# FILED
February 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997

THE KNOXVILLE NEWS- ) C.C.A. NO. 03C01-9708- CR-00331 SENTINEL, ) Appellee, ) ) ) KNOX COUNTY VS. ) ) HON. RICHARD R. BAUMGARTNER THOMAS DEE HUSKEY, ) JUDGE ) Appe llant. ) (Tenn. R ule App. P. 9 Ap peal - ) Motion to Unseal Record) In Re: ) ) STATE OF TENNESSEE ) ) Appellee, ) ) v. ) ) THOMAS DEE HUSKEY, ) ) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : HERBERT S. MONCIER RICHARD L. HOL LOW Suite 775 Nati onsbank Center NATHAN D. ROW ELL 550 Main Street Watson, Hollow & Reeves, PLC Knoxvill e, TN 37902 1700 First Tennessee Plaza Knoxvill e, TN 37901-0131 GREGORY P. I SAACS Suite 280 O ne Centre Square JOHN KNOX WALKUP Knoxvill e, TN 37901 Attorney Generaland Reporter JOH N H. B AKE R, III Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 RANDALL E. NICHOLS Distri ct Attor ney General City-County

Building Knoxvill e, TN 37902
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
In this interlocutory

appeal taken pursuant to Tennessee R ule of Appellate Procedure 9, the Appellant, Thomas Dee Huskey, asks this C ourt to reverse the decision of the Knox County Criminal Court allow

ing Intervenor-Appel lee, the Knoxville New

s-Sentinel , (hereinafter KNS ), to inspect previously sealed summary cover sheets of attorney fee and expense claims whic h set forth the total fees and expenses paid to defense counsel out of pu blic funds dedicated for use in representing indigent criminal defendants. The trial court also ordered unsealed those documents reflecting the total amoun ts paid out for the services of expert witnesses in the defense of the case. Detailed attorneys fe e and expense claims, motions and or

ders dealin g with authorizatio n of expert s ervices,and detailed

time sheets of undisclosed defense exper ts were left sealed and unav ailable for public or press inspection.

The Appellant claims the trial court’s order is il legal, unconstitutional,and prejudices his right

to a fair trial. The Appellee argues that the well- recognized and constitutionally pres

cribed public nature of judic ial proceedings in thi s state mandates that the public and press be allowed to examine the do cuments which were unsealed by the tr ial court.

After a careful review of the record and the extensiv e briefs filed in this matter we are of the opinion that the j udgment of the trial court must be affirmed.

I. FACTUAL A

ND PROCEDURAL BACKGROUN D The Appellant, Thomas Dee Huskey,was charged in 1992 w ith the commission of thirty-tw o separate offenses involvi ng ten victims. Four of the alleged offenses are charged as capital murder. The case has generated a great deal of-3-

publicity in Knox County and the surrounding area. The trial of the capital cases is
currently st

ayed due

to the pe ndency

in the Te nnessee

Supreme

Court o f a separate interlocutory appeal dealing with a court-ordered mental evaluation of Mr. Huskey.
Mr. Huskey

is indige nt and two at

torneys w

ere appointed to represe nt him. Over time these attorney s have submitted to the tri al court various req uests for attorneys fees and expenses, including money for the pay ment of expert witnesses assisting in Mr. H uskey’s defense. These documents w ere ordered held under seal. On June 2, 1997, KNS filed a motion to intervene i n the case and asked the trial court to unseal documents pertai ning to any applicatio n for, support of, or payment of fees or expenses in connection with the defense of the case. On Ju ne 6, 1997, the trial court granted KNS permission to interven e, and on July 11, 1997, a heari ng
was con ducted o n the pet ition of KNS for access to the documents in q uestion.
On July 16, 1997, the trial court entered an order parti ally granting the newspaper’s motion. The cour t ordered: (1) That detailed time sheets and detail ed expense sheets submitted by defense counsel in this matter, shall remain se aled until the cases are concluded, but the summary cover sheets s etting forth the total amount paid to defense counsel shall be unsealed. (2) That motions requesting expert services and the orders authorizing those ser

vices shall remain s

ealed until the conclusion of these cases. (3) That the detailed time sheets of the au thorized experts in this case shall remain sealed, but the total amount paid to expert s or for expert services s hall be unsealed. If a particul ar expert has offered evidence in the case and is known to the public through on the record proceedings then the total amount paid to those ind ividual experts will be disclosed. All other e xperts or expert s

ervices not heretofore of record shall remain unidentified until the cases are conc luded, but the total amount p

aid for those services

shall be re leased as a l ump sum. The trial court further order ed that the documents ordered unseale d be forwarded to this Court, and we now have them before us.-4- On August 14, 1997, Mr. Hus key’s attorneys fil ed an application for an interlocutory appeal pur suant to Tennessee Rule of Appellate Pr ocedure 9. The application was granted by the trial court on the same day. On September 3, 1997 , this Court granted the appl ication and the matter is now before this Court.

