                                                                                          07/26/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 April 25, 2017 Session

     MEMPHIS PUBLISHING COMPANY D/B/A THE COMMERCIAL
          APPEAL, ET AL. v. CITY OF MEMPHIS, ET AL.

                 Appeal from the Chancery Court for Shelby County
                No. CH-16-1074-1       Walter L. Evans, Chancellor
                      ___________________________________

                           No. W2016-01680-COA-R3-CV
                       ___________________________________


        This appeal arises out of an action brought by a newspaper seeking access to
application materials in the possession of a nonprofit professional association that was
assisting the City of Memphis in recruiting candidates for its Director of Police. The trial
court concluded that the records held by the association were subject to disclosure under
the Tennessee Public Records Act because the association acted as the functional
equivalent of the City and because the position of police director was the same as a chief
public administrative officer, a position for which the Act mandates that all employment
application materials be made available. The association and the City appeal. We
reverse the determination that the records are subject to disclosure; we affirm the denial
of an award of attorney’s fees to the newspaper.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
                           in Part and Affirmed in Part

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and KENNY W. ARMSTRONG, JJ., joined.

Jonathan P. Lakey, William B. Walk, Jr., and John J. Cook, Memphis, Tennessee, for the
appellant, City of Memphis.

Zackery B. Busey and Lori H. Patterson, Memphis, Tennessee, for the appellant,
International Association of Police Chiefs.

Lucian T. Pera and J. Bennett Fox, Jr. and, Memphis, Tennessee, for the appellee, Louis
Graham and Memphis Publishing Company d/b/a The Commercial Appeal.
                                              OPINION

I. FACTUAL AND PROCEDURAL HISTORY

       In March 2016, the City of Memphis entered into an agreement (“the Agreement”)
with the International Association of Chiefs of Police, Inc. (“IACP”) to have IACP assist
with its search for the next Director of the Memphis Police Department.1 According to
the Agreement with the City, IACP was to solicit and receive application materials from
candidates nationwide, perform an initial review of those resumes and cover letters, and
“identify the best candidates (approximately 10-20 semifinalists) for initial screening,”
which would include “internet checks and structured telephone interviews.” IACP would
then “recommend a group (approximately six) of the most highly qualified candidates for
further on-site evaluation.”

        In June, a reporter employed by The Commercial Appeal newspaper requested that
the City produce copies of all applications for the Director of Police position. A city
official responded that “IACP was handling the application process for the City, so we do
not have them in our possession and will not be giving them out for media to review.”
The reporter made a similar request to IACP, noting that he was “primarily interested in
the finalists, if any have been selected yet, but would like to receive all applications if
not.” IACP did not respond to the request. On June 23, counsel for the newspaper wrote
to the City Attorney and IACP’s Deputy Executive Director requesting access to the
applications by the following evening, or suit would be brought pursuant to the
Tennessee Public Records Act (or “TPRA”).

       On June 28, 2016, Memphis Publishing Company, doing business as The
Commercial Appeal, and Louis Graham, editor of The Commercial Appeal (collectively,
“Petitioners”) filed a “Petition for Access to Public Records and to Obtain Judicial
Review of Denial of Access” in Shelby County Chancery Court, pursuant to Tennessee
Code Annotated section 10-7-505(b). The petition named the City and IACP as
Respondents. After expedited discovery, each Respondent filed a response, with
supporting affidavits, in opposition to the petition. On July 15, IACP provided the City
with a list of six candidates it recommended for consideration; the City released the
names to the public the same day. On July 20, the court held a hearing on the petition; on
the same day, but prior to the hearing, the City released the recommended candidates’

1
  According to the affidavit of Kim Kohlhepp, manager of IACP’s executive search service, IACP is a
non-profit professional association of more than 25,000 law enforcement officers in 121 countries,
including the United States; it is headquartered in Virginia. In addition to its police executive search
service, the IACP advocates on behalf of law enforcement professionals by developing policy positions
and priorities; offers training and technical assistance to its members; conducts and publishes research;
and holds conferences to facilitate the exchange of information and best practices among law enforcement
professionals.

                                                   2
biographies, resumes, photographs, cover letters, and, where applicable, news clippings
related to the candidates.

