### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 29, 2001 Se ssion
ALLISON COATS v. SMYRNA/RUTHERFORD COUNTY AIRP ORT 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 r equests by the plaintiff pursuant to the Tennessee Public Records Act for certain doc uments relating to the Smyrna Airport negotiations with Wiggins Group, PLC./Pla ne Station , Inc . The pla

intiff alleged a

statutory right to inspect certain document s. Ultimately, the trial court orde red all of the documents released to the plaintiff, but ordered

correspondence addressed to or sig ned by the

SRCAA attorney placed unde r seal pending appeal. Th e pri ncipal 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
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S. and P AT RICIA J. C OTT RELL , J., joined.
Josh A. McCreary , Murfreesboro, Tennessee, for the appellant, Smyrna /Rutherford County Airport Au th or it y. Allison Coats, Smyrna, Tennessee, Pro Se.
OPINION
The appellant in this case is a munici pal airport authority loca ted at the Smyrna Airpor t known as the Smryna/Rutherfor d County Airport A

uthority (“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 tria

l court pr oceedings pro se . The app ellee is one of five organizers and directors of a community gr

oup known as Concerned Area Residents Get Org an ized (“C ARGO”). The present case arose out

of proposed developments and negotiations between the Smyrna Airport and the Wiggins Group, PLC/Plane Station, I nc. (“Wiggins”). Th e S RC AA wa s r ep re se nt ed by a private attorney in the negotiations. A letter of intent was entered between Wigg ins and the SRCAA that conta ined a confi denti alit y provisi on st ating:-2- CONFIDENTI

AL INFORMAT ION. Lessor and Less ee ackn owled ge that in connection with this letter a nd the L ease, e ach will need toprovide the other with the confidential informat

ion. Eac h agre es that it will take a ll reason able

steps to insure that eac h of its off

icers, e mployees, ag ents and a

dvisors wi ll: (a) Keep and safeguard as confide n tial all such confidential information. (b) Use such confidential information solely for the purpose s of evaluation regarding

and co mplying with the provisions of the L ease and for purposes of exercising the rights and privileg es afforded under the L ease. (c) Not

to disclose suc h confidential information except for the purposes d escribed above, or except and in compliance with the requirements set forth above or except as required by law (or any reg ulations or guidelines having the force of law) or subpoena or by leg al process or by any g overnmental or regulatory agency a u thority or body

or as required by

any stock exchang e in which shares of Lessee or any af filiate of Lessee ar

e traded or

are to be traded. No informat ion shall be deemed confide nti al information if at the time it was provided by Lessor or Lessee, as applicable, it was in the public d omain or if

it therea fter en ters the p ublic 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 propert y held by Metro/Nashville Airport

Authority. All further re

quests 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 con tact was made with the plaintiff until she filed a petition.
The plai ntiff

filed a p etition on O ctober 7 , 1999 see king to in spect ce

rtain doc uments pursuant to Tennessee Code Annotated section 10-7-101, et seq. (“A ct”). The plaintiff’s September 17, 1999 request included seven records or categories of records including: (1) A business plan of Wiggins relative

to the dev elopment

of the Smy

rna air port, (2) the sourc e of info rmation of the “Airport Facts” which was relea sed to explain Wiggins’ plans, (3) the source of information upon which the Memorandum of Understanding between the Airport Authority and Wigg ins Group was b ased, (4) i nvoices for Air Cargo Fea sibility Study and Strategic Plan prepared by Keiser & Associates and the noise study by PBS&J, (5) proposed lease agree ments by Wiggins, (6) counter-proposed

lease agreements from SRCAA to Wiggins , a nd (7) all correspondence betwee n SRCAA and Wig gins
The SRCAA released the majority of the documents, however, the proposed lease agreemen ts and all of the correspondence between SRCAA and Wiggins were not disclosed.
The Chance ry

Court for Rutherfo rd County ordere d the prop osed lea se agr eements d isclosed :-3- [T]he court finds that the Open Rec ords Act a

pplies to the Defe ndant, and that the Defendant

must immediately provide to the Plaintiff access to the following document s: Le ase Agre ements proposed by Wigg ins Group, PLC/Plane Station, Inc.; Lea se Agree

ments pro posed by the Defe ndant toWiggins Group, PLC/Plane Station, Inc.. . . . The Court furth er finds that no doc

uments ha

ve been id entifi ed which constitutes the source of information for a publication introduced known as “Airport Facts”or for a document entitled “Memorandum of Unde rstanding” between the Defendant and Wiggins Group. The Court finds that the business plan of Wiggins Group, PLC/Pla

