IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 29, 2001 Session

ALLISON COATS v. SMYRNA/RUTHERFORD 

COUNTY AIRPORT AUTHORITY

 Appeal from the Chancery Court for Rutherford County

No. 99MI-1476 Robert E. Corlew, III, Chancellor

No. M2000-00234-COA-R3-CV - Filed December 13, 2001

This action was brought by the plaintiff against the defendant following two requests by the plaintiff

pursuant to the Tennessee Public Records Act for certain documents relating to the Smyrna Airport

negotiations with Wiggins Group, PLC./Plane Station, Inc. The plaintiff alleged a statutory right to

inspect certain documents. Ultimately, the trial court ordered all of the documents released to the

plaintiff, but ordered correspondence addressed to or signed by the SRCAA attorney placed under

seal pending appeal. The principal issue on this appeal is whether the appellee is entitled to the

documents under seal pursuant to Tennessee Code Annotated section 10-7-503.

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

WILLIAM B.CAIN, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S. and

PATRICIA J. COTTRELL, J., joined.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellant, Smyrna/Rutherford County Airport

Authority.

Allison Coats, Smyrna, Tennessee, Pro Se.

OPINION

The appellant in this case is a municipal airport authority located at the Smyrna Airport

known as the Smryna/Rutherford County Airport Authority (“SRCAA”). The appellee is a resident

of Smyrna and, by the date of the appellate court hearing, became a licensed attorney. The appellee

appeared in the trial court proceedings pro se. The appellee is one of five organizers and directors

of a community group known as Concerned Area Residents Get Organized (“CARGO”). The

present case arose out of proposed developments and negotiations between the Smyrna Airport and

the Wiggins Group, PLC/Plane Station, Inc. (“Wiggins”). The SRCAA was represented by a private

attorney in the negotiations. A letter of intent was entered between Wiggins and the SRCAA that

contained a confidentiality provision stating:
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CONFIDENTIAL INFORMATION. Lessor and Lessee acknowledge that in

connection with this letter and the Lease, each will need to provide the other with the

confidential information. Each agrees that it will take all reasonable steps to insure

that each of its officers, employees, agents and advisors will: 

(a) Keep and safeguard as confidential all such confidential

information.

(b) Use such confidential information solely for the purposes of

evaluation regarding and complying with the provisions of the Lease and for

purposes of exercising the rights and privileges afforded under the Lease.

(c) Not to disclose such confidential information except for the

purposes described above, or except and in compliance with the requirements set

forth above or except as required by law (or any regulations or guidelines having the

force of law) or subpoena or by legal process or by any governmental or regulatory

agency authority or body or as required by any stock exchange in which shares of

Lessee or any affiliate of Lessee are traded or are to be traded. No information shall

be deemed confidential information if at the time it was provided by Lessor or

Lessee, as applicable, it was in the public domain or if it thereafter enters the public

domain other than through the breach of these confidentiality provisions. 

On April 6, 1999, the plaintiff and Mr. King, the director of CARGO, entered the SRCAA

office and requested certain documents concerning correspondence relating to a lien on the airport

property held by Metro/Nashville Airport Authority. All further requests were referred to SRCAA’s

private attorney. The plaintiff was granted two of the three requested documents. On September 17,

1999, the plaintiff went to the SRCAA office requesting additional documents. She left a written

request, address, and phone number at the office. No further contact was made with the plaintiff

until she filed a petition. 

The plaintiff filed a petition on October 7, 1999 seeking to inspect certain documents

pursuant to Tennessee Code Annotated section 10-7-101, et seq. (“Act”). The plaintiff’s September

17, 1999 request included seven records or categories of records including: (1) A business plan of

Wiggins relative to the development of the Smyrna airport, (2) the source of information of the

“Airport Facts” which was released to explain Wiggins’ plans, (3) the source of information upon

which the Memorandum of Understanding between the Airport Authority and Wiggins Group was

based, (4) invoices for Air Cargo Feasibility Study and Strategic Plan prepared by Keiser &

Associates and the noise study by PBS&J, (5) proposed lease agreements by Wiggins, (6)

counter-proposed lease agreements from SRCAA to Wiggins , and (7) all correspondence between

SRCAA and Wiggins 

The SRCAA released the majority of the documents, however, the proposed leaseagreements

and all of the correspondence between SRCAA and Wiggins were not disclosed.

