IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 11, 2017 Session

NATALIE SHARP v. TENNESSEE DEPARTMENT OF 

COMMERCE AND INSURANCE

Appeal from the Circuit Court for Davidson County

No. 15C3610 Thomas W. Brothers, Judge

No. M2016-01207-COA-R3-CV

This appeal involves the trial court’s order of disclosure of certain public records over the 

objection of the Tennessee Department of Commerce and Insurance and the 

corresponding denial of attorney fees for failure to disclose the said records. We affirm. 

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.

CLEMENT, JR., P.J., M.S and ANDY D. BENNETT, J., joined.

Herbert H. Slatery, III, Attorney General & Reporter; Andrée S. Blumstein, Solicitor 

General; and Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, for 

the appellant, State of Tennessee, Department of Commerce and Insurance. 

Jackie Sharp, Jr., Nashville, Tennessee, for the appellee, Natalie Sharp.

OPINION

I. BACKGROUND

In December 2011, the Executive Director of the Board of Cosmetology 

discovered that a license technician, Latrisha Johnson (“Johnson”), had destroyed a 

number of cosmetology licensee files and had likely been collecting bribes and 

fraudulently issuing cosmetology licenses. Maliaka Bass, Deputy General Counsel for 

the General Civil Division of the Tennessee Department of Commerce and Insurance 

(“the Department”), began an investigation. As part of her investigation, General Bass 

requested an internal audit of reciprocal license applications issued from July 1, 2011, 

through February 14, 2012. On March 13, 2012, the Department notified Johnson of its 

11/09/2017
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intent to dismiss her from employment based upon the allegations. Johnson resigned two 

days later. On May 24, 2012, the Office of Internal Audit issued a final audit 

investigation report related to the missing applications. 

As a result of the final audit, the Department revoked the licenses of those it 

believed fraudulently obtained a license. The Department also brought an administrative 

action to revoke the license of Lee Phan, an owner of a nail salon, upon discovery of his 

alleged involvement in the scheme. Natalie Sharp (“Petitioner”) represents Mr. Phan. 

On January 20, 2015, Petitioner submitted a public records request to the 

Department pursuant to the Tennessee Public Records Act, codified at Tennessee Code 

Annotated section 10-7-101, et seq., in which she sought to inspect the final audit 

investigation report, as well as supporting documentation. The Department denied the 

request, citing the attorney work product and attorney-client doctrines. 

On January 31, 2015, Petitioner submitted a second public records request in 

which she sought the following:

(1) All correspondence regarding cosmetology licensing between [the 

Department] and media outlets and their representatives, including, but not 

limited to, Jennifer Kraus of News Channel 5[;] 

(2) A list of the [employee numbers for] Mark Green, Shilina Brown, 

and Roxana Gumucio[; and]

(3) All correspondence between [the Department] and witnesses 

subpoenaed for APD Case No. 12.09-12456A.

While not indicated in her request, Petitioner sought the information for purposes of 

drafting a brief in support of her request for judicial review of the administrative decision 

to revoke Mr. Phan’s license. The brief was due on March 13, 2015. 

The Department, through Anthony Glandorf, replied to the request by email, 

advising Petitioner that the request could not be completed until February 20, 2015. The 

employee numbers were provided on February 19; however, Mr. Glandorf sent additional 

emails in which he extended his estimation of the time necessary to compile the requested 

documents. Petitioner did not respond to the emails. 

On March 6, Mr. Glandorf informed Petitioner that he had compiled the witness 

correspondence, and on March 26, he informed her that the remaining records were 

available. Petitioner asked to inspect the records on March 27. Her request was denied 
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because Mr. Glandorf was out of the office on that date. Petitioner did not inspect the 

records until August 18. 

On September 30, 2015, Petitioner filed suit against the Department, requesting 

access to the final audit report and supporting documentation. She further asserted that

the Department failed to furnish a completed records request form in response to her 

January 31 request. Further, she claimed that there was an unreasonable delay in 

providing the records and that the Department improperly redacted information and 

improperly refused inspection of non-responsive records. Plaintiff sought attorney fees 

based upon the Department’s willful violations of the TPRA. 

The Department denied wrongdoing, citing the attorney work product doctrine as 

pertinent to the January 20 request. Relative to the January 31 request, the Department 

claimed that it redacted information that was privileged or non-responsive to the request. 

The case proceeded to a hearing, after which the court held that the Department 

had improperly denied the January 20 request. In so holding, the court found that the

final audit report, while produced in anticipation of litigation, was “ordinary work 

product,” that Petitioner demonstrated a substantial need for the report, that the attorney 

work product protection had been waived because details of the report had been disclosed 

in the notice of intent to dismiss Johnson, and that the report was no longer protected 

because there was no possibility of litigation concerning Johnson’s dismissal. Relative to 

the January 31 request, the court found that Petitioner failed to establish that the 

Department acted in bad faith in failing to use the correct form and in failing to produce 

the records within the original time estimation. However, the court reserved ruling on 

whether the records had been improperly redacted, finding that an in camera inspection of 

the documents was necessary to determine if the redactions were overbroad as alleged. 

