IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 13, 2009 Session

JOHN P. KONVALINKA v. CHATTANOOGA-HAMILTON

COUNTY HOSPITAL AUTHORITY

Appeal from the Chancery Court for Hamilton County

No. 08-0334 Howell N. Peoples, Chancellor

No. E2008-02091-COA-R3-CV - FILED JUNE 2, 2009

John P. Konvalinka (“Petitioner”) filed a petition for access to public records seeking access to

certain records in the possession of the Chattanooga-Hamilton County Hospital Authority (“the

Hospital” or “Erlanger”). These documents were created pursuant to the provisions of a Corporate

Integrity Agreement entered into between the Hospital and the federal Office of Inspector General

of the Department of Health and Human Services following an investigation into allegations of

illegal conduct by the Hospital. The Hospital filed a motion for protective order claiming the

requested documents were confidential and protected from disclosure pursuant to: (1) the Tennessee

Public Records Act; (2) the federal Freedom of Information Act; and/or (3) federal regulations

implemented by the Department of Health and Human Services. The Trial Court found that the

documents were protected from disclosure by the Tennessee Public Records Act; specifically, Tenn.

Code Ann. § 10-7-504(a)(2)(A). This finding rendered moot whether the documents were protected

from disclosure pursuant to either or both the Freedom of Information Act or the regulations

developed by the Department of Health and Human Services. Petitioner appeals. We hold that the

documents at issue are not protected from disclosure by the Tennessee Public Records Act, and the

judgment of the Trial Court holding otherwise is vacated. We remand this case to the Trial Court

for a determination of whether the documents at issue are protected from disclosure pursuant to

applicable federal law. 

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

Chancery Court Vacated; Case Remanded

D.MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J., and

CHARLES D. SUSANO, JR., J., joined.

Mathew D. Brownfield and Mark W. Litchford, Chattanooga, Tennessee, for the Appellant, John

P. Konvalinka. 

Joseph R. White, Fred H. Moore, and James H. Payne, Chattanooga, Tennessee, for the Appellee,

Chattanooga-Hamilton County Hospital Authority.
 Request No. 17 and Request No. 41 appear to request the same information. In his brief on appeal, Petitioner

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acknowledges that these two requests do in fact request the same documents. 

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OPINION

Background

The documents at issue in this Public Records Act case have their genesis from a

federal and state investigation surrounding allegations that the Hospital submitted false claims to

Medicare and Medicaid and improperly paid remuneration to physicians for referring patients to the

Hospital. The Hospital eventually entered into settlement agreements with both the federal Office

of Inspector General of the Department of Health and Human Services and the State of Tennessee.

In addition to the settlement agreements, the Hospital entered into a Corporate Integrity Agreement

with the Office of Inspector General of the Department of Health and Human Services. The

Corporate Integrity Agreement was designed to promote compliance with the applicable statutes and

regulations. Among other things, the Corporate Integrity Agreement required the Hospital to

establish and maintain a compliance program, which included the creation of a compliance

committee. 

In March 2008, Petitioner served a request for access to public records on the Hospital

seeking access to fifty-three separate groups of documents. Only three of the fifty-three requests are

at issue in this appeal. These three requests are:

(12) Copies of all compliance reports submitted to the Compliance

Committee since the 2005 settlement between Chattanooga

Hamilton County Hospital Authority and the United States

Federal Government/United States Justice Department; . . . 

(17) Copies of all minutes from all meetings of the Erlanger

Medical Center’s Compliance Committee for the past four

years; . . . [and]

(41) Copies of all minutes from all meetings of Erlanger’s

Compliance Committee for the past four (4) years. . . .1

After the Hospital refused to provide these three groups of requested documents,

Petitioner filed a Petition for Access to Public Records with the Trial Court. Petitioner claimed that

the Hospital lacked a good faith basis upon which to deny the public records request. Petitioner

requested the Trial Court issue a show-cause order requiring the Hospital to appear and show cause

why the petition should not be granted. Petitioner further requested the Trial Court enter an order

requiring the Hospital to produce the records and award Petitioner his attorney fees. 