TheChancery Court for Rutherford County ordered the proposed lease agreements disclosed:
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[T]he court finds that the Open Records Act applies to the Defendant, and

that the Defendant must immediately provide to the Plaintiff access to the following

documents: LeaseAgreements proposed by Wiggins Group, PLC/Plane Station, Inc.;

Lease Agreements proposed by the Defendant to Wiggins Group, PLC/Plane Station,

Inc.. . . . The Court further finds that no documents have been identified which

constitutes the source of information for a publication introduced known as “Airport

Facts” or for a document entitled “Memorandum of Understanding” between the

Defendant and Wiggins Group. The Court finds that the business plan of Wiggins

Group, PLC/Plane Station, Inc. relative to development at the Smyrna Airport and

an invoice for an Air Cargo Feasibility Study and Strategic Plan have been previously

introduced.

The trial court denied the appellant’s request for stay pending appeal and the leases were

released to the appellee. In a memorandum opinion letter submitted by the trial court, after

concluding that the leases were public records and that the plaintiff was entitled to them, the court

stated: 

The correspondence perhaps should be considered differently. If the Defendant

claims that the correspondence between Wiggins and the Defendant is protected by

the attorney-client privilege, it appears that these documents (or copies thereof)

should be filed under seal and examined by the Court in camera, before being further

considered. Initially, it would seem that the majority of these documents similarly

have been communicated to third parties, and thus are not legitimately subject to the

attorney-client privilege. Nonetheless, there may be an element of expectation of

privacy in a letter not present in the draft of a contract. Although the letters which

are directly between counsel and the agency probably are protected by the

attorney-client privilege, communications between the agency and a third party are

probably such to release under the Open Records Act. 

In a later letter, the court stated:

I have concluded my review of the correspondence submitted to me by Mr.

Cope under seal . . . . While I frankly believe that correspondence should fall within

a different category under the open records law from legal documents, proposed or

completed, I find no legal authority setting forth such a distinction. Upon review of

the correspondence, I find nothing which would justify an order preventing their

disclosure, although again I will acknowledge that even clothed with the authority of

the Court, and with the ability, at least upon initial review, to keep secret all that I

see, I continue to have the feeling that a sense of privacy is being invaded when the

correspondence is made public. In fairness, it does not appear to the Court that any

great amounts of information will be learned by the Plaintiff herein, or any other

members of the public from the examination of the correspondence. The
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correspondence, of course, contains nothing of a particularly sensitive nature, yet it

appears to have been written with the expectation of privacy.

Nonetheless, the law provides that such information is open to the public. 

The trial court ordered all correspondence between the SRCAA and Wiggins released

pursuant to the Act, but granted a stay of the order relating to correspondence addressed to or signed

by the SRCAA attorney.

The appellant maintains that the documents at issue in this appeal include the proposed lease

agreements by Wiggins, the counter-proposed lease agreements from SRCAA to Wiggins , and all

correspondence between SRCAA and Wiggins. “To avoid being dismissed as moot, . . . issues must

. . . remain justiciable throughout the entire course of the litigation, including the appeal.” County

of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996) (citing McIntyre v. Traughber,

884 S.W.2d 134, 137 (Tenn. 1994)). We find that the issues relating to the draft leases and the

correspondence that were previously provided to the appellee are moot. Therefore, we take no

position as to the previously released documents. At issue on appeal are the documents under seal

including correspondence addressed to or signed by the SRCAA attorney (“correspondence”). 

Our review is governed by the provision of Tenn. R. App. P. 13(d) that “review of findings

of fact by the trial court in civil actions shall be de novo upon the record of the trial court,

accompanied by a presumption of the correctness of the finding, unless the preponderance of the

evidence is otherwise.” However, with regard to issues of law, the standard of review is de novo

without a presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997);

Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn.1996).

In the present case, we are confronted with the application of the Act to correspondence

signed by or addressed to an attorney in the possession of the attorney. Public policy favors the right

of citizens to inspect public records. See City of Jackson v. Jackson Sun, Inc., 1988 WL 11515, at

*5 (Tenn. Ct. App. 1988). The public’s right to access records of governmental entities is very

broad, creating a presumption of openness. See Memphis Publ’g Co. v. City of Memphis, 871

S.W.2d 681, 684 (Tenn. 1994); see also Contemporary Media, Inc. v. City of Memphis, No.

02A01-9807-CH00211, 1999 WL 292264, at *3 (Tenn. Ct. App. 1999); see also Arnold v. City of

Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 1999); see also Tenn. Code Ann. §10-7-503. The

Legislature has declared that the Act “shall be broadly construed so as to give the fullest possible

public access to public records.” Tenn. Code Ann. §10-7-505 (d) (1999); See also Griffin v. City of

Knoxville, 821 S.W.2d 921, 924 (Tenn. Ct. App. 1991). However, not all public records are open

to inspection. Id. “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.” Tenn. Code Ann. §10-7-505 (c)

(1999). 
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The appellee maintains that the correspondence sought is within the purview of the Act and

the appellant maintains that the correspondence at issue signed by or received by an attorney is not

subject to the Act. First, the appellant argues on appeal that the correspondence does not fall within

the definition of public “records.”