       On July 29, the court ruled that all materials were public records within the
meaning of the TPRA and, consequently, ordered Respondents to immediately make
available to Petitioners copies of the materials from all applicants still held by IACP.
Holding that the Respondents did not act willfully in withholding the documents, the
court denied Petitioners’ request for attorney fees. IACP and the City appealed. In
accordance with Tennessee Code Annotated section 10-7-505(e),2 a separate order was
entered certifying that substantial legal issues existed with respect to the disclosure of the
documents at issue which ought to be resolved by the appellate court.

          The City raises the following issues for our review:

          1. Whether the trial court erred in holding that IACP was the functional
             equivalent of the City of Memphis and that IACP’s confidential
             information records relating to the position of Director of Police,
             information and records that never have been in the possession of the
             City, were subject to the Tennessee Public Records Act (Tenn. Code
             Ann. §§10-7-503 et seq.) (herein the “Act”).
          2. Whether the trial court erred in holding that the term “chief public
             administrative officer” contained in Tenn. Code Ann. §10-7-503(f)
             includes the position of Director of Police for the City of Memphis.
          3. Whether the trial court erred in holding that Petitioners’ request for “any
             applications submitted for the position of Chief of Police of the City of
             Memphis” included more than just applications for the position of
             Director of Police.

IACP phrases its issues on appeal as follows:

          1. Whether, under the specific circumstances of this case, the Tennessee
             Supreme Court’s [Memphis Publ’g Co. v.] Cherokee [Children &
             Family Servs, Inc., 87 S.W.3d 67 (Tenn. 2002)] decision was intended
             to and should apply to IACP?

2
    Tennessee Code Annotated section 10-7-505(e) reads as follows:

          (e) Upon a judgment in favor of the petitioner, the court shall order that the records be
          made available to the petitioner unless:

               (1) There is a timely filing of a notice of appeal; and
               (2) The court certifies that there exists a substantial legal issue with respect to the
                    disclosure of the documents which ought to be resolved by the appellate courts.

                                                       3
       2. If the Tennessee Supreme Court’s Cherokee decision applies to IACP,
          whether, under Cherokee, IACP is the functional equivalent of a
          government agency such that IACP’s records are subject to inspection
          under the Tennessee Public Records Act?
       3. If, under Cherokee, IACP’s records are subject to inspection under the
          Tennessee Public Records Act, whether IACP’s records are exempt
          from inspection under Section 503(d)(3) of the Act?
       4. Whether IACP’s records are independently subject to inspection under
          Section 503(f) of the Tennessee Public Records Act?

The Petitioners raise as an issue “[w]hether the Shelby County Chancery Court erred in
denying Petitioners’ request for attorney fees pursuant to Tenn. Code Ann. § 10-7-
505(g)”?

II. ANALYSIS

       The Tennessee Public Records Act, set forth in Tennessee Code Annotated section
10-7-101 et. seq., “grants access to records of government agencies throughout the state.”
Gautreaux v. Internal Med. Educ. Found., Inc., 336 S.W.3d 526, 529 (Tenn. 2011) (citing
Cole v. Campbell, 968 S.W.2d 274, 275 (Tenn. 1998)). The purpose of the Act “is to
promote public oversight of governmental activities.” Id. (citing Memphis Publ’g Co. v.
Cherokee Children & Family Servs., Inc. 87 S.W.3d 67, 74 (Tenn. 2002)). The
Tennessee Supreme Court has interpreted the legislative mandate of the TPRA “to be
very broad and to require disclosure of government records[3] even when there are
significant countervailing considerations.” Gautreaux, 336 S.W.3d at 529 (citing
Memphis Pub’g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994)). In
Patterson v. Convention Ctr. Auth. of Metro. Gov’t of Nashville & Davidson Cty., this
Court stated:

       Notwithstanding the presumption of openness, in the interest of public
       policy the General Assembly has provided specific explicit exemptions
       from disclosure contained in the TPRA itself. It has also “acknowledged

3
  Government or public records are defined in Tennessee Code Annotated section 10-7-503(A)(i) as
follows:

       (A) “Public record or records” or “state record or records”:

               (i) Means all documents, papers, letters, maps, books, photographs, microfilms,
               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 entity[.]

                                                    4
           and validated both explicit and implicit exceptions from disclosure found
           elsewhere in state law.” Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct.
           App. 2004). In an action filed for review of the denial of access to a record
           by a governmental entity, the governmental entity carries the burden of
           proof to justify nondisclosure by a preponderance of the evidence.
           Schneider [v. City of Jackson], 226 S.W.3d [332] at 339 [(Tenn. 2007)]
           (citing Tenn. Code Ann. § 10-7-505(c)).