Following an in camera inspection of the redacted documents, the court found that 

additional pieces of correspondence should have been provided but that the remaining 

correspondence did not merit disclosure because the correspondence consisted of 

communications between state employees or involved attorney-client communications. 

The court noted that any correspondence beyond the date of the request was also not 

subject to disclosure. The court denied attorney fees. This timely appeal followed the 

denial of post-trial motions.

II. ISSUES

We consolidate and restate the issues on appeal as follows:
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A. Whether the court erred in finding that the Department erroneously 

denied the January 20 request for the final audit report. 

B. Whether the court erred in finding that the Department was not

required to disclose the entirety of the media correspondence in response to 

the January 31 request. 

C. Whether the court erred in denying Petitioner’s request for attorney 

fees and costs. 

III. STANDARD OF REVIEW

On appeal, the factual findings of the trial court are accorded a presumption of 

correctness and will not be overturned unless the evidence preponderates against them. 

See Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo 

review with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 

(Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). 

Decisions pertaining to whether to award attorney fees should not be overturned 

absent an abuse of discretion. Under the abuse of discretion standard, this court is bound 

by the principle that the trial court “will be upheld so long as reasonable minds can 

disagree as to propriety of the decision made.” Deakins v. Deakins, E2008-00074-COAR3-CV, 2009 WL 3126245, at *7 (Tenn. Ct. App. Sept. 30, 2009) (quoting Eldridge v. 

Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). A trial court abuses its discretion when it 

“applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or 

reasoning that cause[s] an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 

243, 247 (Tenn. 1999) (citation omitted).

IV. DISCUSSION

A.

The TPRA provides, in pertinent part, as follows:

All state, county and municipal records shall, at all times during business

hours, which for public hospitals shall be during the business hours of their 

administrative offices, 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.
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Tenn. Code Ann. § 10-7-503(a)(2)(A). Disclosure of documents and papers prepared in 

anticipation of litigation or in preparation for trial are generally protected from discovery 

under the TPRA based upon the work product doctrine. Arnold v. City of Chattanooga, 

19 S.W.3d 779, 786 (Tenn. Ct. App. 1999); see generally Hickman v. Taylor, 329 U.S. 

495, 509-12 (1947) (setting forth the work product doctrine). 

Rule 26.02(3) of the Tennessee Rules of Civil Procedure codified the work 

product doctrine as follows: 

[A] party may obtain discovery of documents and tangible things otherwise 

discoverable under subdivision (1) of this rule and prepared in anticipation 

of litigation or for trial by or for another party or by or for that other party’s 

representative (including an attorney, consultant, surety, indemnitor, 

insurer, or agent) only upon a showing that the party seeking discovery has 

substantial need of the materials in the preparation of the case and is unable 

without undue hardship to obtain the substantial equivalent of the materials 

by other means. In ordering discovery of such materials when the required 

showing has been made, the court shall protect against disclosure of the 

mental impressions, conclusions, opinions, or legal theories of an attorney 

or other representative of a party concerning the litigation.

(Emphasis added.). The work product doctrine may be waived under very specific and 

narrow circumstances, namely when the use of the document is unfair and inconsistent 

with the claim of privilege or when the claim of privilege has been waived or has expired. 

As a threshold issue, Petitioner claims that the final report was not protected 

because it was not prepared in anticipation of litigation. The trial court swiftly rejected 

this argument, noting that the final audit was initiated by General Bass in anticipation of 

litigation. The record supports this finding. 

The Department first claims that the court erred in finding that the report was 

subject to disclosure because it was “ordinary work product”, not “opinion work 

product.” In determining whether the report was subject to disclosure, the court 

considered whether the report contained “mental impressions, conclusions, opinions, or 

legal theories,” thereby entitling it to a broader protection. See Boyd v. Comdata 

Network, Inc., 88 S.W.3d 203, 221 (Tenn. Ct. App. 2002) (holding that a “far stronger 

showing of necessity” is required to obtain attorney work product that contains the 

attorney’s opinions or mental impressions). The court found that the report did not 

contain such material, thereby requiring disclosure upon a proper showing. The record 

supports this finding. 
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Next, the Department argues that the court erred in finding that the attorney work 

product protection no longer applied based upon a finding of waiver or expiration. This 

was an alternative ruling issued by the trial court. First, the trial court found that 

Petitioner made a proper showing of necessity, namely that she had a substantial need for 

the report to aid in her defense of Mr. Phan and that she was unable to obtain the report 

without undue hardship. The record supports this finding as well, thereby requiring 

disclosure without need for further justification. In the event of further appellate review, 

we will address the alternative grounds relied upon by the trial court. 

Relative to waiver, some of the information contained in the report was relied 

upon as justification for the Department’s intent to dismiss Johnson. The report was also 

relied upon to revoke the licenses of those it believed fraudulently obtained a license, 

including Mr. Phan. The use of the report in this manner is inconsistent with a claim of 

privilege. Arnold, 19 S.W.3d at 787 (“Courts have universally held that a party is 

prevented from invoking the work product doctrine immunity as both sword and 

shield.”). With these considerations in mind, we conclude that the record supports the 

court’s finding of waiver. 

