# FILED

March 24, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk JERRY CAMMUSE, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9709-CH- 00503 v. ) ) Davidson Chancery DAVIDSON COUNTY D ISTRICT ) No. 90-W-240 ATTORNEY , et al, ) ) Defendants/Appel

lees. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE DAV IDSON COUNTY CHANCE RY COURT AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

JERRY CAMMUSE, Pro Se Turney Center 4B/

60 Route One Only, Tennessee

37140-9709

JOHN KNOX WALKUP Attorney General & Reporter
MICHAEL E. MOORE Solicitor General
MEREDITH DEVAULT Cordell Hull Buildin

g, Second Floor 425 Fifth Avenue, N

orth Nashville, Tenne ssee 37243 ATTORNEYS FOR DEFENDANTS/APPELLEES

REVERSED and REMANDED

WILLIAM B. CAIN, JUDGE2 

## O P I N I O N

This case represents an appeal from the dismissal of an inmate/Petitioner’s request under the Tennessee Pubic Re cords Act to obtain a ccess to documents used in his crimina l prosecution.

On November 30, 1 990, in case no. 90-W-240, Jerry D wayne Cammuse

was convicted in criminal court of 23 counts of sexual misconduct ranging from

se xual battery to aggravat ed rape of his minor children. Mr. C ammusewa s represented at the trial of these charg es by Mike Engle of the Metropolitan Nashville Public Defender’s Office. Fro m this conviction, Mr. Cammuse appealed. Mr. Camm use was represented at the appellate proceeding by Mr. Engle and Mr. Je ffrey A . DeVasher, of the Public Defender’s Office. Afte r exhausting his opportunity for direct appeal from those proceedings, Mr. Cammuse filed, circa 1996 , a Petition for P ost-Conviction

Relief. At this stage he was represent

ed by Terry J. Ca

nady.

On June 5, 1997, Mr. C ammuse filed the pro se petition which forms the genesis of the case at

bar. The petition, denominated as a “Request Pursuan t to 5 U.S.C.A. §552 & 552(a) Freed om of Information

and P rivacy Request, Alternatively

Petition for Access to Public Records, T.C.A. § 10-7-505, “names

as respondents, the D avidson County Police D epartment, the District Attorney’s Office for Metropolitan Nashville and Davi dson County, Tennessee Depar tment of Human Services and Nashville General Hospital. Appellant’s prayer for relief reads in pertinent pa

rt as follows: This Petitioner prays th

is court will issue an appropriate order to the Davidson County Me tropolitan Polic e D epartment; the Davison County District At

torney’s Office ; and, the Tenn es see Department

of Human Service s to surrender copie s of all case files dealing with the subj ec t of Jerry Cammuse , for Davidson Coun ty Case No. 90-W-240, or any other invest igation conducted by any of the respondents pert

aining to Jerry Camm

use and all case

notes, investigative

notes, inner-off

ice communications o

r inn er-a gency com munications no matter the form , hard-copy or ele

ctronically recorded.3 On June 18, 1997, Mr. Cammuse moved to am end his petition to

add as party respondents Messrs.DeVashe r and Engl e as well as one Terry A. McConnell. The Davidson County Police Department answered Appellant’s petition denying Mr. Cammuse’s standing as a citize n, rec ounting with more particularity

the circumstances of Appellant’s criminal convictions. The Police Department

mo ved fo r judgment on the plea dings under Rule 12.03 of the Tennessee Rules of Civil Proc edure. The Dav

idson County Distr

ict Attorney answered and moved similarly. In addition to

the lack of standing, the District Attorney's office alleged that Appellant's Post-Conviction attorney had alrea

dy inspected any items subject to di scovery in the criminal trial. Also, the doctrine of collateral estoppel was raised regarding the finding of the Court of Criminal Appeals that records sought f rom the Departme

nt of Human Services were lost.
Although the record shows no evidentiary hearing, two orders of dismissal

were entered in this case. These tw o orders grant the R

espondents’ motion to dismiss on the followi

ng grounds: 1. Insofar as Mr. C ammuse seeksdisclosure of documents in the D.A.’s Office et al., whi ch he, through his coun sel Terry Canady , has already had t he opportunityto peruse and copy, his petition fails to state a claim upo n which relief can be gra

nted. 2. Mr. Cammuse is barred thro ugh c ollateral estoppel f rom requesting documents, which a court of co mpetent juris d iction has already f ound to be missing and lost. 3. Tennessee Code A

nnotated section 10-7- 503 does not provide for the forced copying and pe

rsonal delivery by an

agency of the state

atthe behest of

a requestingparty. In fact none of the sections provide for more than availabil

ity to inspect and copy. 5 U .S.C. § § 552 and 552(a); Tenn. Code Ann. § 10-7-503. 4. Mr. Cammuse, b

y virtue of his multiple convictions for i nfa mous crimes, is not entitled to acc ess to public records. The court cites as authority for this finding. Cole v. Campbell , No. 01-A-01- 9603-CH-00140, 1996 W L 724920 ( Tenn.App.1996)

and Ray v. Stanton , No. 88-285-II , 1989 WL 14135 (Tenn.App

. 1989). 4. The Freedom of Infor mation Act and the P

rivacy Act, Tit

le 5, sections 552 and 552(a) of the U .S. Code respec tively, do not apply to s

tate agencies. Hasty v. Grunow , DKT No. 3-92-0736 (M.D.Tenn.October 29, 1992).4 Appellant takes issu

