COPY IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE TWENTIETH JUDICIAL DISTRICT, COUNTY OF DAVIDSON SCRIPPS MEDIA,INC. and PHIL \ryILLIAMS, Petitioners, ) ) ) ) ) v ) ) TENNESSEE DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE,SERVICES and TENNESSEE BUREAU OF INVESTIGATION, Respondents. No. c; r-J (::t c æ c(- <{t (L íj1 ) ) ) ( --r qt c) Ao 3 Petitioners Scripps Media, Inc. and Phil Williams, pursuant to Tennessee Code Annotated $ 10-7-505, hereby petition this Court to obtain access to certain public records of the Tennessee Services and the Tennessee Bureau of Investigation and for judicial review of these agencies' denial of access to public records. In support of 1. luch petition, Petitioners state as follows: Pstitioner Scripps Media, Inc. is a corporation that owns and operates television station NewsChannel 5, V/TVF in Nashville, Davidson County, Tennessee. 2. Petitioner Phil Williams is the Chief Investigative Reporter for NewsChannel 5 and is employed by Scripps Media, Inc. His actions in seeking such records were in the course and scope of his employment. 3. Serviges ¡ È*lr Ê rt ) ) ) of Mental Health and Substance Abuse i'i r €^) PETITION FOR ACCESS TO PUBLIC RECORDS Department ''-" Respondents are the Tennessee Department of Mental Health and Substance Abuse ("TDMHSAS") and the Tennessee Bureau of Investigation ("TBI"). Service of process ¡á. "t upon these agencies of the State of Tennessee may be made upon the Attorney General of the State or to any assistant attomey general pursuant to Rule 4.04 of the Tennessee Rules of Civil Procedure. ssee 4. D t of Men and By e-mail dated June 15,2078, Mr. Williams sent an e-mail to Matthew parriott, Director of Communications of TDMHSAS asking to personally inspect the following records of that state agency: since November 2016; (2) All logs of phone calls made on any mobile phone assigned to Ms. West since November 2016; and Mr. Parriott responded by e-mail that same day stating "Thank you for your request. We will begin working on it." (A copy of Mr. Williams' e-mail request and Mr. Parriott's response is attached hereto as Exhibit A.) The subject of those requests, Ms. Sejal West, was an employee of the TDMHSAS. TDMHSAS requesting that in addition to items previously requested, he would like to personally inspect the following records of that state agency: Ms. [Sejal] West's electronic calendar since November 2016. (Exhibit B hereto.) 6. On Tuesday, June 19,2018, Mr. Williams e-mailed Mr. Parriott of the TDMHSAS requesting that he be allowed to personally inspect the following records: -2- any items in Sejal west's personnel file - or in any other file kept by the Commissioner or her designee - regarding Ms. West's resignation back in January. This request includes, but is not limited to, any complaints, ãfly disciplinary letters/memos, any investigative summaries and any resignation letter/e-mail. (Exhibit C hereto.) 7 . On June 20,2018, Mr. Williams sent an e-mail to Mr. Parriott of the TDMHSAS with the subject line, "Questions about Sejal West." In that e-mail Mr. Williams asked questions regarding Ms. Vy'est's job status and whether she had been placed on administrative leave. This e- mail also requested "any e-mail or other written communication" related thereto "as a public records request." Mr. Parriott responded later that day (June 20) and stated that, "The allegation of misuse of state funds is currently under investigation by the Tennessee Comptroller of the Treasury as well as the Tennessee Department of Safety and Homeland Security." Mr. Parriott also stated that Ms. West had been placed on administrative leave with pay pending the outcome of investigations. He declined to comment further based upon these investigations. As to the last record request, he advised there were "No e-mails or other written communications responsive" to that request. In that same e-mail as regards Mr. Williams' prior requests, he advised that "any and all responsive documents will be provided in a timely manner pursuant to Tenn. Code Ann. $ 107-503, et seq." (Mr. Williams' e-mails and the response thereto are attached hereto as Exhibit D.) Reouests to 8. Tennessee Bureau of Investi sation On June 15, 2018, Mr. V/illiams sent an e-mail to the Tennessee Bureau of Investigation ("TBI") requesting to personally inspect the following documents of that state agency: (1) All travel reimbursement and per diem requests submitted by Jason Locke since November 2016; (2) Logs of phone calls made from any mobile phone assigned to him since November 2016; and -3 - (3) Any e-mails between Mr. Locke and Sejal West of the Department of Health. (Mr. Williams' e-mail is attached hereto as Exhibit E.) The subject of those requests, Mr. Jason Locke, had served as the acting director of the TBI. 9. On June 18,2018, Mr. Williams sent another e-mail to the Tennessee Bureau of Investigation requesting the following documents of that state agency: The electronic calendars for Jason Locke for the same time period fsince November 20r61. (Mr. V/illiams' e-mail is attached hereto as Exhibit F.) 10. The Tennessee Bureau of Investigation, through attorney Scott Wilder, responded to Mr. Williams by e-mail and an attached letter electronically sent. I will let you know as soon as I get an idea of the time frame for the records you request and their availability. Based upon the dates requested and the fact many of these are [sic] requests are managed or archived outside TBI, the involved supplier (mobile phone)/custodians (e-mails & calendar) will have to provide us the exact time frame for availability. Attached to the e-mail from Attorney Wilder was a "Records Production Letter" from Mr. Wilder that acknowledged the records request and stated that within thirty (30) days the records requested would be available or a determination of accessibility and availability will be made. (The e-mail and attached letter are attached as Exhibit G.) 11. On June 20,2018, Mr. Williams sent the TBI an e-mail asking if Mr. Jason Locke still had his TBI issued cell phone and whether the TBI has an internal investigation taking place. Josh Devine of the TBI responded that Mr. Locke still has his TBI issued cell phone and that "There is not an internal investigation at TBI." -4- The e-mail referenced a practice of using an investigator outside the agency. (Mr. 'Williams' e-mail and Mr. Devine's response are attached hereto as Exhibit H.) 12. On June 21,2018, Mr. Williams made an additional public record request by e-mail to the TBI seeking to inspect "transaction summaries since July 2,2016 for any credit cards or pcards that may have been assigned to Jason Locke." (A copy of that request is attached hereto as Exhibit I.) messages between Jason Locke and Sejal West." (A copy of that e-mail is attached hereto as Exhibit J.) Denials of Access : 14. By letter dated June 22,2018 from Deputy Attorney General Janet Kleinfelter to Phil V/illiams, the TMHDSAS denied all of Mr. Williams' public records requests. The basis given for the refusal was the Tennessee Supreme Court's decision in the case of Tennessean v. Metro Government of Nashville and Davidson County,485 S.W.3d 857 (Tenn. 2016). Ms. Kleinfelter stated in her denial letter, "As you may be aware, the District Attomey General for the 20th Judicial District has an open and ongoing criminal investigation concerning the activities of Ms. West." (Letter attached hereto as Exhibit K.) 15' By letter also dated June22,2018 from Deputy Attorney General Janet Kleinfelter to Phil Williarys, the TBI denied all of Mr. Williams' public records requests on the same basis and with the same language as the denial of Mr. Williams' requests to the TMHDSAS. (Letter attached hereto as Exhibit 16, L.) By e-rnail dated June 25,2018, Petitioner Mr. Williams asked Deputy Attorney General'Kleinfelter to reconsider the denial of his requests for the "non-investigative records" of 5 the TBI and TDMHSAS he had previously requested. The e-mail stated that her denial letters "clearly misapply" the decision in Tennessean v. Metro Government of Nashville and Davidson County that applied to investigative records in a criminal case. Mr. Williams' e-mail pointed out that the requested records were generated in the normal course of business and predated any anticipated investigation. (Mr. Williams' e-mail to Ms. Kleinfelter is attached as Exhibit M.) 17. Mr. Williams' e-mail to Ms. Kleinfelter pointed out that at the time of the submission of his initial record requests, no investigation had been opened. He provided the Deputy Attomey General an e-mail that he received that stated the Criminal Investigative Division C'CID") of the Highway Patrol did not open a criminal investigation until Monday, June 18, 2018. (The e-mail is attached as Exhibit N.) 1r8. On July 3, 2018, counsel for the Petitioners sent Ms. Kleinfelter a letter that requested production of the public records previously requested by Mr. Williams. (A copy of that letter is attached as Exhibit O.) Ms. Kleinfelter responded by letter dated July 1 1,2078 and again denied the requests, citing the Tennesseon v. Metro Governmenl case and other case law relating to public records requests for "investigative records." In those prior cases, the record requests were made directly to law enforcement officials seeking their investigative files in on-going criminal cases. (A copy of that letter is attached as Exhibit p.) Entitlement to Access 19. frling a As set forth above, Petitioners have attempted to obtain these public records without petition with this Court. Such efforts have been unsuccessful. The State agencies continue to deny access to those records. It is therefore necessary to bring this action for access and for judicial review pursuant to Tennessee Code Annotated $ 10-7-505. This Court is jurisdiction over this case by that statute. -6- granted 20. The records sought by Petitioners from the TBI and TDMHSAS are "public records" within the meaning of Tennessee code Annotated $ 10-7-503(aX1). 