The first issue we address is whether or not the documents in the correspondence are public

records within the meaning of the Act. Public records are defined as “all documents, papers, letters,

. . . or other material . . . made or received pursuant to law or ordinance or in connection with the

transaction of official business by any governmental agency.” Tenn. Code Ann. §10-7-301 (6)

(1999). Tennessee Code Annotated § 10-7-503 provides “all state, county and municipal records

. . . except any public documents authorized to be destroyed . . . shall at all times, during business

hours, be open for personal inspection . . . and those in charge of such records shall not refuse such

right of inspection . . . unless otherwise provided by state law.” (Emphasis added).

The final clause of Tennessee Code Annotated section 10-7-503(a) stating that documents

are available ‘unless otherwise provided by state law’ qualifies the presumption of openness by

creating a general exception for other state laws protecting documents. Arnold v. City of

Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 1999) (citing Ballard v. Herzke, 924 S.W.2d 652,

662 (Tenn. 1996); Appman v. Worthington, 746 S.W.2d 165, 167 (Tenn. 1987)). 

“The proper test in determining whether material is a public record remains whether it was

‘made or received pursuant to law or ordinance or in connection with the transaction of official

business by any governmental agency,’ ” and “[a]pplication of this test requires an examination of

the totality of the circumstances.” Id at 924 (citing Tenn. Code Ann. §10-7-301). The

correspondence was ‘made’ in the course of the entity’s official business in connection with official

business. In an effort to comport with the Legislature’s mandate that the Act be construed broadly

as possible, we take the position that the correspondence meets the expansive definition of public

record. 

Aside from the general exception, T.C.A. 10-7-504, and numerous other statutes

cross-referenced create classes of confidential records not subject to inspection. See Griffin, 821

S.W.2d 921, 923. Among the exceptions is one for the work product of the Attorney General and

Reporter or any attorney thereunder. Arnold, 19 S.W.3d 779, 785. Correspondence addressed to or

signed by an attorney retained by a public entity is not specifically excluded by the statutes. 

An entity cannot protect public records under the Act by shielding them behind a private

attorney or otherwise by placing them in the possession of a private entity. If something is a public

record, it remains a public record regardless of its physical location. See Creative Restaurants v.

City of Memphis, 795 S.W.2d 672, 679 (Tenn. Ct. App. 1990).

The appellant argues that the Act is inconsistent with Canon 4. The appellant is not asking

this Court to declare the Act unconstitutional. Rather, the appellant argues that the correspondence

falls within the broad exception of “otherwise provided by state law” contained in the Act. See
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Tenn. Code Ann. §10-7-503(a). “It is certainly true that the Legislature is forbidden from destroying

an attorney’s ability to fulfill his ethical duties to a client.” Memphis Publ’g Co., 871 S.W.2d 681,

688. We recognize the competing interests at stake in this lawsuit between the attorney’s duty and

the right of the public to access public records. 

The competing interests have been addressed previously concerning the Open Meetings Act:

In Smith County Educ. Ass’n v. Anderson, 676 S.W.2d 328 (Tenn. 1984), we

held that a provision of the Tennessee Open Meetings Act which prohibited a public

body from holding private meetings could not be construed to prevent a public body

from meeting in private with its attorney to discuss pending litigation. If the statute

were so construed, we stated, the attorney’s ability to fulfill his duty not to reveal its

client’s secrets would be destroyed. 

. . . .

We emphasize, however, that any attempt to discover material in the

possession of a governmental attorney that actually constitutes work product will be

unsuccessful for the above-mentioned reasons. Therefore, we expressly invite the

Legislature to remedy the underinclusiveness of §10-7-504 by excepting the work

product of county and municipal attorneys from public view.

Id. at 688-89. 

The specific issue in the present case concerns Canon 4 and the general exception contained

in the Act. Canon 4 provides “[a] lawyer should preserve the confidences and secrets of a client.”

Sup. Ct. R. 8, Canon 4. 

‘Confidence’ refers to information protected by the attorney-client privilege under

applicable law, and ‘secret’ refers to other information gained in the professional

relationship that the client has requested be held inviolate or the disclosure of which

would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of a client.

. . . .

(C) A lawyer may reveal:

. . . .

(2) Confidences or secrets when permitted under Disciplinary Rules or required by

law or court order. 

Id. DR 4-101 (Emphasis added).

The preliminary statement to Supreme Court Rule 8 states:
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The Canons are statement of axiomatic norms, expressing in general terms

the standards of professional conduct expected of lawyers in their relationships with

the public, with the legal system, and with the legal profession. . . .