421 S.W.3d 597, 606–07 (Tenn. Ct. App. 2013).

        As an initial matter, we address a jurisdictional issue raised by the City.4 In its
brief, the City argues that the court did not have jurisdiction to rule on whether the
resumes and cover letters submitted to IACP were public records because the Petitioners
only requested “applications.” This is a distinction without a difference. Exhibit A to the
Agreement provides that “IACP will acknowledge receipt of application materials from
candidates and conduct an initial review of all resumes and cover letters.” In paragraph
19 of his affidavit, Kim Kohlhepp, manager of the IACP’s executive search service,
states that “[t]he only material IACP has received from each of these candidates is an
email message, a cover letter and a resume”; in paragraph 24, he refers to these materials
as “applications.” In light of the reference in the Agreement to resumes and cover letters
as “application materials” and similar language in Mr. Kohlhepp’s affidavit, we find no
merit to the City’s argument and no error in the holding that the request for
“applications” included the resumes and cover letters submitted by interested parties,5 as
that was the method for candidates to express their interest in the position.

           A. WHETHER IACP OPERATED AS THE FUNCTIONAL EQUIVALENT OF THE
           CITY OF MEMPHIS

       The trial court held that the IACP served as the “functional equivalent” of the City
of Memphis, such that all applications in its possession were public records and should be
subject to the record request. IACP and the City contend that this holding was error.




4
    This is raised as the City’s third issue.
5
  The trial court found that “although the information submitted by potential candidates was not a
traditional fill in the blank application, there is no discernible difference between the information that
would be included on a traditional application and the information received from applicants by IACP.”
The trial court stated that “[i]t is no more likely that Respondents would have provided the information
requested by Petitioners if the public records request was a request for specific application materials, or
more particularly, emails, resumes and cover letters.” These findings are supported by the affidavits of
Mr. Kohlhepp and Ms. Smith.

                                                    5
       In Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc.,
(“Cherokee”), the Tennessee Supreme Court was called upon to determine “whether a
non-profit corporation that provides privatized services to a governmental entity is
subject to the public access requirements of the Tennessee Public Records Act.” 87
S.W.3d 67, 70 (Tenn. 2002). The entity at issue in that case was an agency that provided
“transitional child care services for children of low-income families referred by the
Department of Human Services . . . includ[ing] the listing and classification of child care
providers, referrals of qualified families to appropriate child care centers, and the
monitoring and supervision of each placement under guidelines provided by DHS.” Id. at
71. Funding was “provided by Federal and State block grants which are used for tuition
payments and administrative expenses.” Id.

       In considering whether the corporation operated as the functional equivalent of the
government, such that its records should be subject to the TPRA,6 the Supreme Court
articulated a test:

          When a private entity’s relationship with the government is so extensive
          that the entity serves as the functional equivalent of a governmental agency,
          the accountability created by public oversight should be preserved.

          . . . [I]n light of our duty to construe the Tennessee Public Records Act
          liberally in favor of “the fullest possible public access to public records,”

6
    The records sought included:

          1. All rental agreements, leases, receipts of payments and other records related to any
          rental agreements between Cherokee and Affordable Homes;
          2. All receipts, invoices, contracts, and other records pertaining to any and all
          professional and/or consulting fees paid by Cherokee since January 1, 1995;
          3. Records documenting any and all payments to officers and directors of Cherokee since
          January 1, 1997;
          4. All records, including without limitation invoices, receipts, and expense reports,
          documenting expenses for travel, conferences, conventions, meetings and meals since
          January 1, 1995, incurred and/or paid by Cherokee, as reflected in Cherokee’s annual
          form 990 reports filed with the Internal Revenue Service;
          5. All invoices, receipts, and other records detailing and documenting any or all
          “contributions” identified or listed in Cherokee’s annual form 990 reports to the Internal
          Revenue Service from January 1, 1995, to the present;
          6. All canceled checks and monthly statements involving all bank accounts maintained by
          Cherokee from January 1, 1995, to the present;
          7. All invoices, receipts and any other records documenting or pertaining to rents paid by
          Cherokee from January 1, 1995, to the present; and
          8. All contracts, consulting agreements, leases, retainers or other binding agreements
          entered into by Cherokee from January 1, 1990, to the present.