'Public records' or 'state record or records': (i) Means all documents, papers, letters, maps, books, photographs, microf,rlms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entit]'. (Emphasis added.) The statute that provides access to public records states that the records shall be open for inspection and that the right of inspection shall not be denied "unless otherwise provided by state law." Tenn. Code Ann. $ I0-7-503(a)(2). 21. Pursuant to Tennessee Code Annotated $ 10-7-505(d), there is a presumption in favor ofopenness and access to public records such as those requested by Petitioners from these agencies. This statutory section, which provides for a judicial review of a denial of access, states that it "shall be broadly construed so as to give the fullest possible public access to public records." 22, This same statute provides that in a proceeding wherein petitioner seeks access and to obtain judicial review of the denial of access that "The burden of proof for justification of nondisclosure of records sought shall be upon the official andlor designee of the offrcial of those records and the justification for the non-disclosure must be shown by a preponderance of the evidence.'? Tenn. Code Ann. $ l0-7-505. 23. The State of Tennessee cannot carry its burden of proof to provide justification for its denial ofaccess. 24. The State of Tennessee has relied upon the Tennessee Supreme Court's recent holding inTennessean v. Metro Government of Nashville and Davidson Cou,nty,485 S.V/.3d 857 (Tenn. 2016) and claimed that these records are "relevant to and involved in a pending criminal investigation coordinated by the District Attorney General." (Exhibit p.) -7 - 25, The records that Petitioners seek are not "investigative records" within the meaning of the case law cited by the State Deputy Attomey General in her denial letters. Those cases dealt with situations where the media or a criminal defense attorney made requests directly to a police department or other law enforcement agency for what was in their investigative files, including witness interviews, investigatotrs' notes and other items which the law enforcement created in the course of a pending criminal case. 26. As noted above, the public records requested by Mr. Williams include travel reimbursement records, per diem expense reports, and electronic calendars. (Exhibits A, B, C, Eo F,I and J). These records were generated and held in the normal course of these state agencies' regular business. These records were not generated or prepared in connection with any investigation. 27. The records that Petitioners have requested are not "investigative records" and the State's argument is an unwarranted and substantial expansion ofthe Tennesseancase rationale that the State relies upon in the denial letters. The public records sought are not criminal discovery documents and Rule 16 of the Tennessee Rules of Criminal Procedure has no application to these requests. 28' The public records requested by Mr. Williams were created before any investigation ever began. In addition,:âccording to the information that he received from the agencies, his public record requests were made before the investigation by the Criminal Investigative Division of the TBI was commenced. The original responses he received from the state agencies did not mention an investigation. (Exhibits A and G.) A subsequent e-mail he received:from the TBI said that the CID investigation began Monday, June I g,2018. (Exhibit H.) The 2003 Court of Appeals case of Chattanooga Publishing Company v. Hamilton County -8- Election Commission provides that a subsequent investigation does not convert previously obtainable records into records that can be withheld. 29. The documents that Petitioners request in this case are all public records. There is not an applicable exception to the statutory requirement of access to the public. The State's denials are contrary to the public records statutes and the important policies of open access to public records set forth in those statutes. 30. Tennessee Code Annotated $ 10-7-505(9) provides that the Court may award reasonable costs involved in obtaining the records, including reasonable attorneys' fees,, goveÍIment "knew the record was public and willfully refused to disclose it." "all if the Clearly, the State knows that the records sought are public. The exception claimed is an attempt to expand the rulings of the courts to records that are clearly not "investigative records." Under the circumstances of these requests, the refusal to disclose such records is willful and entitles Petitioners to an award of all reasonable costs and reasonable attorneys, fees. 31. This petition involves a question of substantial public interest and a question that has started to arise with some frequency. Unless this issue is resolved, Petitioners and other citizens of the state will be faced with denials of access based upon such an overbroad and inaccurate use of the Tenne s s e an case rationale. 32. The denial of access for these public records violates the important guarantees of free speech and freedom of press found in the First Amendment to the United States Constitution and Article I, $ l9 of the Tennessee Constitution. 33. Petitioners are entitled to full access to these public records and an award of all costs and a reasonable attorneys' fees. A memorandum of law in support of this Petition is filed contemporaneously herewith. -9 - PREMISES CONSIDERED, PETITIONERS PRAY: 1. Petitioners request that, pursuant to Tennessee Code Annotated $ 10-7-505, the Court issue an order requiring representatives of the TBI and TDMHSAS to appear at a datecertain and to show cause why this Petition for Access should not be granted, and request a prompt and expeditious hearing as provided for in the statute. Petitioners request an order from this Court that the TBI and TDMHSAS be required to promptly allow inspection and copying by Petitioners of all the requested public records. 3 Petitioners request that they be awarded all their costs incurred in obtaining these records, including reasonable attomeys' fees. 4' Petitioners request any other relief to which they may prove themselves entitled. Respectfully submitted, NEAL & HAR\ilELL, PLC By: Ronald G. Harris, #9 4 William J. Harbison II,#33330 1201 Demonbreun Street, Ste. 1000 Nashville, TN 37203 (615) 244-1713 - Telephone (615) 726-0573 - Facsimile Couns el for P etitioners -10- VERIF'I The undersigned hereby states upon his own personal knowledge that the factual representations contained herein are true and correct to the best of his information and belief. Williams STATE OF TE¡INESSEE ) ) couNTY oF DAVIDSON ) SW this subscribed before me 2018 a a a a a o a a Ès' € Notary E - 11- flifl)F#W tk*d' fi \?**"?