervenors.

As Petitioners concede in their brief, this Court must seek to construe statutes “in a

way that avoids conflict and facilitates harmonious operation of the law.” Lee Med., 312

2

Petitioners argue in their appellate brief that Intervenors were improperly allowed to intervene with

regard to all of the Petitioners’ requests because all of the cases had not yet been consolidated at the time

Intervenors’ motions were filed. Inasmuch as Petitioners failed to raise this issue in their statement of the

issues, we determine that it has been waived. See Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012)

(“[A]n issue may be deemed waived when it is argued in the brief but is not designated as an issue in

accordance with Tenn. R. App. P. 27(a)(4).”).

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S.W.3d at 527. Of course, “rules governing practice and procedure in the trial and

appellate courts of Tennessee were promulgated by the General Assembly and the

Supreme Court . . . [and] have the force and effect of law.” Frye v. Blue Ridge

Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn. 2002) (quoting Crosslin v. Alsup,

594 S.W.2d 379, 380 (Tenn. 1980)). Moreover, “[w]e presume that the General

Assembly was aware of its prior enactments and knew the state of the law at the time it

passed the legislation.” Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695,

701 (Tenn. 2009). Accordingly, “courts will not construe statutes to change existing law

more than a statute itself declares or necessarily implies.” Winter v. Smith, 914 S.W.2d

527, 538 (Tenn. Ct. App. 1995).

As both Petitioners and Intervenors point out, the TPRA clearly provides for an

expedited hearing and a truncated procedure with regard to disputes concerning the

disclosure of public records. See Tenn. Code Ann. § 10-7-505; Moncier v. Harris, No.

E2016-00209-COA-R3-CV, 2018 WL 1640072, at *11 (Tenn. Ct. App. Apr. 5, 2018)

(“The Legislature clearly intended for the expeditious resolution of petitions under

section 10-7-505 and expressly removed time restraints that normally allow defendants

time to evaluate a case and prepare a defense.”). Therefore, relative to a typical pre-trial

discovery process, the Moncier Court concluded that “the plain language of the statute

precludes such a procedure.” See 2018 WL 1640072, at *11 (“[I]t would make no sense

to conclude that our General Assembly intended to allow a plaintiff . . . to conduct

document discovery in preparation for a show cause hearing [in a TPRA action].”).

With regard to intervention, however, the TPRA neither expressly declares nor

“necessarily implies” that intervention is disallowed. Instead, the TPRA is silent

concerning intervention. Presuming that the Legislature was aware of Tennessee Rule of

Civil Procedure 24 and its provisions concerning intervention, see Highwoods Properties,

297 S.W.3d at 701, and construing the TPRA so as not to change the state of the law

more than the statute declares or implies, see Winter, 914 S.W.2d at 538, we determine

that the Legislature did not intend to completely disregard all procedural rules when

enacting the TPRA. See, e.g., Tennessean, 485 S.W.3d at 870. In other words, the

implications of the TPRA concerning document discovery, as recognized in Moncier, see

2018 WL 1640072, at *11, do not lead to the conclusion that none of the procedural rules

would be applicable in a TPRA action.

Instead, we determine that the Legislature intended to provide an expeditious

procedure concerning the disclosure of public records and that Rule 24’s provisions

respecting intervention do not run counter to that purpose. As such, we conclude that the

trial court properly considered Intervenors’ requests for intervention in this TPRA action

pursuant to the requirements of Rule 24.

In further support of this conclusion, we observe that intervention has been

allowed in prior TPRA cases that have come before Tennessee’s appellate courts. See

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Tennessean, 485 S.W.3d at 859 (noting that the trial court had allowed the intervention of

a crime victim); Griffin v. City of Knoxville, 821 S.W.2d 921, 921 (Tenn. 1991) (noting

that the trial court had permitted the intervention of the deceased’s widow);

Public.Resource.Org v. Matthew Bender & Co., No. M2022-01260-COA-R3-CV, 2023

WL 7408939, at *1 (Tenn. Ct. App. Nov. 9, 2023) (noting that the trial court had allowed

the intervention of the Tennessee Code Commission). Although the intervention issue as

presented in this matter was not specifically raised in those cases on appeal, we find it

instructive that our Supreme Court considered the intervening party’s claim in

Tennessean without providing any indication that the Court found her to be an improper

party to the action. See 485 S.W.3d at 873-874. In fact, none of those authorities hinted

at a conclusion that the trial courts had erred by allowing intervention. We likewise

determine in this matter that the trial court did not err by concluding that the TPRA

allowed the intervention of third parties who are neither a record requester nor the

government custodian.