ne Station , Inc . relativ e to deve lopment a t the Smyrna

Airport and an invoice f

or an Air Cargo Feasibility

Studyand Strat

egic Pla n have been previ ously introduced.
The trial court d enied the appellant’s request for stay pending appeal and the leases we re released to the appellee. In a memor a ndum opin ion letter submitted by the trial court, af ter concluding that the leases w ere publ ic reco rds and th at the pla

intiff wa s entitled

to them, the court stated:
The correspo nde nce perhaps should be considered differ ently. I f the Defendant claims that the correspondence between Wigg ins and the Defendant

is protected by the attorne

y- client pr

ivilege , it appea

rs that the se docume

nts ( or cop ies thereof) should be filed under seal and examined by the Court in camera , before being further considered. Initi ally , it would seem th a t the major ity o f these d

ocumentssimilarly have been co mmunicated to third parties, and thus are not legitimately subject to the attorney-c lientprivilege. 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 cou nsel and the agency probably ar

e protected by

the attorney-c lient privilege, communications betweenthe agency and a third party

are probably such to re

lease under the Open Records Act. In a later letter, the c ourt stated:
I have concluded

my review of

the correspondence submitted to me by Mr. Cope under se al . . . . While I frankly believe that cor responde nce should fall wit

hin a different category

under the open records law from leg al documents, proposed or completed, I find no legal a uthority setting

forth such a

distinction. Upon review of the correspondence, I

find nothing which wou ld justi fy an order prevent ing thei r disclosure, altho ugh agai n I will a cknow ledge that even clothed with the authority of the Court, and with the ability, at least upon initial review, t o 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 publ

ic. I n fairne ss, it does not appea r to the Court that any great amount s of information will be learned by the Plaintiff herein, or any other me mbers of the public from the examination of the corresponden ce. Th e-4-

correspondence, of course, contains nothing of a particularly sensitive nature, ye

tit ap pe ar s t o h av e b ee n w ri tt en wi th th e e xp ec ta ti on of pr iv ac y. Nonetheless, the law provides that such information is open to the public.
The trial court order ed all correspondence between the SRCAA and Wigg ins released pursuant to the Act, but granted a stay of the order relating to corre spondence addressed to or signed by t he SR CA A a tt or ne y.
The appellant maintains that the documents at issue in this app eal inclu de the pr oposed le ase agree ments by Wiggins, the counter-proposed lease a greem ents fro m SRCAA to Wig gins , and all correspondence

between SRCAA and Wigg ins. “To a void being

dismissed a s moot, . . . i ssues must

. . . remain justiciable throughout theentire c ourse of the litigation, including the appeal.” County of Shelby v. McWhe rter , 936 S.W.2d 923, 931 (Tenn. Ct. A pp. 19 96) (ci ting McIntyre v. Traughber , 884 S.W.2d 134, 1 37 (Tenn . 1994)). We find tha t the issue s relati ng to the draft leases and the correspon dence that wer

e previously

provided to the app ellee a

re moot. T

herefo re, we ta ke n o position as to the previously re leased documents. At issue on appea l are the document s under seal including correspondence addre ssed to or signed by the SRCAA attorney (“c orrespondence”).
Our review i s govern ed by the p rovis ion o f Tenn . R. Ap p. P. 13(d) that “ review of fin dings of fac t b y the trial court in civil actions shall be de novo upon the r ecord of the trial court, accompanied

by a presumption of the c orrectness of the finding, unl ess the preponderance of the evidence i s ot herwise .” However, with regar d to issuesof law, th

e standa rd of review is de novo without a p

resumptio n of corr

ectness

. Ganzevo ort v. Russ ell , 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 c onfronted with the application of the Act to correspondence signed by or addre ssed to an attorney in the posse ssion of the attorney. Public policy favors the right of citizens to

inspect public re cords. See City of Jackson v. Jackson Sun, Inc ., 1988 WL 11515, at *5 (Tenn. Ct . App. 1988). The public’s right to access recor ds of governmental entities is very broad, creating a presumption of openness. See Memphis Publ’g C o. v. City o

f Memphis , 871 S.W.2d 681, 684 ( Tenn. 199 4); see also Contemporary Media, Inc. v. City of Memph i s , No. 02A01-9807-CH00211, 1999 WL 292264, at *3 (Tenn. Ct . App. 199 9); see also Arnold v. City of Chattanooga , 19 S.W.3d 779, 785 (Tenn. Ct . App. 199 9); see also Tenn. Code Ann. §10-7-503. The Legisl ature has decl ared tha t the Act “ shall be b

roadly construe d so as to give the f ullest poss ible public accessto public records.” Tenn. Code Ann. §10-7-50 5 (d) (19 99); See also Griffin v. City of Knoxville , 821 S.W.2d 9 21, 924 (T enn. Ct. App. 1991). However, not all public records are open to inspection. Id . “The burden of proof for justification of nondisc losure of