The Hospital filed a Motion for Protective Order pertaining to the three document

requests. The Hospital claimed that the records at issue were protected from disclosure pursuant to
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Tenn. Code Ann. §§ 10-7-504(a)(2)(A) and (a)(5)(A). In addition, the Hospital claimed that several

federal statutes and regulations protected the disclosure of these documents, including 5 U.S.C. §§

552(b)(4) and (b)(7), as well as various subparts of 45 C.F.R. §§ 5.65(b)(4) and 5.68. 

Petitioner responded to the motion for protective order, asserting that several of the

statutes and regulations cited by the Hospital did not apply to the requested documents and, even if

they did, they did not operate to prevent disclosure of the requested documents. 

Following a hearing on the motion for protective order, the Trial Court entered a

detailed Memorandum Opinion and Order. According to the Trial Court:

In October 2005, [the Hospital] entered into a Corporate

Integrity Agreement (“CIA”) and a Settlement Agreement with the

Office of the Inspector General of the Department of Health and

Human Services (“OIG”). . . . [The Hospital] also at this time entered

into a Settlement Agreement with the State of Tennessee. The CIA

requires heightened internal scrutiny and investigation of potential

problems, detailed reporting of the results of these investigations to

OIG, and the detailed notification of OIG of any “investigation or

legal proceeding . . . brought by a governmental entity . . . involving

an allegation that Erlanger has committed a crime or had engaged in

fraudulent activities.”

* * *

A. Relevant Terms of the CIA

Under the CIA, [the Hospital] is required to form a

Compliance Committee to monitor compliance with the CIA and

report directly to the OIG, as well as establish a Disclosure Program

to allow for employee disclosure of potential issues with or questions

about [the Hospital’s] compliance with civil, criminal or

administrative law. . . . The CIA required Erlanger to create a Code

of Conduct setting forth, among other things, “the requirement that

all of [Erlanger’s officers, directors, agents and employees] shall be

expected to report to the Compliance Officer . . . suspected violations

of any Federal health care program requirements or of Erlanger’s own

Policies and Procedures.” Likewise, the Code of Conduct had to

contain a “commitment to nonretaliation and to maintain, as

appropriate, confidentiality and anonymity with respect to such

disclosures.” . . . (emphasis added)

The Disclosure Program under the CIA had to allow for a

mechanism through which individuals could report, with an

expectation of anonymity and confidentiality, any potential violations
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of law. . . . Like the Compliance Committee’s Code of Conduct, the

Disclosure Program had to emphasize the protection of “anonymous

communications for which appropriate confidentiality shall be

maintained.” (emphasis added) These anonymous and confidential

reports, once received via the Disclosure Program, were given to the

Compliance Officer. The Compliance Officer is required under the

CIA to perform an investigation of all such reports, and to keep a log

containing the reports themselves along with “the status of the

respective internal reviews, and any corrective action taken. . . .”

The CIA also requires that Erlanger submit annual reports to

OIG “with respect to the status of, and findings regarding, Erlanger’s

compliance activities. . . .” These reports must contain a variety of

information, including a summary of “Reportable Events” (e.g.

potential violations of law), and corrective action taken in response

to a violation or other issue, a summary of the Disclosure Program’s

log, a summary of “any ongoing investigation or legal proceeding”

against the hospital that it is required to report under the CIA. . . .

B. Text and Purpose of the Statutory Exclusions

Under Tenn. Code Ann. § 10-7-503(a), “all state, county and

municipal records . . . shall at all times . . . be open for personal

inspection by any citizen of Tennessee, and those in charge of such

records shall not refuse such right of inspection to any citizen, unless

otherwise provided by state law.” The statute does, however, limit its

otherwise broad applicability with a number of exceptions for certain

confidential records. One of the most pertinent exceptions in relation

to this case provides that, “[a]ll investigative records of . . . the office

of inspector general . . . shall be treated as confidential and shall not

be open to inspection by members of the public. The information

contained in such records shall be disclosed to the public only in

compliance with a subpoena or an order of a court of record.” Tenn.

Code Ann. § 10-7-504(a)(2)(A).