V. Standing and Subject Matter Jurisdiction

Petitioners claim that Intervenors lacked standing to intervene in this action

because the Legislature, in enacting the TPRA, created the cause of action and designated

who may file it: parties who are seeking the disclosure of public records. Petitioners

argue that because standing is conferred by the statute, it is “interwoven” with subject

matter jurisdiction and “becomes a jurisdictional prerequisite.” See Osborn v. Marr, 127

S.W.3d 737, 740 (Tenn. 2004). Petitioners thus assert that because Intervenors were not

seeking the disclosure of records, the trial court had no jurisdiction to consider their

petitions. By contrast, Intervenors contend that they maintained standing to intervene

because they possessed a “sufficiently personal stake in the outcome of the controversy to

warrant the exercise of the court’s power on [their] behalf.” See Shelby Cnty. Deputy

Sheriff’s Ass’n v. Gilless, 972 S.W.2d 683, 685 (Tenn. Ct. App. 1997).

Petitioners’ argument contains one fatal flaw—the TPRA actions at issue herein

were filed by parties seeking the disclosure of public records. Moreover, the statute

specifically provides that such actions “shall be filed in the chancery court or circuit court

for the county in which the county or municipal records sought are situated[.]” Tenn.

Code Ann. § 10-7-505(b). As such, the trial court clearly maintained subject matter

jurisdiction over this matter. The fact that Intervenors sought to intervene in the action

would not strip the court of its statutory grant of subject matter jurisdiction concerning

TPRA disputes.

Furthermore, we determine that Intervenors maintain standing in this matter. As

this Court has previously explained:

To establish constitutional standing in Tennessee courts, a plaintiff

must establish three elements:

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1) a distinct and palpable injury; that is, an injury that is not

conjectural, hypothetical, or predicated upon an interest that a

litigant shares in common with the general public; 2) a causal

connection between the alleged injury and the challenged

conduct; and 3) the injury must be capable of being redressed

by a favorable decision of the court.[3]

Fisher v. Hargett, 604 S.W.3d 381, 396 (Tenn. 2020). To determine

whether Plaintiffs have standing to bring this case, we must examine the

particular allegations of their complaint and evaluate whether they are

entitled to adjudicate the claims. Id.; Howe v. Haslam, No. M2013-01790-

COA-R3-CV, 2014 WL 5698877, at *6 (Tenn. Ct. App. Nov. 4, 2014)

(citing Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 768 (Tenn. Ct.

App. 2002)).

The question of whether a party has standing should not be confused

with the merits of the claim; accordingly, a weak claim does not equate to a

lack of standing. Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn.

Dep’t of Educ., 645 S.W.3d 141, 148-49 (Tenn. 2022). Tennessee courts’

standing analysis is instead directed towards determining “‘whether a party

has a sufficiently personal stake in a matter at issue to warrant a judicial

resolution of the dispute,’” barring those whose rights or interests have not

been affected from bringing suit. Metro. Gov’t of Nashville v. Bd. of

Zoning Appeals of Nashville, 477 S.W.3d 750, 755 (Tenn. 2015) (quoting

State v. Harrison, 270 S.W.3d 21, 27-28 (Tenn. 2008)).

Rutan-Ram v. Tenn. Dep’t of Children’s Servs., No. M2022-00998-COA-R3-CV, 2023

WL 5441029, at *7 (Tenn. Ct. App. Aug. 24, 2023).

As the trial court noted in its orders, Intervenors asserted that they would suffer a

distinct and palpable injury by the disclosure of the records sought and that their injury

was not predicated upon an interest that they share with the general public. In addition,

Intervenors also asserted that a causal connection existed between release of the records

and the injury they were in immediate danger of suffering, which injury could be

addressed by the trial court’s determination concerning disclosure. Accordingly,

Intervenors have demonstrated, based on the allegations contained in their pleadings, a

“sufficiently personal stake in a matter at issue to warrant a judicial resolution of the

3

The “injury” required in the first element has also been described as an “immediate danger.” See

Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001).

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dispute.” See id. We determine that Petitioners’ issue concerning standing and subject

matter jurisdiction is without merit.4

VI. Permissive Intervention

The trial court evaluated Intervenors’ motions to intervene pursuant to Tennessee

Rule of Civil Procedure 24.02, which provides:

Upon timely motion any person may be permitted to intervene in an action:

(1) when a statute confers a conditional right to intervene; or (2) when a

movant’s claim or defense and the main action have a question of law or

fact in common.

The trial court determined that Intervenors had demonstrated that they shared common

questions of law or fact with the parties and allowed their intervention. This Court

reviews such decision for an abuse of discretion. See Brown & Williamson Tobacco

Corp., 18 S.W.3d at 191.