record s sought s hall be upon the official and/or des ignee of the official of those rec ords and the justification for the nondisclosure must

be shown by a pr

eponderance of the evidence .” Tenn. Code Ann. §10-7-505 (c) (1999).-5-

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 appell ant arg ues on ap peal tha t the cor responde nce doe s not fall within the definition of public “records.”
The first issu e we add

ress is whether or not the document s in the co rrespondence a

re public records within the

meaning of the Ac t. Public r

ecords a re defined as “a

ll docume nts, pape rs, lette rs,

. . . or ot her mate

rial . . . ma

de or re ceived p

ursuant t o law or o

rdinanc e or in co nnection with th e transaction of official busine ss by a ny gove rnmental agency .” Tenn. Code Ann. §10-7-301 (6) (1999)

. Tenness e e Code Annotated § 10-7-503 provides “all state, county and municipal records . . . except any

public documents authorized to be destroyed . . . shall at a ll times, du

ring bus iness hours, be open for personal inspection . . . and those in charge of such rec ords 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) sta ting that docu

ments are available ‘unless ot

herwise provided by state law ’ qualifies the presumption of openness by creating a general exception for other state law s protecting documents. Arnold v. City of Chattanooga , 19 S. W.3d 779, 7 85 (Te nn. C t. App . 1999 ) (cit ing Ballard v. Herzke , 924 S.W.2d 652, 662 (Ten n. 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 rece

ived purs uant t o law or ordinance or in connection with the transaction of of ficial business by any

governmental agency ,’ ” and “[a]pplication of this test requires an examination of the to t ality of the circ

umstances.” 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

definitio n of public record.
Aside from the general exception, T. C.A. 1 0-7-504, and numerous other statutes cross-referenced

create classes of confidential records not subject to inspection. See Griff in , 821 S.W.2d 921, 923. Among the exceptions is one for the work product of the Attorney General and Reporter or any attorne

y thereunde

r. Arnold , 19 S.W.3d 779, 785. Correspondence addressed to or signed by a

n attorney re

tained by a public e

ntity is not specifically

excluded by the statutes.
An entity cannot protect public records under the Act by shiel ding t hem behind a priva te attorney or other wiseby p lacing

them in the

possessio n of a pri vate ent ity. If so mething

is a public record, it remains a public record regar dless of its physica

l locatio n. See Creative Restaurants v. City of Me mphis , 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 cor respondence falls with in th e broad exception of “otherwise provided by state law” contained in the Act. See-6-

Tenn. Code Ann. §10-7-503(a). “I t is certainly true that the L egislature is forbidden from destroy ing an attorney’sability to fulfill his ethical duties to a client.” Memphis Publ’g Co. , 871 S.W.2d 681, 688. We recog

nize the c ompeting

interest s at stake

in this lawsuit between the attorney’s duty and the right of the public to access public recor ds.
The competing interests have been ad dress ed prev ious ly concern ing th e Open M eetin gs 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 Meeting s Act whic

h prohibit ed a publi c body from h oldi ng priv ate me etings could not be construed to prevent a public body from meeting in pri vat e wi th it s at to rne y to d is cus s pe ndi ng l it iga ti on. If the statut e were so constr

ued, we s tated, the attorney ’s ability to fulfill his duty not

to revea l its client’s secrets would be destroy ed.

. . . . W e emphasize, however, that any attempt to discover material in t h e possession of a governmental attorney that actually constitutes work product will be unsucc essful for the a

bove-me ntioned r easons. T

herefo re, we e xpressly invite th e Legislature

to remed y the underinclusive

ness of §10- 7-504 by excepting the work product of county a

nd municipal attorneys fr om public view.
Id . at 688-89.
The specific issue in the present case concerns Canon 4 and the g eneral exception contained in the Act. Canon 4 provides “[a] lawyer should pre serve the confidences and secrets of a client.” Sup. Ct. R. 8, Canon 4.
‘Confidence’ refers to information protected b y the attorney-c lient privilege under applica ble law, and ‘secret’ refer s to other info rmat ion gained in the professional relation ship that the client has requested be held inviolate or the disclosure of which would be e

mbarra ssing or

would be likely

to be detr

imental to

the clien t. (B ) E xc ep t w he n p er mi tt ed un de r D R 4 -1 01 (C ), a l aw yer sh al l n ot kn ow in gl y: (1) Reve al a conf

idence o r secre t of a clie nt.