[The Hospital] argues that this exception applies to the three

records requests at issue here because there records were “generated,

compiled and reported pursuant to the requirements of the CIA as part

of the ongoing investigation by and settlement negotiations with the

OIG.” . . . [The Hospital] also asserts it was “performing

investigative functions on behalf of and at the request of the OIG,”

and that the products of these investigative activities are clearly

exempted from disclosure under the statute. . . . Petitioner, on the

other hand, argues merely that this exception is inapplicable to the

requested records in this case because [the Hospital] “cites no
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authority for its position that it is now an agent of the OIG,” and is

therefore not entitled to confidentiality protections under the

statute. . . .

While it is true that [the Hospital] does not provide any

evidence or argument to support the existence of an agency

relationship, Petitioner fails to respond to the basic import of [the

Hospital’s] argument here: viz. that the compliance records at issue

are in effect “investigative records of the OIG” under the plain

language of the statute. [The Hospital], under the CIA, is responsible

with providing compliance and other investigative records to the

OIG. The statute clearly protects such documents – “all investigative

records . . . of the office of the inspector general” – as confidential,

and exempts them from public disclosure. 

If the statute did not so provide, and instead only protected

recordsin the possession of the OIG (such requirement is not in Tenn.

Code Ann. § 10-7-504(a)(2)(A)), the protections provided by the

statute would be moot. Parties seeking the production of otherwise

protected records in the hands of the OIG could simply by-pass the

OIG altogether and demand records from all those public entities that

provide the OIG with the contents of their investigative records.

Surely the legislature could not have intended such illusory

confidentiality protections for those categories of records they chose

specifically to exempt from the broad applicability of the statute. 

C. Confidentiality and the Efficacy of the CIAs

In further support of its position that there is good cause to

protect as confidential the contents of the Compliance Committee

reports, and the records of the Committee meeting minutes, [the

Hospital] cites a federal case from the Northern District of California

where the district court elaborates upon the confidential nature of the

CIA documents:

Once an entity enters into a CIA, the CIA typically

requires the subject entity to adopt measures designed

to promote compliance, and to submit annual reports

and documents addressing the requirements of the

CIA, including the results of audits and reviews.

These types of documents often include confidential

or proprietary information. Indeed, a frequent

concern raised by the subject entities during

negotiation of the CIA is what type of protection the
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government will extend to the subject entity’s

confidential and proprietary information.

Hersh & Hersh v. U.S. Dept. of Health and Human Services, 2008

U.S. Dist. LEXIS 26237, at *18 (N.D. Cal. March 31, 2008). While

the party seeking disclosure in Hersh & Hersh did so under the

federal Freedom of Information Act, unlike the case sub judice, this

court recognizes the validity of the district court’s characterization of

the compliance documents compiled under the CIA. The function of

the compliance reports is to aid the OIG in its oversight of [the

Hospital], and to likewise facilitate and enable full disclosure in the

administration of the CIA.

The Petitioner claims that “[neither the CIA nor the settlement

agreements have] any provision mandating there be confidentiality of

the requested public records.” . . . This assertion seems, under the

plain language of the CIA, patently false. The CIA in this case does

in fact call, on more than one occasion, for the confidentiality of the

requested documents. The CIA explicitly states that the disclosures

in the compliance reports should be kept with “confidentiality and

anonymity” where appropriate, and that for disclosures made to the

Compliance Officer via the Disclosure Program “appropriate

confidentiality shall be maintained.” . . . So not only are the contents

of the compliance reports confidential on their face, per the Hersh

court’s characterization, but they are specifically designated as such

under the language of the CIA.

Compelling disclosure of these documents would hamper both

[the Hospital’s] ability to comply with the CIA and OIG’s ability to

rely on the completeness of [the Hospital’s] reports. [The Hospital],

and other entities acting pursuant to CIAs, must feel free to fully

disclose information to the OIG. If entities are not confident that the

contents of their disclosure will remain confidential once it is

prepared for the OIG, their willingness to comply fully with CIAs

will greatly decrease. Likewise, the effectiveness of the OIG’s efforts

to oversee and regulate the health care industry through the use of

CIAs will be negatively impacted if the regulated entities are

persistently concerned that the information they compile for

compliance is subject to public disclosure.