+' At IN THE CHANCERY COURT F'OR THE STATE OF TENNESSEB TWENTIETH JUDICIAL DISTRICT, COUNTY OF DAVIDSON SCRIPPS MEDIA, INC. and ) PHIL WILIAMS, ) ) Petitioners, ) ) v. TENNESSEE DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE AgUSn. SERVICES and TENNESSEE BUREAU OF INVESTIGATION, Respondents. ) ) ) cT No. I .l I ) .t I 1 ) ) ) I l (f ) i.: PE MEMORANDUM IN SUPPORT OF' N Petitioners Scripps Media, Inc. and Phil Williams hereby submit this Memorandum in Support of their Petition for Access to Public Records ("Petition"), For the reasons set forth in their Petition and supported by the legal authority herein, this Court should grant the petition and order full access to the public records sought from the Tennessee Bureau of Investigation (,,TBI,;) and the Tennessee Department of Mental Health and Substance Abuse Services (.,TDMHSAS',). SUMMARY OF ARGUMENfl rests to inspect certain pubiic records from the TBI and TDMHSAS. (Exhibits A, B, C, D, E, F, I,.and J to petition for Access.) These requests were for records created in the ordinary course of these two state agencies, business. The I The facts are stated in the Petition for Access filed in this case and verified by petitioner phil williams records included such items as travel reimbursement requests, logs of phone calls on agency mobile phones' electronic calendars and other items. These records were 4ot created in the course of any investigation. requests on the basis of a pending investigation by the District Attorney General's office with the Tennessee Highway Patrol and Comptroller's ofhce. (Exhibits K, L, and p to petition for Access). The Attorney General cites the recent Tennessee Supreme Court decision in the Tennessean v. Metro Government of Nashville and Davidson County,485 S.W.3d 857 (Tenn. 2016) and claims that these requested records are "investigative records" within the holding of that case. Id. As discussed below, the requested records in this case and the factual circumstances of the requests are much different from the cases cited by the Attorney General. The public records in this case are not "investigative records" and the rationale for the nondisclosure in those prior cases do not apply to the Petitioners' cunent requests. The Attorney General's of?ce is arguing for an unwarranted and substantial expansion of prior court decisions - an expansion that is contrary to the public records law and the clearly contrary to stated policy of that law. AUTHORITY AND ARGUMENT I. OPEN ORDS ACT RE S ACCESS GIVEN Petitioners seek these records pursuant to the Tennessee Public Records Act. Tenn. Code Ann. $ 10-7-503, et seq. The records that Petitioners seek are clearly public records within the meaning of that statutory scheme. Tenn. Code Ann. $ 10-7-503(aX1). The State's denial letters do not argue otherwise. ') The Public Records Act provides that the public records "shall be . . . open for personal inspection by any citizenof this state, and those in charge of the records shall not refuse such right of inspection to any cilizen,unless otherwise provided by state law." Tenn. Code Ann. $ 10-7503(2XA) (emphasis added). There is a presumption of openness for government records. Memphis Publishing Co. v. City of Memphis,871 S.W.2d 681,684 (Tenn. 1984). The public Records Act specifically requires that the statute "shall be broadly construed so as to give the fullest possible public access to public records." Tenn. Code Ann. $ 10-7-505. The statute provides for'iexpeditious" judicial review of a denial of access. Id. Thestatute also provides that the burden of proof for justif,rcation for nondisclosure sought is on the official and must be shown by a preponderance of the evidence. Id. The State of Tennessee cannot meet its burden of proof in this case. II. ,l THE CASE LA\ry RELIED UPON BY THE STATE DOES NOT CREATE A BROAD EXCEPTION THAT JUSTIFIES THE DENIALS IN THIS CASE In the State's initial letters denying access, the state agencies rely upon the Tennessee Supreme Court's ruling in the Tennessean v. Metro Government of Nashville and Davidson County ("The Tennessean" case) 485 S.W.3d 857. (Exhibits K and L to Petition for Access). The State's response to Petitioner' counsel letter (Exhibit P to Petition) also relies upon the Tennesseqn case and three other prior cases for its denial. Neither the facts nor the rationale of any of those cases support their use to block access to the public records in this case. A. Tennessean v. Metro Government The Tennessean case arose the pending criminal cases of four Vanderbilt University football players charged with the rape of a university student in a campus dormitory. The Tennessee Supreme Court opinion described the issue presented to the Court as follows: -3- Whether a coalition of media groups and a citizens organizafion, relying on the Act, have the right to inspect a police dapartment's criminal investigative file while the criminal cases arising ortif th. i.ru..tlgutl* are ongoing. Tennessee Public Records 485 S.W'3d at 859 (emphasis added). In that opinion, the Court charucteized the requests at issue as follows: Following the indictments, the Petitioners, a group of media organizations and a citizens group, made a Public Records Act request to inipect the police departr-nett's files regarding its investigation of the alieged criminal conduct Lt rt" football players. Id. (Emphasis added.) The record request in that case sought to inspect any records in the police department's files, specifically including any text messages received or sent and videos provided andlor prepared by any third-party sources. Id. at860. In that case, the Tennessee Supreme Court relied upon Rule 16 of the Tennessee Rules of Criminal Procedure which govems discovery between the State of Tennessee and criminal defendants. The Supreme Court found that under the circumstances presented in that case, Rule 16 can be viewed as an exception to the Public Records Act. One of the main rationales cited by the Court to support this result was stated as: "If Rule 16 did not function as an exception to the Act, a defendant would have no reason to seek discovery under Rule 16, but would file a public records request and obtain the entire police investigative file, which could include more information than the defendant could obtain under Rule 16." 1d. at 871. (Emphasis in original.) The Court relied upon and quoted at length from a decision of the North Carolina Supreme Court that upheld a denial of access to police department recordings between police officers for similar reasons, Piedmont Publishing Co. v. City of Winston-Salem, 434 S.E.2d 176 (1993). The Tennessean case contained the following quote from that case: If we were to adopt the position advocated by the plaintiffs, . . . the files of every 4- matters that would have to be released would be the names of confidential informants, the names of undercover agents, and the names of people who have been investigated for the crime but not charged. We do not beiieve the General Assembly intended this result. Id. at 872. The ability of a criminal defendant to obtain records from the law enforcement authorities through a public records request was a significant reason for denying disclosure in this case and in the other cases relied upon by the State in its response to Petitioners' counsel. The facts of each case cited are much different than the facts in this case. The rationale of those cases for denying disclosure simply do not fit the situation presented by Petitioners' request herein. B. Apperman v. Worthington The Deputy Attorney General in her response to Petitioners' counsel also cited Apperman v. llorthington, T46 S.V/.2d 165 (Tenn. 1987), as did the Tennessee Supreme Court in the i Tennessean case' (Exhibit P to Petition for Access. ) In Apperman, itwas the criminal defendant who sought records through use of the Public Records Act. The records sought were the ,,results of investigation by Internal Affairs of the Department of Correction into the murder of Carl Estep, an inmate in a conectional facility operated by the State. . . ." 746 S.W.2dat166-167. This investigative report was made about the murder which was the subject of the pending criminal case. The Court denied the public records request on the basis that the criminal defendants could not get such memoranda or reports made by state agents or law enforcement agents in connection with the investigation or prosecution of the case, pursuant to Rule I6(a)(2) of the Tennessee Rules of Criminal Procedure. The rationale included the argument that if the defendants could not get these specific investigative reports in discovery under Rule 16 of the Rules of Criminal Procedure, the Court was unwilling to allow the defendants to get them through a Public Records Act request. 