II. TRIAL COURT JURISDICTION Appellant’s first complaint regards the jurisdic tion of the trial court to g rant the relief re quested b y KNS . Appellant maintains that thi s is not an appropriate acti on under the Tennessee Public Records Act , Tennessee Code Annotated Section 10- 7-501, et seq ., and no other provision of the law allows the criminal court to grant KNS the right to inspect these documents.

Tennessee Code Annotated Section 10 -7-503(a) declares: All state, county and municipal records and all records maintained by the Tennessee performin g arts center management corporation, exce pt any public documents authorized to be destroy ed by the county public records commission in accordance with § 10-7-404, shall at all times, during business hou rs, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shal l not refuse such right of inspection to any citi zen, unless otherwi se provided by state law. Tennessee Code Annotated Section 10-7- 504 contains a number of exceptions to the generally public nature of governmental records, however, none of those exceptions are pertinent here. In addition the Tennessee Supr eme Court has recognized other exceptions to the right to inspect public records. In Appman v. Worthington , 746 S.W.2d 165 (Tenn. 1987); the Tennessee Supreme Court held that documents i n an active criminal c ase which would not be subject to discovery

and inspection under Tennessee Rul e of Criminal Procedure 16 are not subject to inspecti on under the Public Records Act. The Court reasoned that Rule 16's protection of cer tain material from discover y constituted an excepti on1 Cou rts ha ve inh eren t pow er to s eal th eir rec ords whe n priv acy int eres ts ou tweig h the public ’s right to kno w. In re Knoxvi lle News-Sent inel Co.,Inc. 723 F.2d 470 (6th Cir. 1983). -5- to Public Records Act i nspection in an active criminal prosecution. In the case sub judice, Mr. Huskey alleges that Tennessee Rule of Criminal Procedure 16(b)(2) exempts the documents in question from inspection un der the Public Records Act and thus the trial court sho uld not permit inspection of the doc uments by the media. We disagree. Rule 16(b)(2) provides: Information not Subject to Discl osure. -- Except as to scientific or medical repor ts, this subdivision

does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant’s attor neys or agents in connection with the i nvestigation or defense of the case, or of statements made by the de fendant, or by state or defense witnesses, or by prospective s tate or defense witnesses, to the defendant, th e defendant’s agents or attorneys. It is obvious that this rule is designed to maintain confidentiality with respect to materials connected to the substantative defe nse of a criminal prosecution. W hile many of the documents left sealed by the trial court may fit into this category since they might reveal de

fense confidences such as the names of potentia l experts and the subjects of their research, it is apparent that the cover sheets which merely reflect totals paid to attorney s and experts do not rev eal any defense confidences. Such materials do not fall within the purview of Rule 16(b)(2).
Secondly, and perhaps more importantly, the only reason the materials in question were confidentia l in the first place is bec ause the trial court order ed the materials sealed. 1 Documents sealed by a cour t of this state are not subject to inspection under the Tennessee Publ ic Records Act. Ballard v. Herzke , 924 S.W.2d 652, 662 (Tenn. 1996). Howev er, because of the general publi c right of access to courts and their records, it is appropriate to allow media entities to intervene in court2 Ballard involv ed media interv

ention i n a civi l case wherei n the int ervenors sought modificati on of a protecti

ve order whi ch had sealed di scovery documents i n a highly publici zed dispute concerning t he financia l operation of a reti rement community in Memphis, Tennessee. We believe however that the reasoning of Ballard applies wi th equal f

orce to the i nstant case.
3 Article I, Sec . 19 of the C onstitution o f Tenn essee presum ably extend s a sim ilar qualified righ t to the publi c. That secti on provides:

That the pri nting presse s shall be f ree to every person to examine t he proceedings of the Legislat ure; or of any branch or officer of the government, a nd no law shal l ever be made to restr ain the r ight t hereof. The fr ee communication of thought s and opinio n, is one of the inval uable ri ghts of man, and every citi zen may freel y speak, write, and pri nt on any subject, bei ng responsibl e for the abuse o f that l iberty . But i n prosecutio n for the pub licatio n of p ape rs inv estig ating the o fficia l cond uct o f offic ers, o r me n in pu blic capacity , the truth thereof may be given i n evidence; and in all indict ments for li bel, t he jury shall hav e a right to de termin e the law a nd the fa cts, und er the direc tion of the c ourt, -6- proceedings wherein the intervenors seek modification of a court order seali ng judicial records from publ ic inspection. Id

. 2

Ballard is but the last in a line of Tennessee cases recognizing the public’s right to intervene and

examine judicial proc

eedings when the public’s right to know can be balanced against the r ight of litigants to a fair

adjudication of the substantative civi l or criminal proceedi ng. See, e.g., State v. James , 902 S.W.2d 911 (Tenn. 1995); State v. Drake , 701 S.W.2d 604 (Te nn. 1985).
Taken together we believ e this line of cases firmly establishes the right of the public, including the medi a, to intervene in court proceedings for the purpose of attending the proceedings,or for the purpose of petitioning the Court to unseal documents and allow public inspection of them. W e believe the trial court properly allowed KNS to intervene in this c ase.