The Protective Order at issue only applies to three of the fiftythree document requests in the current case, and would not limit

Petitioner’s discovery beyond excluding specifically the Compliance

Committees’ compliance reports and the record of the Compliance

Committee’s minutes. (citations to the record omitted)
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Following entry of the memorandum opinion, Petitioner appealed and argues on

appeal that the Trial Court erred when it concluded that the records did not have to be produced. The

specific issues raised by Petitioner are:

I. Did the Trial Court err in holding that the requested

compliance reports and records were not obtainable due to an

exception to the Tennessee Public Records Act?

II. Did the Trial Court err in holding that the requested

compliance reports and records were investigative records of

the Office of Inspector General?

III. Did the Trial Court err by not requiring production of

redacted compliance reports and records?

The Hospital argues that the Trial Court was correct when it found that Tenn. Code

Ann. § 50-7-504(a)(2)(A) protected the records from disclosure. The Hospital further argues that

even if Tenn. Code Ann. § 50-7-504(a)(2)(A) does not apply, the records nevertheless are protected

from disclosure pursuant to Tenn. Code Ann. § 50-7-504(a)(5)(A) as well as applicable federal

statutes and regulations. 

Discussion

The facts in this case are undisputed. The appeal involves matters of statutory

interpretation, which present questions of law. With respect to legal issues, our review is conducted

“under a pure de novo standard of review, according no deference to the conclusions of law made

by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706,

710 (Tenn. 2001).

Tenn. Code Ann. § 10-7-504(a)(2)(A) provides, in relevant part, as follows:

All investigative records of the Tennessee bureau of investigation, the

office of inspector general, all criminal investigative files of the

department of agriculture and the department of environment and

conservation, all criminal investigative files of the motor vehicle

enforcement division of the department of safety relating to stolen

vehicles or parts . . . shall be treated as confidential and shall not be

open to inspection by members of the public. The information

contained in such records shall be disclosed to the public only in

compliance with a subpoena or an order of a court of record;

provided, however, that such investigative records of the Tennessee

bureau of investigation shall be open to inspection by elected

members of the general assembly if such inspection is directed by a

duly adopted resolution of either house or of a standing or joint

committee of either house. . . . (emphasis added)
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The issue as to whether the above quoted statute applies is this case depends on

whether, as the Hospital claims, “the office of inspector general” includes or is referring to both the

state and federal Office of Inspector Generals. Petitioner claims that this statute only applies to the

state Office of Inspector General, and because the Corporate Integrity Agreement was entered into

between the Hospital and the federal Office of Inspector General, the statute simply has no bearing

on this case. 

In 2004, the Tennessee General Assembly created the Office of TennCare Inspector

General which was to “focus solely on the prevention and detection of fraud and abuse in the

TennCare program” See 2004 Tenn. Pub. Acts Ch. 673. At the same time, the Public Records Act,

Tenn. Code Ann. § 10-7-504(a)(2), was amended to exempt from disclosure “[a]ll investigative

records of the Office of TennCare Inspector General . . . .” See 2004 Tenn. Pub. Acts Ch. 673.

There is no question that at that point in time, Tenn. Code Ann. § 10-7-504(a)(2) referred only to a

State entity, i.e., the Office of TennCare Inspector General, as there clearly is no corresponding

federal agency bearing that particular name. 

In 2005, the General Assembly amended the relevant statute pertaining to the Office

of TennCare Inspector General and, among other things, formally changed the name of the “Office

of TennCare Inspector General” to “Office of Inspector General.” See 2005 Tenn. Pub. Acts Ch.

474. Contemporaneous with this change, the Public Records Act was amended by “deleting the

words ‘Office of TennCare Inspector General’ wherever they appear in the part and substituting

instead the words ‘Office of Inspector General.’” See 2005 Tenn. Pub. Acts Ch. 474.

As stated, it is clear to this Court that in 2004, the Tennessee General Assembly was

referring only to the State Office of TennCare Inspector General in Tenn. Code Ann. § 10-7-

504(a)(2)(A). We further conclude that the General Assembly continued to refer only to the State

entity when the statute was amended in 2005 simply to reflect the name change from “Office of

TennCare Inspector General” to “Office of Inspector General.” In short, we agree with Petitioner

that the General Assembly was not referring to the federal Office of Inspector General in Tenn. Code

Ann. § 10-7-504(a)(2)(A), and the decision of the Trial Court on this issue is reversed.