5 C. Schneider v City of lackson The Deputy Attorney General also cited Schneider v. City of Jaclcson,226 S.W.3d 332 (Tenn. 2A0D in her response to Petitioners' counsel. (Exhibit P to Petition for Access.) In that case, the Tennessee Supreme Court expressly declined to adopt an exception to the Public Records Act. a"law enforcement" privilege Id. at344. The Public Records as request in that case asked the City of Jackson police department to turn over "field interview cards generated by police officers of the City." Id. at335. The Court remanded the case for determination of which of the interview cards were involved in an ongoing criminal investigation. D. Memphis Publishing Co. v. Holt The other case that the State contends supports its position is Memphis Pubtishing Co. v. Holt,7I0 S.W.2d 513 (Tenn. 1936). (Exhibit P to Petition for Access.) In thar case, the public records request was submitted directly to the Memphis Police Department and sought the "closed investigative hle" on an incident involving ' The Court a police shoot-out. briefly discussed the argument whether Rule 16 of the Tennessee Rules of Criminat Procedure created an exception because that Rule at paragraprr (a)(2) would not allow discovery of "reports, memorandum or other internal state documents made by state agents or law enforcement officers in connection with the investigation or prosecution of the case." The Court stated that, "By definition this limitation on access to records applies only to discovery in criminal cases." The Court did not recognize a broad exemption for investigative files, but rather simply said that since the investigative file sought is a closed file, Rule 16 "does not come into play in this case." Id. at 517 .2 Attorney General's letter cites that case with an italicized quote that Rule 16 "does apply *l:t9 !ep{y the files are open and relevant to pending or contemplated '?Jhe criminai action." Id. at 517 (emphasis added)' (Exhibit P to Petition for Access.) Undersigned counsel has not been able to locate that quote at the cited page or in that case.) -6- E. Scope of Alteged r,Investigative Records'o Exception The broad exception to the Public Records Act for "investigative records" that the State now argues in this case is unwarranted, severely undermines the important open access policies of those statutes, and is not supported by Tennessee case law. In each of these cases cited by the Deputy Attomey General, the records sought were truly and without question "investigative records." Indeed, the requests were made to law enforcement agencies involved in investigating a crime. Indeed, the rationale of these cases were shaped by the fact that among the records requested in those prior cases were records created as part of criminal investigations - including investigative reports of the very incidents for which charges had been brought. E.g. the Tennessean v. Metro, supra; Apperman v. Worthington, supra. These cases dealt with true "investigative records." The decisions discussed Rule 16 of the Rules of Criminal Procedure in the context that the criminal defendant himself would not have been able to obtain those in discovery. In this current case, the records sought by Petitioners are not "investigative records." They are records made and received in the ordinary course of the transaction of business by these state agencies. The records sought were created well before investigation, including records back to November 2016. The Petitioners' current requests do not seek what was created in the course of any pending investigation. Petitioners did not make their requests to the law enforcement ofhcials investigating or prosecuting the matters at issue (as was the case in the cases the State relies upon). The requests were made to the agencies who created and received the travel reports, expense reimbursement requests, and other documents in the regular conduct of those agencies' business. Additionally, in this case, Petitioners have received information from the agencies themselves regarding these requests that support the proposition that the initial public records requests at issue herein were made before the investigations that the Deputy Attorney General 1 rclies upon to block disclosure. The initial public records requests were made on June 15,2018 (Exhibits A and ['. to Petition for Access).3 The initial responses from the agencies to these requests did not decline the requests or use any investigation as a reason for non-disclosure. (8.5. Exhibits A and G.) petitioner Williams has received an e-mail stating that the Criminal Investigative Division ("CID") of the Tennessee Highway Patrol did not open a criminal investigation until Monday, June 18, 2018 (Exhibit N). If in fact the public records requests that were made on June 15,2018, did precede any investigation, they fit well within the facts and rationale set forth in Chattanooga Publishing Company v. Hamilton County Election Commission, 2003 W.L. 22 469808 (Tenn. App. 2003) (copy attached) In that case, certain public election records were requested by a Chattanooga newspaper. Objection to disclosure was made under the specific statutory exception for TBI investigative records. The Court found that at the time of the request, "neither the original documents nor photocopies of them were in possession of the TBI, nor was there any investigation underway of the li4.ay 7 Hamilton Counly Primary." Id. at 6. The TBI investigation in that case apparently began somewhere between two and eight days after the newspaper's record request. rd. The Court of Appeals in that case reversed the trial court's denial of access stating as follows: We are of the opinion that because the election records were unquestionably public records from the time of their creation in May of 2002, and because there *e.. no applicable exceptions to the legislative mandate of accessibility at the time CPC made the request for them, they should have been released to cpc. To hold otherwise, and thereby allow a govemmental agency to shield otherwise public information from the daylight of public scrutiny subsequent to a request under the Aet, would, as noted by amici curiae, present the potential for abuse of the TBI by 3 Additional requests were made June 18,19,20,27, and 22 (Exhibits B, C, Do F, I, and J to petition for Access). -8- ; suoh agency. Such an interpretation would also run counter to both the letter and spirit of the public Records Act. Id. at 6 (emphasis on "subsequent" in original, other emphasis added). In the response letter from the Deputy Attorney General, she states that there was a "request" made by Governor Haslam to the Department of Safety and Homeland Security to conduct an investigation into the activities of Mr. Locke and Ms. West on Friday, June 15,201g. (Exhibit P) (the same day as Petitioners' initial requests). That letter also states the District Attorney General's offtce "subsequently joined the investigation on Monday, June 1g,201g.,, (Exhibit P). : Regardless of whether an investigation was commenced the same day, three days later or at any other time thereafter, the rationale of the Court of Appeals in the Chattanooga publishing company case should still be applicable. A government agency should not be allowed "to shield otherwise public information from the daylight of public scrutiny" by any such argument. The "potential for abuse" by state agencies to block the "legislative mandate of accessibility,, was properly noted there and would also exist if the arguments now advanced by the State in denying access in this case are allowed to stand. Chattanooga publishing, supra at 6. This Court needs to deny this unwarranted expansion of the concept of an exception for "investigative records." The media has and will face similar arguments in response to other cases unless such argument is judicially rejected. The State's claim that routinely prepared noninvestigative public records cannot be disclosed if an investigatory agency has sought, or may seek; to obtain those records in connection with an investigation runs directly counter to both the letter and policy of the Public Records Act and must be rejected now. -9- III THE DENIAL OF THESE REQUESTS FOR ACCESS VIOLATE IMPORTANT The denial of access under these circumstances also conflicts with the freedom of press and freedom of speech contained in the United States and Tennessee constitutions. The First ,{mendment to the lJnited States Constitution (made applicable to the states through the Fourteenth Amendment) guarantees freedom of the press and freedom of speech. The Tennessee Constitution in Article I' $ 19 contains a strong and even more specific statement of these rights. As to the freedom ofpress, it states: ' That the printing presses shall be free to every person to examine the proceedings of the Legislature or of an)? branch or offrcer of the government, and no law shall ever be made to restrain the right thereof. Tennessee Constitution, Article I, $ 19 (emphasis added). The Tennessee Supreme Court has stated its belief that "the news media have not only a right but'a duty to make searching inquiry into all phases of official conduct and to realistically evaluate and aocess the performance of duty by public officials." Press, Inc. v. Verran,s69 S.W.2d 435,442 (Tenn. 197S). The State's denial seeks to stop the full exercise of those rights. In performing that role and exercising that important constitutional