. . . . (C) A lawye

r 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

statemen t to Suprem

e Court Rul e 8 state s:-7- The Cano ns are statement of axiomatic norms, expressing in general ter m s the standards of professional conduct expected of lawy ers in their re

lationship s with the public, with the legal sy stem, and with the legal profession. . . . The Ethical Consider ation s are aspirational in character a nd represent the objectives toward which every member of the profession should strive. . . . The Disciplin ary

Rules, unli

ke the Eth ical Consi deratio ns, are mandator y in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer c an fall without being subject to disciplinary action. Sup. Ct. R. 8 Co de of Prof essional Responsib ility , Prelimina ry Statemen t.
In Arnold , the Eastern Section of this Court concluded that work products of an attorney

for a gover nmental e ntity were not subject t

o disclosu re under the Public

Records Act, if the privi lege were not waived. The Court stated:

The Public Records Act is to be broadly c onstrued 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 stat

e law. Just as impor

tant as pu blic access to government records, is the right of a client to effec tive assis ta nc e of counsel. Canon 4 of the Code of Professional Re sp on si bi li ty, ma nd at es th at an at to rn ey n ot be tr ay the c onfidenc es of his c lient. The primary

purpose of the work p roduc t priv ilege is to assure that an attorney is not inhibited in his rep

resenta tion of his c lient by the fea r his file s will be op en to scrutiny upon dema

nd. Moreo ver, if

the client were aware that its secre ts, embodied in the attorney’ s internal memoran dum or othe r docume nt, would a

ll be subject to public scrutiny , it would li mit the clie nt’s willin gness to

speak openly with his or her attorney and would

consequ ently

affect the attorney ’s ability to represent his or he r client.
Arnold , 19 S.W.3d 779, 787.
In the present case, we are not dea ling with the work pro duct doct rin e. The work product doctrine protects document s of an attor ney prepar ed by the attor ney , or anoth

er in his b ehalf, i n preparationfor trial or anticipation of litigation. Id . at 783. F urther, the appe

llant is not argui ng attorney-c lientprivileg e, having abandoned it in ar

gument. The fact that records are mer ely signed by or writte n to an att orney is not sufficient rea son to bloc k publicaccess. Even though the public’s right of inspection is broa

d, it is not a

bsolute a nd importa

nt counte rvailing interest s can sometimes outweigh the right and defea t the presumption of openness if provided by law.
The Supreme Court Rules are the law of thi s State and , theref ore, ar e include d in the phr

ase ‘unless oth erwise pr ovided by State law.’ Te nn. Code Ann. §10-7-503(a). The mandatory disciplinary

rules state that “[a] lawyer may reve al confidences and secrets when re quired by law or court order. DR 4-101(C)(2).” “I t is certainly true that

the Legislature is for

bidden from destroying-8-

an attorney’s a

bility to fulfill his ethical duties to a client.” Memphis Publ’g Co., 871 S.W.2d at 688. Thus, an ethic al du ty of an attorne y in The Code of Profe ssional Responsibility may create an exception to the Act. Accordingly , Canon 4 may exempt certain c onfidences and secrets from inspection und er t he A ct. In Combined C ommunica tions, Inc

. v. Solid W

aste 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 c ir cumstanc es, communications from an a ttorney to his cli e nt that mee

t the def inition 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 s olely based upon public informa tion rather than confidential information.”
Combined

Communic

ations, In c. v. Soli

d Waste Region Bo ard , No. 01-A-01-9310-CN00441, 1994 WL 123831, at *2 (Tenn. Ct. App. April 13, 1994) (citi ng Bryan v. State of Tennessee , 848 S.W. 2d 72 (Tenn.Crim.App. 1992)).
Under our exerc ise of re

view, the corres pondenc e that is th e subjec t of this lit

igation does notcontain any infor

mation of a confidential or secret nature. I t cannot be said that as a

general rule, Rule 4 applies to all documents written to a n attorne y 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 re asoning

by t he Wester

n Section o f this Cour

t: 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 origina l documen

ts initially filed in a sealed e nvelope with the ch ancery court and subsequ ently

transmitted to the cl erk of th is Courtin the same man

ner shall remain se aled and closed under the j urisdicti on of the C lerk of th is Courtuntil the time for filing an Application for Permission to Appeal to the supreme Court has expired and the ma

ndate of this Court h as issued

or, in th e event Ap plication for Perm ission to Appeal is made to the Supreme Court, until that Application is acted upon by that Court and a final judgmen t entere d by

the Supre

me Court. City of Jackson v. Jackson Sun, Inc ., 1988 WL 11515, at *6 (Tenn. Ct. App. 1988). The judgment of the

trial cou rt is aff irmed with

costs ass essed to A

ppellant

.

____________________________________ WILL IAM B. CAI

N, JUDGE