The next issue is whether the records are exempt from disclosure pursuant to Tenn.

Code Ann. § 10-7-504(a)(5)(A). The relevant portion of this statute provides as follows:

(5)(A) The following books, records and other materials in the

possession of the office of the attorney general and reporter which

relate to any pending or contemplated legal or administrative

proceeding in which the office of the attorney general and reporter

may be involved shall not be open for public inspection:

(i) Books, records or other materials which are confidential or

privileged by state law;

(ii) Books, records or other materials relating to investigations

conducted by federal law enforcement or federal regulatory agencies,
 This conclusion is reinforced by Tenn. Code Ann. § 10-7-504(a)(5)(A)(v) which discusses disclosure of 2

documents that are “in the possession” of both the Tennessee Attorney General and another department or agency. This

section would make absolutely no sense if possession did not mean physical possession. 

45 C.F.R.§ 5.65 addresses confidentiality of trade secrets and confidential information of the Department

3

of Health and Human Services. This regulation provides that information is “confidential” if it meets one of the

following definitions:

(i) Disclosure may impair the government’s ability to obtain necessary information

in the future; 

(ii) Disclosure would substantially harm the competitive position of the person who

submitted the information;

(iii) Disclosure would impair other government interests, such as program

effectiveness and compliance; or 

(iv) Disclosure would impair other private interests, such as an interest in

controlling availability of intrinsically valuable records, which are sold in the

(continued...)

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which are confidential or privileged under federal law . . . .

(emphasis added)

On appeal, the Hospital acknowledges that the Tennessee Attorney General is not in

physical possession of the requested documents. The Hospital argues, however, that “possession”

does not necessarily mean physical possession. We need not decide if “in the possession” means

more than actually physically possessing the documents because we conclude, at a minimum, that

the clear language of the statute requires the Tennessee Attorney General to have actual physical

possession of the documents in order for this exception to apply. Therefore, we conclude that Tenn.

Code Ann. § 10-7-504(a)(5)(A) does not apply in this case.2

Although we conclude that Tenn. Code Ann. §§ 10-7-504(a)(2)(A) and (a)(5)(A) do

not prohibit disclosure of the requested documents, this does not end our inquiry. Although the

Tennessee Attorney General was involved in this case, the development of the Corporate Integrity

Agreement was done through the federal Office of Inspector General. The federal Office of

Inspector General is certainly at liberty to provide that certain documents generated pursuant to the

Corporate Integrity Agreement are confidential consistent with the provisions of the Freedom of

Information Act and/or the regulations adopted by the Department of Health and Human Services.

The Office of Inspector General’s ability to do that is not eliminated simply because the agreement

is entered into with a state governmental entity such as the Hospital. In such a situation, federal law

could very well prohibit disclosure of these documents even if state law does not. 

The Hospital argues that the requested documents are protected from disclosure

pursuant to exceptions contained in the Freedom of Information Act, 5 U.S.C. § 522(b), as well as

regulations implemented by the Department of Health and Human Services addressing

confidentiality of certain documents, including 45 C.F.R. §§ 5.65 and 5.68. The Trial Court never 3
(...continued) 3

market by their owner. 

45 C.F.R. § 5.65(b)(4).

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addressed whether the documents at issue in this case were confidential under federal law as that

issue was rendered moot once the Trial Court concluded, incorrectly, that the documents were

protected from disclosure under Tenn. Code Ann. § 10-7-504(a)(2)(A). Because these documents

are not in the record before us, we cannot determine if they are confidential under applicable federal

law. Therefore, we remand this case to the Trial Court for a determination as to whether all or any

portions of the requested documents are protected from disclosure pursuant to either federal

statute(s) or federal regulation(s).

Conclusion

The judgment of the Trial Court is vacated and this case is remanded to the Trial

Court for further proceedings consistent with this Opinion and for collection of the costs below.

Costs on appeal are taxed to the Appellee, the Chattanooga-Hamilton County Hospital Authority.

___________________________________

D. MICHAEL SWINEY, JUDGE