Relative to expiration, the court found that any protection of the report provided 

by the work product doctrine expired because there was no longer any possibility of civil 

litigation relative to Johnson given that any potential claim would be barred by the oneyear statute of limitations under the Governmental Tort Liability Act. The Department 

claimed at trial and now on appeal that the protection of attorney work product extends 

beyond the termination of litigation for which the documents were generated and can be 

claimed in subsequent litigation. We agree. “The work product doctrine is not case 

specific,” meaning that “work product that was privileged in prior litigation remains 

privileged in subsequent litigation.” Swift v. Campbell, 159 S.W.3d 565, 573 (Tenn. Ct. 

App. 2004) (citations and footnotes omitted). “This is especially true when the 

subsequent litigation is closely related to the prior litigation.” Id. (citation omitted). 

While Johnson may no longer file a claim related to her termination, Mr. Phan’s litigation 

was ongoing, at least at the time the public record request was made. However, this 

conclusion does not require reversal given Petitioner’s proper showing of substantial 

need and the Department’s waiver of the protection. 

B.

Petitioner argues that the court erred in ruling that she was not entitled to inspect 

all media correspondence in response to her January 31 request. She claims that all 

information should have been released regardless of its responsiveness to her request and 

that the Department failed to meet its burden to demonstrate that disclosure was 

unwarranted. The Department responds that the court properly ruled that Petitioner was 
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not entitled to access records that were either unresponsive or privileged 

communications. We agree with the Department. 

“Any request for inspection or copying of a public record shall be sufficiently 

detailed to enable the governmental entity to identify the specific records for inspection 

and copying.” Tenn. Code Ann. § 10-7-503(a)(4) (emphasis added).

1

 Here, Petitioner 

requested 

(4) All correspondence regarding cosmetology licensing between [the 

Department] and media outlets and their representatives, including, but not 

limited to, Jennifer Kraus of News Channel 5[;] 

(5) A list of the [employee numbers for] Mark Green, Shilina Brown, 

and Roxana Gumucio[; and]

(6) All correspondence between [the Department] and witnesses 

subpoenaed for APD Case No. 12.09-12456A.

The Department produced documents that were responsive to the request but redacted 

communications that were either non-responsive or privileged. With the exception of the 

records the court found were unlawfully withheld, the Department complied with the 

request and was not required to produce non-responsive or privileged communications

pursuant to the TPRA. 

Next, Petitioner claims that the Department’s failure to specifically identify each 

privileged communication was in violation of Rule 26.02(5) of the Tennessee Rules of 

Civil Procedure.2 These records were not submitted in response to a discovery request 

 

1

Petitioner claims that a prior version of the TPRA permitted the inspection of nonexempt records. Prior 

to a 2016 amendment to the TPRA, Section 10-7-503(a)(4) provided, 

This section shall not be construed as requiring a governmental entity or public official to 

sort through files to compile information; however, a person requesting the information 

shall be allowed to inspect the nonexempt records.

The TPRA still required a “sufficiently detailed” request to enable the production of the “specific 

records” sought. Tenn. Code Ann. § 10-7-503(a)(7)(B) (2015). The TPRA also does not prohibit the 

redaction of non-responsive or confidential information, prior to or following the 2016 amendment. 

2

“When a party withholds information otherwise discoverable under the rules by claiming that it is 

privileged or subject to protection as trial preparation material, the party shall make the claim expressly 

and shall describe the nature of the documents, communications, or things not produced or disclosed in a 

manner that, without revealing information itself privileged or protected, will enable other parties to 

assess the applicability of the privilege protection.” Tenn. R. Civ. P. 26.02(5). 
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but were produced pursuant to the TPRA, which only requires a written denial that 

includes the basis for such denial. With the above considerations in mind, we hold that 

the record supports the court’s denial of access to the non-responsive and privileged 

communications. 

C.

Petitioner claims that the court abused its discretion by refusing to award attorney 

fees. Tennessee follows the American Rule which provides that “litigants pay their own 

attorney’s fees absent a statute or an agreement providing otherwise.” State v. Brown & 

Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000); accord Taylor v. Fezell, 

158 S.W.3d 352, 359 (Tenn. 2005). “Under the American [R]ule, a party in a civil action 

may recover attorney fees only if: (1) a contractual or statutory provision creates a right 

to recover attorney fees; or (2) some other recognized exception to the American [R]ule 

applies, allowing for recovery of such fees in a particular case.” Cracker Barrel Old 

Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009). A right to recover 

attorney fees in cases filed pursuant to the TPRA was created by Tennessee Code 

Annotated section 10-7-505(g), which 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.

(Emphasis added.). Here, the Department relied upon exceptions provided by state law in 

withholding the requested information. The denial of attorney fees is also a discretionary 

matter. With these considerations in mind, we affirm the denial of attorney fees. 

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such 

further proceedings as may be necessary. Costs of the appeal are taxed one-half to the 

appellant, State of Tennessee, Department of Commerce and Insurance and one-half to 

the Appellee, Natalie Sharp.

_________________________________ 

JOHN W. McCLARTY, JUDGE