right, petitioners have asked state agencies for access to public records that relate to the conduct of a high-ranking state official. The fact that the State of Tennessee may have also decided to investigate this offrcial should not allow the State to dispense with these constitutional rights. IV. PETITIONERS REQUEST THE COURT ISSUE A SHOW CAUSE ORDER FOR A PRO HEARING Petitioners request a prompt hearing on this Petition. Tennessee Code Annotated 10-7$ 505 provides for "expeditious hearings." That statute provides that: -10- lnon filing of the petition, the court shall, upon request of the petitioning party, issue an order requiring the defendant or r"spondent party to immediately appear and show cause, iithey have any, why the p.iition shouldiot U" g.o.rt"a Tenn. Code Ann. $ 10-7-505(b) (emphasis added). The normal rules regarding the times for filing a Complaint and Answer are not applicable. The statute specifically states that: A formal written response to the petition shall not be required and the generally applicable periods of filing such response shall not apply in the interest of expeditious hearings. Tenn. Code Ann. g 10-7-505(b) (emphasis added). set such a hearing at the earliest convenient time. Petitioners have also requested attorneys' fees pursuant to Tennessee Code Annotated 10-7-505(9)' Petitioners submit a hearing and $ briefing by the parties on that issue can take place at alatet time, consistent with, or based upon the Court's ruling on the access issues. Respectfully submitted, NEAL & HARWELL, PLC By: Ronald G. Harris, 4 William J. Harbison II.#33330 1201 Demonbreun Street, St.. tOOO Nashville, TN 37203 (615) 244-1713 - Telephone (615) 726-0573 - Facsimile rhan:is conl i h?ub i sonii?)nealhan vel l. c om Counsel for P etitioners - 11- ry CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served, via the method(s) indicated below, on the following counsel of record, this the 3lst day of July, 20rg. (X) Hand ( ( ( ( Janet M. Kleinfelter, Esq. Mail Deputy Attorney General 3 l5 Deaderick Street, 20th Floor Nashville, TN 37243 ) )Fax ) ) Fed. Ex. E-Mail -12- IN THE CHANCERY COURT OF DAVIDSON COUNTY, TENNESSEE AT NASHVILLE SCRIPPS MEDIA, INC., and PHIL WILLIAMS, Petitioners, v. No. 18-835-II TENNESSEE DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES and TENNESSEE BUREAU OF INVESTIGATION, Respondents. RESPONSE TO PETITION FOR ACCESS TO PUBLIC RECORDS Respondents, the Tennessee Department of Mental Health and Substance Abuse Services (the ?Department?) and the Tennessee Bureau of Investigation by and through their counsel of record, the Attorney General and Reporter for the State of Tennessee, hereby submit this Response to the Petition for Access to Public Records. INTRODUCTION AND BACKGROUND On the morning of Friday, June 15, 2018, Governor Haslam received several emails from Kim Locke alleging that her husband, former Acting TBI Director Jason Locke, and Sejal West, an employee of the Department, had engaged in an extra-marital affair and that they had used state property and/or funds to engage in such affair. One of the emails further alleged that Mr. Locke had threatened Ms. Locke with a gun. See emails attached hereto as Exhibit 1. That same day, Governor Haslam requested the Tennessee Department of Safety and Homeland Security to conduct an investigation into these allegations. On Monday, June 18, 2018, the Governor requested that the Comptroller?s Of?ce assist in the investigation. That same day, the District Attorney General for the 20th Judicial District announced that he was joining the ongoing investigation to determine if there had been any violations of criminal statutes. Thereafter, the District Attorney General?s Of?ce led and coordinated the ongoing criminal investigation. At approximately 4:00 pm. on Friday, June 15, 2018, Petitioner Phil Williams made a public records request to both the TBI and the Department. See Exh. A and to Petition. Mr. Williams made subsequent requests to the Department on June 18, 19, and 20, 2018. See Exh. to Petition. Mr. Williams also made subsequent requests to the TBI on June 18, 20 and See Exh. F, H, and to Petition. Among other things, Mr. Williams requested copies of Mr. Locke?s and Ms. West?s travel claims, electronic calendars, emails, phone calls and text messages. Id. On June 22, 2018, counsel for the Department and TBI sent a letter to Mr. Williams informing him that because the records he had requested were part of an ongoing criminal investigation, the Department and TBI could not, at this time, provide the requested records. In a subsequent letter dated July 11, 2018, counsel for the Department and TBI reiterated that the records Mr. Williams had requested were relevant to and involved in the pending criminal investigation coordinated by the District Attorney General?s Of?ce with the Tennessee Highway Patrol and the Tennessee Comptroller?s Of?ce, but that once the criminal investigation was completed, if there was no ensuing prosecution, the requested records would be made available to Mr. Williams. Thereafter, on August 10, 2018, the Davidson County Grand Jury issued a report ?nding that neither Mr. Locke nor Ms. West had committed a violation of any criminal statute. The Grand Jury issued this report after hearing testimony from the Tennessee Comptroller?s Of?ce, the Tennessee Department of Safety and Homeland Security and the Tennessee Highway Patrol. See lawsiarticle With the issuance of this report, the criminal investigation was closed. It is undisputed that, on the same day that the Grand Jury issued its report, the District Attorney General?s of?ce made available to Mr. Williams (and others) copies of the investigative ?le. Thereafter, on August 14, 2015, the TBI made copies of all its records available to Mr. Williams and on August 15, 2016, the Department made copies of its records available to Mr. Williams] On July 31, 2018, Petitioners ?led a petition pursuant to Tenn. Code Ann. 10-7-505(a) seeking access to the records sought by Mr. Williams in his requests of June 15the TBI and the Department. However, copies of all records responsive to these requests have now been made available to Mr. Williams and there are no other records to be provided.2 Accordingly, the TBI and the Department submit that, to the extent Petitioners are seeking an order from this Court concerning the disclosure of the records in question, that issue is moot and there is no judicial relief with respect to such records that this Court can grant. The TBI and the Department further submit that Petitioners have failed to demonstrate, under the applicable authorities, that they are entitled to an award of attorney?s fees. Accordingly, the TBI and the Department submit that the Petition should be dismissed in its entirety and with prejudice. 'The Department has contacted Mr. Williams twiCe to let him know that a copy of all records is available, however, to date, Mr. Williams has not responded or otherwise come to pick up the copy. -'lt should be noted that Mr. Williams only requested to inspect the records in question; howcver, because of the delay in production From the ongoing criminal investigation. the District Attorney General?s Oi?ee, the 'l'Bl and the Department all made copies of their records available to Mr. Williams. 3 ARGUMENT I. The Petition for Access to Public Records Is Moot as Petitioners Have Been Provided With All Requested Records. Petitioners acknowledge that all of the records requested by Mr. Williams, and more, have been provide by the TBI, the Department and the District Attorney General?s of?ce.3 Numerous state and federal courts have recognized that once a party produces the records sought pursuant to a public records request, the controversy surrounding the records is moot. See Coats v. County Airport Authority, No. M2000-00234-COA-R3-CV, 2001 WL 1589117, at *3 (Term. Ct. App. Dec. 13, 2001); see also Cabinet for Health Family Servs. V. Courier-Journal, Inc., 493 375, 382-83 (Ky. Ct. App. 2016) (cases cited therein). Petitioners, in their supplemental memorandum in support of the Petition for Access, tacitly acknowledge that their Petition for Access to the requested records is moot and that there is no meaningful relief this Court could grant under Tenn. Code Ann. 10-7-505, but argue that this Court should ?nd that the ?public interest? exception to the doctrine of mootness applies, citing to two unreported decisions of the Court of Appeals involving public records requests, Webber v. Bolling, CA. No. 177, 1989 WL 151496 (Tenn. Ct. App. Dec. 13, 1989) and Chattanooga Publishing Co. v. Hamilton County Election Commission, N0. E2003-00076-COA- R3-CV, 2003 WL 22469808 (Tenn. Ct. App. Oct. 31, 2003). In the Webber case, the court did not engage in any analysis but simply stated its belief that the ?accessibility of public records is a matter of great public concern.? 