Cherokee, 87 S.W.3d at 72.
                                                      6
       we follow the Connecticut Supreme Court [in Connecticut Humane Soc’y v.
       Freedom of Info. Comm’n, 591 A.2d 395 (1991)] and interpret records
       “made or received ... in connection with the transaction of official business
       by any governmental agency” to include those records in the hands of any
       private entity which operates as the functional equivalent of a governmental
       agency. In making this determination, we look to the totality of the
       circumstances in each given case, and no single factor will be dispositive.
       The cornerstone of this analysis, of course, is whether and to what extent
       the entity performs a governmental or public function, for we intend by our
       holding to ensure that a governmental agency cannot, intentionally or
       unintentionally, avoid its disclosure obligations under the Act by
       contractually delegating its responsibilities to a private entity. Beyond this
       consideration, additional factors relevant to the analysis include, but are not
       limited to, (1) the level of government funding of the entity; (2) the extent
       of government involvement with, regulation of, or control over the entity;
       and (3) whether the entity was created by an act of the legislature or
       previously determined by law to be open to public access.

       We caution that our holding clearly is not intended to allow public access to
       the records of every private entity which provides any specific, contracted-
       for services to governmental agencies. A private business does not open its
       records to public scrutiny merely by doing business with, or performing
       services on behalf of, state or municipal government. But when an entity
       assumes responsibility for providing public functions to such an extent that
       it becomes the functional equivalent of a governmental agency, the
       Tennessee Public Records Act guarantees that the entity is held accountable
       to the public for its performance of those functions.

Id. at 78-79 (footnotes omitted). The Court concluded that the agency was subject to the
Public Records Act because it served as the functional equivalent of the government and
that access to the entity’s records was necessary in order preserve “the accountability
created by public oversight.” Id. at 78.

       In a case in which the court is called upon to apply the functional equivalency test,
the initial burden is on the petitioner to show that the private entity operates as the
functional equivalent of a governmental entity. Allen v. Day, 213 S.W.3d 244, 251
(Tenn. Ct. App. 2006). The standard of review we apply was set forth in Cherokee:

       Our determination whether the Tennessee Public Records Act applies to the
       records in [a private entity]’s possession is a question of law. We review
       questions of law de novo with no presumption of correctness accorded to
       the findings of the court below. See Gleaves v. Checker Cab Transit Corp.,

                                             7
      Inc., 15 S.W.3d 799, 802–03 (Tenn. 2000); Ridings v. Ralph M. Parsons
      Co., 914 S.W.2d 79, 80 (Tenn. 1996). . . .

Cherokee, 87 S.W.3d at 74. As noted, the test consists of four factors, which we address
seriatim.

          1. Whether and to What Extent IACP performed a Governmental or
          Public Function

        In the present case, the services IACP was to provide involved: (1) “job and
candidate profiling,” in which the IACP would meet with leaders in the community to
learn the profile sought for the position of chief of police; (2) “recruitment, marketing
and advertising,” in which the IACP would develop and distribute a recruitment brochure
and use its network to search for candidates meeting the profile; and (3) “applicant
screening, evaluation and selection,” in which the IACP would receive application
materials, conduct an initial review of those materials, and categorize candidates before
conducting “internet checks” and telephone interviews to compile a list of approximately
six candidates. From this point, IACP’s role was to support the City in its selection by
developing an interview process, scheduling and coordinating finalists’ travel
arrangements, developing questions and scheduling interviews, conducting background
investigations, and notifying non-selected candidates. The trial court concluded that
“IACP by advertising and narrowing the candidate pool to six [applicants] performed a
critical function typically performed by government.” We respectfully disagree with this
determination.

       This Court acknowledged in Allen v. Day that “[g]overnment function is not
statutorily defined and Tennessee case law provides little guidance.” 213 S.W.3d at 253.
Noting that the Supreme Court relied on Connecticut law in its decision to adopt the
functional equivalence test in Cherokee, we looked to the definition of a government
function in the context of Connecticut’s Freedom of Information Act, which we
determined to be similar to the TPRA, and which states:

             (11) “Governmental function” means the administration or
             management of a program of a public agency, which program
             has been authorized by law to be administered or managed by
             a person, where (A) the person receives funding from the
             public agency for administering or managing the program,
             (B) the public agency is involved in or regulates to a
             significant extent such person’s administration or
             management of the program, whether or not such
             involvement or regulation is direct, pervasive, continuous or
             day-to-day, and (C) the person participates in the formulation
             of governmental policies or decisions in connection with the
                                           8
                administration or management of the program and such
                policies or decisions bind the public agency. “Governmental
                function” shall not include the mere provision of goods or
                services to a public agency without the delegated
                responsibility to administer or manage a program of a public
                agency.