Petitioners posit that Intervenors cannot share a common question of law or fact

with the parties, as contemplated by Rule 24.02, because Intervenors do not possess a

“claim” or a “defense” in the TPRA action. We find this argument unavailing. Metro,

the responding governmental entity with custody of the records at issue, asserted certain

defenses to the TPRA action based on the statutory exceptions found in Tennessee Code

Annotated § 10-7-504 and Tennessee Rule of Criminal Procedure 16. Intervenors then

filed briefs with the trial court detailing their positions concerning the potential disclosure

of the records in question, some of which align with Metro’s defenses.5 As such, we

conclude that the trial court properly determined that the “movant’s claim or defense and

the main action have a question of law or fact in common.” See Tenn. R. Civ. P. 24.02.

We find Petitioners’ argument that the trial court incorporated an erroneous legal

standard to be unavailing.

4

We acknowledge Petitioners’ postulate that Intervenors have filed what Petitioners refer to as a “reverse

public records suit” and that such an action has not been allowed pursuant to the federal Freedom of

Information Act (“FOIA”) and should not be allowed in a TPRA action. However, Petitioners have cited

no authority based in Tennessee law to support any of their assertions in this regard. Petitioners concede

that the TPRA is “distinct from FOIA and the open records law of other states.” See Schneider v. City of

Jackson, 226 S.W.3d 332, 343 (Tenn. 2007). This being the case, we find Petitioners’ arguments

predicated on federal law respecting FOIA to be unavailing.

5

Although Petitioners postulate that Intervenors failed to file a “pleading setting forth the claim or

defense for which intervention is sought,” as required by Tennessee Rule of Civil Procedure 24.03, our

review of the record demonstrates that Intervenors filed briefs detailing their positions with respect to the

records disclosure as directed by the trial court’s orders. These briefs clearly set forth Intervenors’ points

regarding their intervention in the TPRA action and comport with the “pleading” requirement of Rule

24.03.

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We find the Supreme Court’s opinion in Ballard v. Herzke, 924 S.W.2d 652

(Tenn. 1996), instructive. In Ballard, the underlying lawsuit concerned claims of breach

of fiduciary duty, conspiracy, outrageous conduct, and other civil causes of action. Id. at

655. During the proceedings, the trial court imposed a protective order and placed certain

discovery responses filed by the defendant retirement community and its corporate owner

under seal. Id. The plaintiffs in the suit filed motions seeking to modify or dissolve the

protective order, and a Tennessee newspaper filed a motion to intervene, also requesting

that the trial court rescind the protective order. Id. at 656. The trial court allowed the

newspaper to intervene, and this Court granted an extraordinary appeal. Id. During that

appeal, this Court determined that the trial court had abused its discretion in allowing the

newspaper to intervene. Id. at 657.

The Supreme Court granted permission to appeal in Ballard and considered the

issue of whether the newspaper’s intervention was proper. Id. When analyzing the

intervention issue, the High Court explained:

Permissive intervention is governed by Tennessee Rule of Civil

Procedure 24.02, which provides in pertinent part as follows:

Upon timely application anyone may be permitted to

intervene in an action: (1) when a statute confers a

conditional right to intervene; or (2) when an applicant’s

claim or defense and the main action have a question of law

or fact in common. In exercising discretion the court shall

consider whether or not the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties.

If the would-be intervenor’s claim or defense contains a question of law or

fact that is also raised by the main action then the requirement of the rule

has been satisfied and the trial court is afforded discretion to permit

intervention.

***

[I]ntervention “is not dependent on, nor is it determined by, the status or

identification of the parties nor the nature of the dispute.” Moreover, the

question of intervention is collateral to, and does not have any bearing on,

the primary issue—modification of the protective order. What is necessary

is that the proposed intervenor demonstrate that its claims have “a question

of law or fact in common” with the main action.

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Here, as in all such cases, by virtue of the fact that the media entities

challenge the validity of the protective order entered in the main action,

they meet the requirement of Rule 24.02, that their claim have “a question

of law or fact in common” with the main action. Nonetheless, the interest

of the plaintiffs and the intervenors is not identical. The plaintiffs seek

access to enhance their ability to prepare for trial. They are not attempting

to gain access for public dissemination. Were the plaintiffs to settle this

case, their interest in modifying the protective order would end. By

contrast, the intervenors seek to gain access on behalf of the general public

in order to disseminate the information through the media. Therefore,

though the basic interest is the same, that of overturning the protective

order, the interests are not identical, and intervention is appropriate.