1989 WL 151496, at In the Chattanooga Publishing case, the court held that because ?the accessibility of public election records, and the right of the public to assure itself that the election process is free, fair, and transparent, is likewise of great public concern,? the ?public interest? exception to the mootness doctrine was applicable. 2003 3 See Petitioners Supp. Memo. at 2. WL 22469808, at *3 (emphasis added). Neither of these cases are binding precedent, nor provide (as persuasive authority) a suf?cient basis for invoking the public interest exception, particularly not in light of more recent binding Supreme Court authority. Tennessee courts follow certain rules of judicial restraint so that they stay within their 75 province ?to decide, not advise, and to settle rights, not to give abstract opinions. Hooker v. Haslam, 437 409, 417 (Tenn. 2014) (quoting Norma Faye Pyles Family Purpose LLC v. Putnam Co., 301 196, 203 (Tenn. 2009)). The mootness doctrine is one such rule. ?The mootness doctrine provides that before the jurisdiction of the courts may be invoked, ?a genuine and existing controversy, calling for present adjudication? of the rights of the parties must exist.? State v. Rodgers, 235 92, 97 (Tenn. 2007) (quoting State ex rel. Lewis v. State, 347 47, 48 (Term. 1961)). Thus, in order for this Court to render an opinion, it must be faced with a live controversy. Honeycutt ex rel. Alexander H. v. Honeycutt, No. M2015- 00645-COA-R3-CV, 2016 WL 825852, at *2 (Tenn. Ct. App. Mar. 2, 2016). Such controversy must remain alive, i.e. justiciable, through the course of litigation. Norma Faye Pyles Lunch Family Purpose LLC, 301 at 203-04. A case ceases to be justiciable when it ?no longer serves as a means to provide some sort of judicial relief to the prevailing party.? Id. at 204. As the Tennessee Court of Appeals has recently stated with respect to the mootness doctrine: Despite the absence of express constitutional limitations on the exercise of their judicial power. Tennessee's courts have. since the earliest days of statehood, recognized and followed rules to promote judicial restraint and to provide criteria for determining whether the courts should hear and decide a particular case. These rules, commonly referred to as justiciability doctrines, are based on the judiciary?s understzuiding of the intrinsic role of judicial. power, as well as its respect for the separation of powers doctrine in Article II, Sections 1 Md 2 of the Constitution of A moot case is one that has lost its justiciability either by court decision, acts of the parties, or some other reason occurring after commencement of the case. West v. VaughtAircraft Indus, Inc, 256 at 625; McCanless v. Klein, 182 Tenn'. at 637, 188 at 747; McIntyre v. Traughber, 884 at 137. A case will be considered moot if it no longer serves as a means to provide some sort of judicial relief to the prevailing party. Knott v. Stewart County, 185 Tenn. at 626, 207 at 338?39; Bell v. Todd, 206 86, 96 (Tenn. Ct. App. 2005); Massengill v. Massengill, 36 Term. App. 385, 388?89, 255 1018, 1019 (1952). Norma Faye Pyles Family Purpose LLC v. Putnam Cnty., 301 196, 202?04 (Tenn. 2009). ?Determining whether a case is moot is a question of law.? Alliance for Native Am. Indian Rights in Tennessee, Inc. v. Nicely, 182 333, 33 8?39 (Tenn. Ct. App. 2005). Witt v. Witt, No. E201700884COAR3CV, 2018 WL 1505485, at *4 (Term. Ct. App. Mar. 27, 2018). The general rule is that courts should dismiss cases that have become moot regardless of how appealing it may be to do otherwise. Norma Faye, 301 at 210. And while Tennessee courts recognize an exception to modtness allowing them ?to address issues of great importance to the public and the administration of justice,? id., this exception is available, however, only ?under ?exceptional circumstances where the public interest clearly appears.? Nonpro?t Hous. Corp. v. Tenn. House. Dev. Agency, No. M201401588-COA-R3-CV, 2015 WL 5096181, at *10?11 (Tenn. Ct. App. Aug. 27, 2015) (quoting Dockery v. Dockery, 559 952, 955 (Tenn. Ct. App. 1977)). Consequently, the Tennessee Supreme Court has emphasized that the issue must be ?one of great public importance, as where it involves a determination of public rights or interests under conditions which may be repeated at any time.? State v. Rogers, 235 92, 97 (citing McCanless v. Klein, 188 745, 747 (Tenn. 1945). Furthermore, while recognizing that it is within the discretion of the courts to address such issues, the Tennessee Supreme Court has identi?ed certain threshold factors a court must consider in determining the public interest exception should be invoked: (1) The public interest exception should be invoked only with regard to issues of great importance to the public and the administration of justice; (2) The public interest exception should not be invoked in cases affecting only private rights and claims personal to the parties: (3) The public interest exception should not be invoked if the issue is unlikely to arise in the future; and (4) The public interest exception should not be invoked if the record is inadequate or if the issue has not been effectively addressed in the earlier proceedings. Norma Faye Pyles Family Purpose LLC v. Putnam C0., 301 at 210-211 (citations omitted). If these threshold considerations do not exclude the invocation of the public interest exception, the Supreme Court directs that court should then ?balance the interests of the parties, the public, and the courts to determine whether the issues in the case are exceptional enough to address? and has identi?ed a number of factors to be considered: The assistance that a decision on the merits will provide to public of?cials in the exercise of their duties,4 (2) The likelihood that the issue will recur under similar conditions regardless of whether the same parties are involved, (3) The degree of urgency in resolving the issue, (4) The costs and dif?culties in litigating the issue again, and (5) Whether the issue is one of law. a mixed question of law and fact, or heavily fact?dependent. Id. at 211. In Norma Faye, the Supreme Court found that the public interest exception to the mootness doctrine was applicable because (1) it raised questions of condemnation of private property in which a constitutional right was involved; (2) the statute at issue, Tenn. Code Ann. 13-16-2076), had not been subject to judicial review or construction and authoritatively deciding 4 Petitioners? supplemental memorandum fails to identify what substantive issue remains to be adjudicated on the merits. 7 when the certi?cate required by that statute must be obtained would assist the public of?cials in the discharge of their statutory duties; (3) there was a substantial probability that conduct similar to that which gave rise to the diSpute would recur as counsel for the City and County had asserted that they would continue to commence condemnation proceedings without ?rst obtaining the certi?cate of public purpose and necessity unless the Court construed the statute otherwise; and (4) the issue regarding the interpretation of Term. Code Ann. 13-16-207(f) was a question of law. Id. at 211?212. None of these reasons exist in the present case. The dispute in this case does not involve any constitutional rights?the right of access to public records is purely a statutory right. See Abernathy v. Whitley, 838 211, 214 (Tenn. Ct. App. 1992) (holding that there is no constitutional right to examine public records, only a statutory right granted by the General Assembly). Both the Public Records Act and Tenn. R. Crim. P. 16(a)(2) have been subject to signi?cant judicial review?most recently by the Supreme Court in Tennessean v. Metro. Gov?t of Nashville and Davidson County, 485 857 (Tenn. 2016). Further, there is no evidence in the record that there is a ?substantial probability that conduct similar to that which gave rise to the dispute would recur??as the conduct here was based on the speci?c facts and circumstances and not on the disputed interpretation of a statute. See, e. In re Lineweaver, 343 401, 413 (Tenn. Ct. App. 2010) (court found that case was not moot because the issues involved ?the contempt powers of the Juvenile Court Judge as well as the Juvenile Court Referees?). Petitioners do not address any of these threshold considerations, but simply assert that because this case involves the conduct of public of?cials and could occur again in the future, this Court should exercise its discretion to invoke the public interest exception. But Petitioners fail to identify what ?conduct of public officials? needs to be addressed or how a decision on the merits will provide assistance to public of?cials in the exercise of their duties. As the Kentucky Supreme Court has noted, if all that was required under this public interest exception was that the opinion could be of value to future litigants, the exception ?would he so bread as to virtually eliminate the notion of mootness.? 