The Ethical Considerations are aspirational in character and represent the

objectives toward which every member of the profession should strive. . . . 

The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in

character. The Disciplinary Rules state the minimum level of conduct below which

no lawyer can fall without being subject to disciplinary action. 

Sup. Ct. R. 8 Code of Professional Responsibility, Preliminary Statement.

In Arnold, the Eastern Section of this Court concluded that work products of an attorney for

a governmental entity were not subject to disclosure under the Public Records Act, if the privilege

were not waived. The Court stated:

The Public Records Act is to be broadly construed so as to give the fullest

possible public access to public records. T.C.A. §10-7-505(d). Yet, that Act creates

exception for documents made privileged or protected from disclosure by other state

law. Just as important as public access to government records, is the right of a client

to effective assistance of counsel. Canon 4 of the Code of Professional

Responsibility, mandates that an attorney not betray the confidences of his client.

The primary purpose of the work product privilege is to assure that an attorney is not

inhibited in his representation of his client by the fear his files will be open to

scrutiny upon demand. Moreover, if the client were aware that its secrets, embodied

in the attorney’s internal memorandum or other document, would all be subject to

public scrutiny, it would limit the client’s willingness to speak openly with his or her

attorney and would consequently affect the attorney’s ability to represent his or her

client. 

Arnold, 19 S.W.3d 779, 787. 

In the present case, we are not dealing with the work product doctrine. The work product

doctrine protects documents of an attorney prepared by the attorney, or another in his behalf, in

preparation for trial or anticipation of litigation. Id. at 783. Further, the appellant is not arguing

attorney-client privilege, having abandoned it in argument. The fact that records are merely signed

by or written to an attorney is not sufficient reason to block public access. Even though the public’s

right of inspection is broad, it is not absolute and important countervailing interests can sometimes

outweigh the right and defeat the presumption of openness if provided by law. 

The Supreme Court Rules are the law of this State and, therefore, are included in the phrase

‘unless otherwise provided by State law.’ Tenn. Code Ann. §10-7-503(a). The mandatory

disciplinary rules state that “[a] lawyer may reveal confidences and secrets when required by law or

court order. DR 4-101(C)(2).” “It is certainly true that the Legislature is forbidden from destroying
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an attorney’s ability to fulfill his ethical duties to a client.” Memphis Publ’g Co., 871 S.W.2d at 688.

Thus, an ethical duty of an attorney in The Code of Professional Responsibility may create an

exception to the Act. Accordingly, Canon 4 may exempt certain confidences and secrets from

inspection under the Act. In Combined Communications, Inc. v. Solid Waste Region Board, No. 01-

A-01-9310-CN00441, 1994 WL 123831, at *2 (Tenn. Ct. App. April 13, 1994), this Court stated:

The courts of this state have held that under some circumstances,

communications from an attorney to his client that meet the definition of a public

record may be exempt from the provisions of Tenn. Code Ann. §10-7-503. However,

“the privilege does not extend to communications from an attorney to a client when

they contain advice solely based upon public information rather than confidential

information.”

Combined Communications, Inc. v. Solid Waste Region Board, No. 01-A-01-9310-CN00441, 1994

WL 123831, at *2 (Tenn. Ct. App. April 13, 1994) (citing Bryan v. State of Tennessee, 848 S.W. 2d

72 (Tenn.Crim.App. 1992)).

Under our exercise of review, the correspondence that is the subject of this litigation does

not contain any information of a confidential or secret nature. It cannot be said that as a general rule,

Rule 4 applies to all documents written to an attorney or signed by an attorney. The Rule cannot

have such a blanket application. 

After examining the totality of the circumstances, we affirm the trial court and find that the

correspondence addressed to or signed by the SRCAA attorney should be provided to the appellee.

With regard to the documents under seal, we order that the documents remain under seal for

the well-stated reasoning by the Western Section of this Court:

Recognizing that the appellate process does not end with this Court, in order to prevent the

issue from becoming moot until the judicial process is completed, the original documents initially

filed in a sealed envelope with the chancery court and subsequently transmitted to the clerk of this

Court in the same manner shall remain sealed and closed under the jurisdiction of the Clerk of this

Court until the time for filing an Application for Permission to Appeal to the supreme Court has

expired and the mandate of this Court has issued or, in the event Application for Permission to

Appeal is made to the Supreme Court, until that Application is acted upon by that Court and a final

judgment entered by the Supreme Court.

City of Jackson v. Jackson Sun, Inc., 1988 WL 11515, at *6 (Tenn. Ct. App. 1988). 

The judgment of the trial court is affirmed with costs assessed to Appellant.

____________________________________

WILLIAM B. CAIN, JUDGE