Where, as here, a common question of law or fact is established, the

decision to allow intervention is a matter entrusted to the trial court’s

discretion, and the decision should not be reversed by an appellate court

absent a showing of abuse of discretion.

Ballard, 924 S.W.2d at 657-58 (other internal citations omitted).

As the Ballard Court clarified, intervening parties can have “a question of law or

fact in common” with the main action despite the fact that the question may be collateral

to the primary issue in the case or that the status of the parties is not precisely the same.

See id; see also In re Estate of Thompson, 636 S.W.3d 1, 8 (Tenn. Ct. App. 2021). In the

case at bar, Intervenors raised various defenses or objections to the disclosure of the

subject records that aligned with the defenses raised by Metro in the main TPRA action. 6

As such, we must next examine whether the trial court’s discretion was abused when

granting intervention.

6

Petitioners argue that the various Tennessee victims’ rights laws (Art. I, § 35 of the Tennessee

Constitution; Tenn. Code Ann. §§ 40-38-101-119; and Tenn. Code Ann. § 40-38-301(a)) do not confer a

right to intervene and that “Intervenors seek to rewrite the TPRA to include a victims’ rights exception

that does not exist.” However, we do not need to address this argument because it is not determinative

herein. Intervenors have raised several defenses that align with the defenses promulgated by Metro,

including (1) the existence of an ongoing criminal investigation, (2) the TPRA exception concerning

school security information, and (3) the TPRA exception concerning information relating to crime victims

who are minors. As such, Intervenors have established the requisite “question of law or fact in common”

for the purposes of Rule 24.02 intervention, which is the determinative question on appeal. To the extent

that the trial court determined interpretation of the Tennessee victims’ rights laws to be significant to the

intervention issue, we note that this Court can affirm the trial court even if it reached the correct result for

a different reason. See Torres v. Bridgestone/Firestone N. Am. Tire, LLC, 498 S.W.3d 565, 577 (Tenn.

Ct. App. 2016); Biles v. Roby, No. W2016-02139-COA-R3-CV, 2017 WL 3447910, at *6, n.3 (Tenn. Ct.

App. Aug. 11, 2017).

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We reiterate that a court abuses its discretion “when it causes an injustice to the

party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an

illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.” Lee Med., 312 S.W.3d at 524. We find no such abuse of

discretion by the trial court herein. The trial court applied the correct legal standards, as

outlined above. Moreover, the trial court neither reached an illogical or unreasonable

decision nor based its decision on a clearly erroneous assessment of the evidence.

Accordingly, we determine that the trial court’s decision allowing Intervenors to

intervene in the instant action should be affirmed.

We acknowledge Petitioners’ argument that Intervenors’ interests would be

adequately represented by Metro in the TPRA action (an argument that seems to belie

their position that no common questions existed between Metro and Intervenors);

however, we do not find this argument persuasive. Although Metro did raise many of the

same defenses to the TPRA action as advanced by Intervenors, there can be no guarantee

that Metro would continue to oppose disclosure if the criminal investigation were to

conclude. As such, we determine that the trial court properly allowed interventions so

that Intervenors could represent their own interests in this action.

VII. Attorney’s Fees

Finally, Petitioners assert that they are entitled, pursuant to Tennessee Code

Annotated § 10-7-505(g), to recover their attorney’s fees incurred in obtaining public

records that have been willfully withheld. This statutory section provides:

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 determining whether the

action was willful, the court may consider any guidance provided to the

records custodian by the office of open records counsel as created in title 8,

chapter 4.

In this appeal, the only issues properly before this Court concern the trial court’s

grant of intervention to Intervenors—any issues concerning the disclosure of the sought

records had not yet been adjudicated at the time this appeal was filed and are not before

this Court. Despite this fact, Petitioners assert that “this Court should direct that upon

remand the Petitioners recover their reasonable attorney’s fees incurred on appeal if they

become entitled to such fees in the action below” (emphasis added). However, inasmuch

as Petitioners made the decision to file this appeal concerning intervention and were

unsuccessful in obtaining the relief they sought, we decline to provide the requested

directive to the trial court regarding an award of fees incurred in this appeal.

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VIII. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment allowing

intervention. Costs on appeal are assessed to the appellants, Clata Renee Brewer; James

Hammond; Tennessee Firearms Association, Inc.; Michael P. Leahy; Star News Digital

Media, Inc.; The Tennessean; Rachel Wegner; and Todd Gardenhire. We remand this

matter to the trial court for further proceedings.

s/Thomas R. Frierson, II

________________________________

THOMAS R. FRIERSON, II, JUDGE

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