331 Ill.Dec. 1, 910 at 81. To invoke this exception, therefore, the party asserting justiciability must show, in addition to the public-question and likcliliood~oT?recurrence elements. that ?there is a need for an authoritative determination for the future guidance of public of?cers.? See also. Putnam Cary, 301 at (discussing factors relevant to the public interest exception and noting that an important one is ?the assistance that a decision on the merits will provide to public of?cials in the exercise of their duties?); Doe v. Doe. l72 P.3d at l071 (noting that under the public interest exception, in cases where ?the question involved affects the public interest and an authoritative determination is desirable for the guidance of public of?cials, [the] case will not be considered moot?). Morgan v. Getter, 441 94, 102?03 (Ky. 2014). Here, a decision on the merits will provide little assistance to public of?cials because this action is entirely dependent on the speci?c facts and circumstances asserted. It was for this reason that the Court of Appeals declined to invoke the public interest exception in the case of City of Chattanooga v. Term. Regulatory Auth, No. 2010 WL 2867128 (Tenn. Ct. App. July 21, 2010). That case involved a proposed 2006 rate hike ?led by the Tennessee American Water Company (TAWC) for the City of Chattanooga. While the administrative case was pending, While the case was pending, TAWC ?led a new proposed rate hike in 2008 and sought to dismiss the 2006 case on the grounds that the 2008 case rendered it moot. Id. at While ?nding that the issue in the case?the proposed rate hike?was one that represented the interest of the public at large, the Court of Appeals ultimately declined to apply the public interest exception because of the ?fact intensive nature? of the case, which the Court found would be of little assistance to another court in the future. 2010 WL 2867128, at The Court also declined to apply the public interest exception because it failed to ?appreciate any degree of urgency? to consider a case which is no longer a justiciable controversy. Id. Rather, the Court noted that if similar issues arise in another rate case, ?the right and ability to appeal will be available to all parties.? Id. Similarly, under the Public Records Act, the TBI and the Department bear the statutory burden of demonstrating, ?by a preponderance of the evidence,? that the requested records were not subject to inspection under the Public Records Act. See Tenn. Code Arm. Thus, there is no pure question of law at issue, but rather, any decision on the merits is going to depend signi?cantly on the speci?c facts and circumstances. Consequently, any decision would provide little assistance either to public of?cials in the performance of theirduties or to another court in the future. See Racine Edus. Ass ?n v. Board of Educ for Racine Unified School District, 385 510, 512 (Wis. Ct. App. 1986) (?Deciding cases that are moot should be reserved for those instances where the competing rules are uncertain and where an immediate decision will have a timely impact upon the trial courts. Because of the unique fact situation in this case, the practical effect upon other public records cases is of limited value?) Moreover, there simply is no degree of urgency present here. The criminal investigation was closed and Mr. Williams was provided access to all of the records (and more) within just a few days. Thus, as the Court of Appeals noted in City of Chattanooga v. Tenn. Regulatory Auth. if similar issues arise with another public records request, ?the right and ability to appeal will be available to all parties.? 2010 WL 2867128, at see also Sloan 12. Friends of Hunley, Inc., 630 474, 478 (SC. 2006) (South Caroline Supreme Court found that ?no imperative or manifest urgency exists in light of [entity]?s producing the requested documents?). 10 There is no dispute that the issue of access to the records in question no longer presents a justiciable controversy and is moot. The burden is on Petitioners to demonstrate that this case is so exceptional as to justify this Court?s exercise of its discretion to invoke application of the public interest. Under the analysis of threshold considerations outlined by the Supreme Court in Norma Faye, Petitioners have failed to establish the existence of an issue of great public importance and this Court should decline to invoke the public interest exception. 11. Petitioners Are Not Entitled to An Award of Attorney?s Fees. Petitioners assert that they are entitled to an award of attorneys? fees pursuant to the following provision of the Act: If the court ?nds 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. Tenn. Code Ann. The Tennessee Supreme Court has noted that this attorney fee provision is ?by its terms a limited award provision.? Memphis Publishing, 871 at 689; see Friedmarm v. Marshall County, 471 427, 436 (Tenn. Ct. App. 2015). Thus, under the plain language of the statute, an award of fees under the Act must ?rst meet the threshold requirement that the governmental entity or of?cial ?knew? the record was public and ?willfully? failed to disclose it. In other words, the Public Records Act does not authorize a recovery of attorneys? fees if the withholding governmental entity acts with a good faith belief that the records are excepted from the disclosure. Moreover, in assessing willfulness, Tennessee courts must not impute to a governmental entity the ?duty to foretell an uncertain juridical future.? 11 Schneider v. City of Jackson, 226 332, 346 (Tenn. 2007) (quoting Memphis Publ Co. v. City of Memphis, 871 at 689). In Friedmann, the Court of Appeals stressed that ?willfulness? should be measured ?in terms of the relative worth of the legal justi?cation cited by a [governmental entity] to refuse access to records.? 471 at 439. In other words, ?the determination of willfulness ?should focus on whether there is an absence of good faith with respect to the legal position a [governmental entity] relies on in support of its refusal of records.? Clarke v. City of Memphis, 473 285, 290 (Tenn. Ct. App. 2015) (quoting Friedmann, 471 at 438). Accordingly, a ?nding of ?willfulness? and corresponding award of fees under the Public Records Act is appropriate only when a governmental entity invokes a legal position that is not supported by existing law or by a good-faith argument for the modification of existing law. Id. at 290?91 (citing Schneider, 226 at 347). Moreover, Tennessee courts will not impute to a governmental entity ?a duty to foretell an uncertain judicial future.? Schneider v. City of Jackson, 226 332, 346 (Tenn. 2007). Finally, even if the trial court makes a ?nding of knowledge and willfulness, the statute does not require the trial court to award attorney?s fees. Instead, Tenn. Code Ann. 10-7-505(g) provides the trial court ?may, in its discretion? assess costs and fees. Nashville Post Co. v. Tennessee Educ. Lottery Corp., No 2007 WL 3072778, at *3 (Term. Ct. App. Apr. 14, 2008) Here, the TBI and the Department did not immediately provide the requested records because they were relevant to an ongoing criminal investigation being conducted jointly by the Tennessee Department of Safety, the Tennessee Comptroller and the District Attorney General. As such, the TBI and the Department believed the records to be exempt from disclosure while that criminal investigation was open pursuant to Tenn. R. Crim. P. 16. The Tennessee Supreme l2 Court has clearly recognized Tenn. R. Crim. P. 16 is an exception to disclosure and inspection of investigative ?les under the Public Records Act. That Court ?rst addressed the construction and application of Tenn. R. Crim. P. 16 as an exception to disclosure and inspection under the Public Records Act in Memphis Publishing Company v. Holt, 710 513 (Tenn. 1986). In that case, disclosure was sought of closed investigative ?les of the Memphis City Police Department under the Public Records Act. This Court held that this ?exception to disclosure and inspection [Rule 16] does not apply to investigative ?les in possession of state agents or law enforcement of?cers, where the ?les have been closed and are not relevant to any pending or contemplated criminal action, but does apply where the ?les are open and are relevant to pending or contemplated criminal action.? Id. at 517 (emphasis added). Because the investigative ?les sought to be examined were closed ?les and not relevant to any pending or contemplated criminal action, this Court held that Rule 16 did ?not come into play in this case.? Id. Subsequently, in Appman v. Worthington, 746 165 (Tenn. 1987), the Supreme Court was presented with the ?issue of whether records of the investigation into the death of an inmate of a state correctional facility are available for inspection under T.C.A. 10-7-503 of the Public Records Act.? Id at 165. The Court noted that the ?memoranda, documents and records sought to be inspected by appellees in this case are the results of the investigation by Internal Affairs of the Department of Correction into the murder? of an inmate. Id. at 166-67. The Court held that the materials sought by appellees are relevant to the prosecution of the petitioners and other inmates charged with offenses arising out of the murder of Carl Estep. These prosecutions have not yet been terminated. It necessarily follows under Rule 16(a)(2) that access to materials in. the possession of Sergeant Worthington are not subject to inspection by appellees, who are counsel for the indicted petitioner-inmates. 