III. RIGHT OF PUBLIC ACCESS TO COURT PROCEEDINGS AND DOCU MENTS

As noted earlier, the Tennessee S upreme Court has recogniz ed a qualified right of the public, founded in c ommon law and the First Amendment to the United States Constitution, to attend judicial proceedings and to examine the documents generated in those proceedings. 3 Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn.as in other criminal case s. See als o, H&L Messengers, Inc. v.City of Brentwood , 577 S.W.2d 444 (Tenn. 1979) ( holding both the First Am end me nt to th e Un ited S tates Con stitutio n and Art. I, § 19 ar e not abso lutes and t hat n arro wly tailored res trictions on free spe ech m ay be utilized to se rve imp ortant go vernm ental interes ts.)

4 Facsimile of bl ank cover sheets such as those for which pub lic i nspection was gr anted appear as Appendices A and B at 880 F.2d 634-635. -7- 1996). However, this right of access is not absolute and it must be balanced against other interests such as a criminal defendant’s right t o a fair trial. State v. Drake , 701 S.W.2d 604, 607 (Tenn. 1985). This balance must be careful ly struck, and any restriction on public ac

cess must be narrowly

tailored to accommodate the competing interest wi

thout unduly impeding the flow of information. Id.
In the context of a request by a media entity to examine sealed fee and expense documents relating to public monies expended in the defense of indigent criminal defendants, the balancing of competing interests discussed supra ., is best illustrated by a federal case that is remarkably similar to the case at bar. In United States v. Suarez , 880 F.2d 626 (2nd Cir. 1989) ; a Connecticut newspaper was allowed to intervene in a federal armed robbery pr osecution involving

the theft of $7.6 million from a Wells Fargo depot in West Hartford, C onnecticut. The newspaper petitioned the di strict court to allow inspection of, inter alia , sealed summary cover sheets on fee and expense documents which reflecte d interim amounts expended out of public funds for ex pert services and attor

neys fees connected to the defense of the indigent d efendants. The district court g ranted the newspaper access to these cover sheets. These cov er sheets reflected total amounts expended out of public monies,but did not contain detailed i nformation about particular subjects of expert inquiry, nor did the cover sheets disclose information which might r eveal defense strategy beyond that already know n to the prosecution. 4 The United States Court of Appeals for the Second Circuit held that the newspaper was entitled to the limited access granted by the district court, since-8-

public inspection of the cov er sheets would not prej udice the defendant’s rights t o a fair trial. Id . at 629.
In reaching its decisi on, the court in Suarezrejected th e very same arguments posited by Mr. Huskey in the instant case. The court found that the “barebones data” contained in the cover sheets would not reveal defense strateg ies so as to prejudice the defendant’s rights to a fair trial

. Id. at 631. The court concluded that examination of the docume nts did not compromise the defendant ’s rights to attorney-client privilege, work product protection, or the effective assistance of counsel. Id.
Finally, the Suarezcourt noted that the defendants arg ued that their right to the equal protection of the law was being viola

ted by the limited access to documen ts affo rded the press. Th e defen dants co ntended , as does M r. Huskey, that were they not indi gent they would not be required to disclose s uch fee and expense information as that contai ned in the cover sheets. The court found however, that while the public has no protected interest in knowing how privately retained attorneys and ex perts are compensated, it has a strong interest in know ing how public monies are ex pended. This difference justifies the di sparity in treatment, however unfortunate, betw een indigent and non-indig ent criminal defendants. Id. at 632.
We are persuaded that the Suarezdecision reflects a wel l-reasoned approach to the issues present ed by the Appellant, Mr. Huskey. The documents which were unsealed by the trial court contain only total amounts author ized and expended in the defense of this case. Docume nts which might reveal defense strategies or the identi

ties of previously undisclosed experts remain sealed under the trial court’s order

of limited public access. We are unable to di scern how-9-

revelation of the “barebones” information ordered u nsealed will prejudice Mr. Huskey’s right t

o a fair trial. We also reject for reaso ns stated in Suarezand discussed supra. , that revelation of these documents will compromise work product protections, attorney-client privilege, deprive Mr. Huskey of the effective assistance of coun sel, or viol ate Mr. Hus key’s right to the equ al protec tion of t he law.
Accordingly, the j udgment of the trial court is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ DAVID H. WELLES , JUD GE