e only with two of the

above conclusions, i. e., those regardinginfamy, and the pro vision of copies to

inmates by mail. Mr. Cammuse argues on appeal t

h at his convictions for

infamous crimes do n

ot destroy his rights as a citizen under t he Public Records Act. I n truth Cole, supra, has been reversed by the supreme court of this state. Cole v. Campbell, 968 S.W.2d 274 (1998). In th at opinion t he court held that con

victed felons do indee

d have standing to fileunder the Public Re cords Act. Ther

efore Mr. Camm

use is correct in his assertion that his convictions do not deny him standing under the Public Records Act to request disc losure of the do cuments in question. The quest ion of what access the a

ct requires governm

ental agencies to g

rant was addressed most recently by the stat

e supreme court in Tennessean v. Ele c. Power Bd. Nashville , 979 S.W.2d 297 (Ten n. 19 98). In that case the state supreme court found that, consistent with the reasonable rules promulgated by custodial agencies regarding access to their public recor ds, i ndividuals willing to pay reasonable

costs of reproducti

on may obtain said copies from the agencies them selves. Te nn. Code Ann. § § 10-7-503(a), 506(a) (1992 & Supp. 1998); Tennessean

v. Elec. Pow

er Bd. Nashville , 979 S.W.2d 297, 304-305 (Tenn. 1998). The statute s themselves provide a s follows:

All state, county

and municipal recor

ds and all records maintained by the Tennessee perfor

ming arts center m

anagement corpora

tion, except any public documents authorize d to be destroyed by the county public records comm ission in accordance with

§ 10-7-404, shall at all times, duri ng bu siness hours, be open for personal inspection

by any citizen of Tennessee, and those in charge of such records shall not refuse su ch rig ht of inspection to any c itizen, unless otherwise pr ovided by state la w. Tenn. Code Ann. § 10-7-503(a) (1998).
Any public official having cha rge or custody of or c

ontrol over any public records of convictions of traffic violations or any other state, county or municipal public of fenses shall

make a vailable to any citizen, upon request, during regular offi ce hours, a copy

or copies of any such record requested by such cit izen, upon the payme

nt of a reasonable charge

or fee therefor. Such

official is authori

zed to fix a charge o r fee pe r copy that would rea sonably defray the c

ost of producing and del ivering such copy or copies.

Tenn. Code Ann. § 10-7-507 (1992)1 All prior requests discussed in the record were made on his behalf by petitioner’s prior

counsel in connection with his criminal trial, his criminal appeal and his post conviction petition. All of these actio ns became f

inal prior to filing

the instant petition

, which seems to be grounded not in any specific additional court action, but simply in Mr. Cammuse’s status as a “member of the public” under Cole v. Campbell, supra. 5 The thrust of

the above statutes is plain. When the intent of the legislature is represented by such clear and unambiguous language , the duty of the court is to apply rather

than construe such language. See Austin v. Me mphis Publishing Co. , 655 S.W .2d 146, 148 (Tenn.19 83). See also Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 516 (Tenn.1986).

Itbears noting

that the petitioner i

n Cole, prior to filing, had requested the documents in connection with a pending appeal from the administrative action of the warden of the facility in w hich he was incarc

erated. Cole v. Campbell, 968 S.W.2d at 274 (1998). In the

case at bar, the

re has been n o showing in the record of any pending proceeding connecte d with petitioner’s request. Indeed, with deference to Petitioner, there is no other proof that Pe titioner made reque sts pursuant to the act pr

ior to instituting this ac

tion. 1
Obviously, the import of the statutes is such that, were Mr. Cammuse not in prison, they would re quir e the respondent custodians to open their nonprivileged records

for his perusal, consistent with the r easonable rules of t

hose custodial agencies.

In addition to the

allowance in sect

ion 10-7-507 regardin

g records of

convictions, the ac

t has been interpret

ed to allow

assessing of actual costs of copying “commerc ial records” as w

ell. Tennessean v. El

ec. Power Bd. Nash ville , 979 S.W.2d 297, 303 -304 (Tenn. 1998); Tenn. Code. Ann . § 10 -7

- 506(a) (1988).

In light of the above auth orities and despite hi s incarceration due t o multiple convictions, we fi nd he is entitled (a)

to make such a

request, and (b) t

o have an evidentiary hear

ing before the chanc

ellor, in which the stat e bears the burden of proof for justifi cation of non-dis closur e by a preponderance of the evidence. Tenn. Code Ann. §10-7-505 (1998). We reverse the or ders granting Respondents'

motions below without preju dice to the Respondent

s’ right to raise all possible defenses inc

luding but not limited to t

hose regarding

privilege under6

Tennessee Code Annotated, section 10-7-504 (1998), and res judicata, as proper defenses to disclosure in the c ourt below. In any event, Appellant must comply with the cost

and expense require

ments of section 507 a

nd Tennessean, supra, before he may comp

el copying of any rec

ords.

We remand the cause to the chancery court for a hea rin g on the merits guided by the principles listed above.

___ _ __________________________ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ _ BEN H. CANTRELL, P

RES. JUDGE, M.S.

__________________________________ _ WILLIAM C. KOCH, JR., JUDGE