13 Id. at 167 (emphasis added). See also Van Tran v. State, No. 1999 WL 177560, at *5 (Tenn. Crim. App. Apr. 1, 1999) relevant to pending criminal action need not be disclosed under the Tennessee Public Records Act). In Schneider v. City of Jackson, 226 332 (Tenn. 2007), the Supreme Court characterized its decision in Appman as holding that ?Rule 16(a)(2) exempted from disclosure under the Public Records Act all ?open? criminal investigative ?les that ?are relevant to pending or contemplated criminal action?? Id. (internal citations omitted). Indoing so, the Supreme Court speci?cally recognized the ?harmful and irreversible consequences [that] could potentially result from disclosing ?les that are involved in a pending criminal investigation.? Id. More recently, in the case of Tennessean v. Metro. Gov?t of Nashville and Davidson County, 485 857 (Tenn. 2016), the petitioners argued that Rule 16(a)(2) ?did not protect records created by third parties and then provided to or gathered by law enforcement of?cials, as these records [did] not come within the work product exception? and that to interpret Rule 16(a)(2) ?as a blanket exception to disclosure under the Public Records Act for public records that are ?relevant to a pending or contemplated criminal action,? is, in effect, the adoption of a common law law enforcement privilege? rejected by the Supreme Court in Schneider. Id. at 866. The Supreme Court rejected this argument and held that Metro was not required to disclose the requested investigative records because the records came with the Rule 16 exception. Id. at 870. The TBI and the Department relied on these authorities in declining to immediately provide the requested records as they were relevant to the ongoing criminal investigation and had been speci?cally sought in that investigation. Petitioners assert that these the protections of Rule 16(a)(2) only apply when the request is made to a law enforcement agency or prosecutor and, 14 therefore, the and Department?s reliance on these cases was unjustified and willful.5 However, it should be noted that in the Appman case, the public records request was not made to the District Attorney General prosecuting the case, but instead, to the Tennessee Department of Correction?the governmental entity that had created the records. Regardless, the Supreme Court held that because the Department of Correction?s records were relevant to the ongoing prosecution, they were not subject to disclosure under the Public Records Act. See Appman, 746 at 167. Consequently, it cannot be said that there is ?an absence of good fait with respect to the legal position the TBI and the Department relied on in support of its refusal of records. See Clarke v. City of Memphis, 473 at 290. Moreover, the Petition is devoid of any allegations that the TBI and the Department acted in bad faith or with a dishonest purpose in withholding the documents in question. As stated by the Court of Appeals, ?the ?nding of willfulness . . . in failing to disclose public records is a high standard, requiring more than mere inadvertence, mistake or negligence. Rather, the ?nding that a [records custodian] willfully withheld public documents requires evidence that the withholding entity acting consciously in furtherance of dishonest purpose or moral obliquity.? Greer v. City of Memphis, 356 917, 923 (Tenn. Ct. App. 2010) (citing Arnold v. City of Chattanooga, 19 at 789) (emphasis in original). _In light of this standard and the lack of any allegations, much less evidence, of bad faith, there is no basis for the Petitioners? request for attorney?s fees and such request should be denied. 5 Petitioners also assert that their request for records was made before an investigation had commenced, citing to the Chattanooga Publishing v. Hamilton County Election Commission case as authority. However, the question of whether the request was made prior to the commencement of a criminal investigation is a factual issue. 15 CONCLUSION For these reasons, Respondents respectfully request that this Court dismiss the Petition for Access to records in its entirety and with prejudice. Respectfully submitted, HERBERT H. SLATERY Attorney General and Reporter KLEINFELTER (BPR 13889) . - uly Attorney General Public Interest Division Of?ce of Tennessee Attorney General PO. Box 20207 Nashville, TN 37202 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response has been sent by electronic transmission and/or by ?rst class U.S. Mail, postage prepaid, to: Ronald G. Harris William J. Harbison II Neal Harwell, PLC 1201 Demonbreun Street, Ste. 1000 Nashville, TN 37203 This 20th day of August, 2018. NET M. KLEINFELTER eputy Attorney General l6 Page 1 of2 Email Viewer Message Details Attachments Headers Source i? From: Date: 6/15/2018 6:52:10 AM To: "AECT@gcts.tn.gov" Cc: Subject: Jason locke OM Mount Jason had an affair with Former Deputy Commissioner Sejal West at the Department of Mental Health and Substance Abuse for The State of Tennessee from November 2016 through July 2017. He admitted to me that he drove his state vehicle and she drove her state vehicle to stay in hotels paid for by the State of Tennessee. They each found a reason to be at those locations to continue thelr affair. When it ended, when her husband, Ben West found out, Sejai West had her husband arrested for domestic violence and - - . Sejal West resigned her position in January 2018. He has done away with the state phone that he used during this affair and was issued a new state phone and began using the WhatsApp to continue the affair, because it is She called to tell me this Information and I have contacted news channel 5 also. not Toda '5 Date MM DD - r. IWW) i .9. 6/14/2018 6/18/2018 Page 1 ofl Email Viewer Message i Details Attachments Headers Source HTM From: "Kim Locke" Date: 6/15/2018 10:13:23 AM To: "bill.haslam@tn.gov" Cc: Subject: Re: Jason Locke Jason has been terri?ed that this would come up in hIs background check. He was also concerned that someone would ask me how much alcohol he consumes. He asked me to lie and say he only has 2-4 drinks a week. I can assure you that Is not the case. I am devastated and I?m very worried for my children. Sejal West?s husband told me that there were numerous trips out of town on state time that they took together, jason only admitted to 2 trips. Sent from my iPhone On Jun 15, 2018, at 6:45 AM, Kim Locke wrote: Jason Locke Jason had an affair with Former Deputy Commissioner Sejal West at the Department of Mental Health and Substance Abuse for The State of Tennessee from November 2016 through July 2017. He admitted to me that he drove his state vehicle and she drove her state vehicle to stay at hotels overnight In Knoxville, TN. and In Jackson, Tn. paid for by the State of Tennessee. They each found a reason to be at those locations to continue their affair. When It ended, when her husband, Ben West found out, Sejal West had her husband arrested for domestic violence and . Sejal West resigned her position In January 2018. She returned to the Department of Mental Health and Substance Abuse at a lower position. He has done away with the state phone that he used during this affair and used the WhatsApp to continue the affair because it is She called me to tell me about the affair and It will be on the news. Sent from my lPhone Sent from my iPhone Close 6/18/2018 Page 1 of 1 Email Viewer Message Details Attachments Headers Source HTML From: ?Kim Locke" Date: 6/15/2018 1:46:19 PM To: "bill.haslam@tn.gov" Cc: Subject: Jason Locke Sir, I know you're very busy. Can you please let me know you received my emails? I'm very afraid that I?m in danger. He pid