                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   December 9, 2004 Session


GREGORY FODNESS v. NEWPORT AND COCKE COUNTY ECONOMIC
            DEVELOPMENT COMMISSION, INC.

                      Appeal from the Chancery Court for Cocke County
                       No. 03-076 Telford E. Forgety, Jr., Chancellor



                   No. E2004-01491-COA-R3-CV - FILED MARCH 16, 2005




CHARLES D. SUSANO , JR., concurring in part and dissenting in part.


       I agree with the majority’s conclusion that the Commission is not entitled to summary
judgment on the record presently before us. I disagree, however, with the majority’s rationale for
that conclusion. Specifically, I disagree with the assertion that the public’s access to the
Commission’s records depends upon whether, in the words of the majority, “[the Commission] is
the functional equivalent of a governmental agency.” I believe this concept of “functional
equivalen[cy],” as promulgated by the Supreme Court in Memphis Publ’g Co. v. Cherokee Children
& Family Servs., Inc., 87 S.W.3d 67, 79 (Tenn. 2002), is not material to the issue now before us.

        Under Tenn. Code Ann. § 10-7-503(d)(1), the records of the Commission – which entity is,
without dispute, an “association or nonprofit corporation described in [Tenn. Code Ann.] § 8-44-
102(b)(1)(E)(i)” – “shall be open for inspection as provided in [Tenn. Code Ann. § 10-7-503(a)].”
(Emphasis added). Since the legislature has specifically addressed § 8-44-102(b)(1)(E)(i) entities
in subsection (d)(1) of § 10-7-503, I do not understand how a Supreme Court decision regarding the
breadth of the general language of subsection (a) of that statute – “all state, county and municipal
records” – is implicated by the facts in the instant case. The specific language controls over the
general language. See Netherland v. Hunter, 133 S.W.3d 614, 616 (Tenn. Ct. App. 2003) (“Another
rule of statutory interpretation is that a special statute or a special provision of a particular statute
controls a general provision in another statute or a general provision in the same statute.”).




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        I agree with the majority that the last paragraph of subsection (d)(1)1 applies to the whole of
that subsection. This means that the so-called audit exception of subsection (d)(1) – upon which the
Commission relies – is applicable to the Commission if it employs one or two employees. In other
words, if the Commission is to block public view of its records, it must prove that it does not
“employ[] more than two (2) full-time staff members” and otherwise complies with the other
provisions of the audit exception. Thus, the number of people employed by the Commission is a
material fact and one about which there is a dispute in the record. Therefore, I agree with the
majority that summary judgment is not appropriate in this case. I also agree that this case should be
remanded for further proceedings; however, I disagree with the majority’s view as to what must be
resolved upon the remand.

       Accordingly, I concur in part and dissent in part.


                                                                _______________________________
                                                                CHARLES D. SUSANO, JR., JUDGE




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           That subsection provides as follows:

                   The provisions of this subsection shall not apply to any association or nonprofit
                   corporation described in § 8-44-102(b)(1)(E)(i), that employs more than two (2)
                   full-time staff members.

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