                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 August 4, 2010 Session

             LARRY H. COLEMAN v. MATTHEW KISBER, ET AL.

            Direct Appeal from the Chancery Court for Davidson County
                    No. 10-137-IV    Russell T. Perkins, Judge


                No. M2010-00642-COA-R3-CV - Filed October 4, 2010


                            SEPARATE CONCURRENCE
                         _________________________________

JUDGE HOLLY M. KIRBY, concurring separately:

      I concur with nearly all of the majority opinion, but disagree with one aspect of it.
However, I would reach the same result with different reasoning, and so file this separate
concurrence.

       I concur fully with the majority’s conclusion that the documents sought by Coleman
contain tax administration information and tax information deemed confidential under
Tennessee Code Annotated § 67-1-1702(a).

       Coleman asserts that even if the documents in question contain confidential
information, under Tennessee Code Annotated § 10-7-503(c)(2), the documents must
nevertheless be disclosed under the Opens Records Act with the confidential information
redacted “whenever possible.” T.C.A. § 10-7-503(c)(2) (2009 Supp.). The trial court was
not required to address this issue, because the trial court relied on the ECD exception to the
Open Records requirements. As explained below, the ECD exception expressly permits the
Commissioner of Economic and Community Development to declare the “document”
confidential. This obviated the need to address the redaction issue.

        However, the majority in this appeal relies on Section 67-1-1702(a), the exception
for tax information and tax administration information. In contrast to the ECD exception,
Section 67-1-1702(a) declares the “information” confidential, and does not state that the
“document” is confidential. Therefore, under the majority’s analysis, the issue of redaction
must be addressed. Specifically, redaction must be addressed by determining either that
Section 10-7-503(c)(2) is not applicable to the documents at issue in this case, or even if
Section 10-7-503(c)(2) is applicable, none of the documents need to be disclosed because
redaction is not “possible” as to any of them.

       The majority opinion does not address whether the redaction statute, Section 10-7-
503(c)(2), is applicable under these circumstances. Instead, assuming arguendo that the
redaction statute is applicable, the majority conducts its “own independent review” of the
documents, and determines that “all of the information contained within these documents
constitutes tax administration information.” 1

        I must respectfully disagree with the majority’s approach. Also assuming arguendo
that the redaction statute is applicable, the majority’s holding amounts to a conclusion that
redaction is not “possible” under the Section 10-7-503(c)(2). If indeed the redaction statute
applies,2 I believe that such a finding must be made in the first instance by a trial court, not
by an appellate court.3 While this Court can certainly review a trial court’s finding on
whether redaction of confidential information is possible, I believe it is inappropriate for an
appellate court to conduct an “independent review” and issue such a finding itself.

       This is especially true in this case. Nowhere in the lengthy excerpts quoted from the
Commissioners’ affidavits do either Commissioner Farr or Commission Kisber claim that
redaction of the confidential tax administration information in the subject documents is not
“possible.” Rather, the Commissioners carefully eschew this issue, asserting instead that
redaction is not required.

        Nevertheless, I concur in the result reached by the majority, using the reasoning
utilized by the trial court. The trial court found that the withheld documents were protected
under the ECD exception to the Open Records requirements, Tennessee Code Annotated §
4-3-730(c), which provides:




       1
        In McLane Co. v. State, 115 S.W.3d 925 (Tenn. Ct. App. 2003), relied upon in the majority
analysis of T.C.A. § 67-1-1702(a), the issue of redaction was neither raised nor addressed.
       2
         I likewise do not address whether Section 10-7-503(c)(2) applies under the circumstances
of this case.
       3
        In Bridgestone v. Chumley, 2008 WL 2415483 (Tenn. Ct. App. June 11, 2009), T.C.A. §
10-7-503(c)(2) was not an issue. However, the appellate court remanded the case to the trial court
for an in camera review of the documents at issue, indicating specifically that redaction of the
documents would be considered by the trial court on remand. Id. at *13.

                                               -2-
               (c)(1) Notwithstanding any other provision of law to the contrary, any
       record, documentary materials, or other information, including proprietary
       information, received, produced or maintained by the department shall be
       considered public unless the commissioner, with the affirmative agreement of
       the attorney general and reporter, determines that a document or information
       is of such a sensitive nature that its disclosure or release would seriously harm
       the ability of this state to compete or conclude agreements or contracts for
       economic or community development.
               (2) If the commissioner, with the agreement of the attorney general and
       reporter, determines pursuant to subdivision (c)(1) that a document or
       information should not be released or disclosed because of its sensitive nature,
       such document or information shall be considered confidential for a period of
       up to five (5) years from the date such a determination is made. After such
       period, the document or information made confidential by this subsection (c)
       shall become a public record and shall be open for inspection.

T.C.A. § 4-3-730(c) (2005). Thus, under this statute, the Commissioner of the Department
of Economic and Community Development, with the agreement of the State Attorney
General, may determine that a document or information should not be disclosed because of
its sensitive nature. Here, ECD Commissioner Kisber, with the agreement of the Attorney
General, determined that the documents in question were “of such a sensitive nature that
[their] disclosure or release would seriously harm the ability of this state to compete or
conclude agreements or contracts for economic or community development.” Section 4-3-
730(c)(1).

       After reviewing the documents in camera, the trial court found that Commissioner
Kisber did not abuse the discretion afforded him under the ECD exception to declare the
documents confidential. Because the ECD exception protects the entire document, the trial
court was not required to reach the issue of redaction.

        I agree with the trial court’s conclusion that the ECD exception in Section 4-3-730(c)
is applicable to the documents withheld in this case. Contrary to Coleman’s assertion on
appeal, the ECD exception statute clearly authorizes the Commission to declare the
documents confidential, and not just certain information contained in the documents, and that
is precisely what the ECD Commissioner did in this case.

       Coleman also argues that Commissioner Kisber waived any protection under the ECD
exception by publicly posting unscored evaluation matrices and referring to the scoring
matrices in press releases, citing Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct.
App. 1999). The trial court found that the Commissioner’s references to the scoring matrices

                                              -3-
did not amount to a waiver of the confidentiality of the documents. Assuming, without
deciding, that such a waiver could be applicable to the discretion given to the ECD
Commissioner under Section 4-3-730(c), I agree with the trial court’s finding of no waiver.

       Therefore, I would affirm the trial court’s holding that Commissioner Kisber
appropriately deemed the documents confidential and not subject to disclosure, pursuant to
Section 4-3-730(c), the ECD exception to the Open Records requirements. This holding
would obviate the need to address the issue of redaction.

       On this basis, I concur.




                                          _______________________________________
                                          HOLLY M. KIRBY, JUDGE




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