        Conn. Gen. Stat. Ann. § 1–200(11).

213 S.W.3d 244, 253–54 (Tenn. Ct. App. 2006). Applying the factors in the statute, we
held that the private entity performed a governmental function in its management of the
arena because “(1) the entirety of [the entity’s] operating expenses are provided by the
Sports Authority; (2) the Sports Authority is extensively involved in the management of
the Arena; and, (3) [the entity] participates in making binding governmental decisions
regarding the management of the Arena.” Allen, 213 S.W.3d at 256.7

        The question posed in Allen was also addressed in Gautreaux, in which payment
records were requested from a tax-exempt entity that was founded “to ‘provide
educational programs, research and support services for the internal medicine residence
program’ at UTCOM [the University of Tennessee College Of Medicine — Chattanooga
Unit].” Gautreaux, 336 S.W.3d at 528. UTCOM contracted with the private entity to
record the hours during which UTCOM faculty members supervised residents at a
Chattanooga hospital and to pay UTCOM faculty members for their teaching services. Id.
The Supreme Court addressed the contractual relationship between the private entity and
the governmental agency that provided medical education and determined that the private
entity was not involved in “the extensive performance of a governmental function
contemplated by Cherokee or described in Friedmann.” Gautreaux, 336 S.W.3d at 530.
The Court noted that the agency “did not delegate the responsibility to manage or
administer [the] teaching program,” nor did the private entity “control whom [the agency]
employed as a faculty member or the manner in which the faculty taught or supervised
. . . students.” Id. The Court concluded that the private entity’s “performance of the
functions of [the government agency] was not extensive and that the first Cherokee factor
weigh[ed] in favor of holding that IMEF is not the functional equivalent of a government


7
  Since Allen was decided, some cases in which the functional equivalence test was involved did not
question whether the action performed by the private entity was in fact a governmental function. In
Friedmann v. Corrections Corp. of America, this Court held that it was “at a loss as to how operating
state prison could be considered anything less than a governmental function.” 310 S.W.3d 366, 375
(Tenn. Ct. App. 2009). Similarly, in City Press Commc’ns, LLC v. Tennessee Secondary Sch. Athletic
Ass’n, this Court concluded that “it is undeniable that education is a government function, and [Tenn.
Comp. R. & Regs. 0520-01-02-.08(1)] made it clear that the Tennessee State Board of Education viewed
the supervision and regulation of athletic activities in public junior and senior high schools of Tennessee
as one of its governmental functions.” 447 S.W.3d 230, 238 (Tenn. Ct. App. 2014).
                                                    9
agency.” Id. Ultimately, after examining all four Cherokee factors, the Court held that the
entity did not serve as the functional equivalent of a governmental entity. Id. at 531.

        Applying these precedents to the record before us, we have determined that the
services performed by IACP in identifying potential candidates for the position of
Director of the Memphis Police Department does not equate to performing a
governmental function. The governmental function here is the hiring of the director of
police, and this function was never delegated or assigned to the IACP. Our conclusion is
guided by the affidavit of Alexandria Smith, Chief of Human Resources for the City,
which states, “[T]he City is not obligated to choose its Police Director from the list
produced by IACP.” Ms. Smith’s statement makes it clear that IACP’s list of candidates
was not binding on the City. The City did not control how IACP performed the services
specified in the Agreement. IACP provided a service to the City, and we do not construe
the essentially administrative tasks of conducting a preliminary search and delivering a
non-binding list of recommended candidates to be the same as managing a program of the
City or otherwise making a decision that would bind the City. Rather, the services IACP
performed were incidental to the selection of the director—a task wholly assumed by the
City. Accordingly, we conclude that IACP did not perform a governmental function and
that this factor does not weigh in favor of a finding that IACP operated as the functional
equivalent of the City.

              2. The Level of Government Funding of the Entity

       According to Kim Kohlhepp’s affidavit, “less than one percent of IACP’s annual
revenue is derived from its executive search service.” In this regard, the Agreement
shows that the City was to pay IACP $40,000 for its services. The revenue that IACP
received for its services related to the search for the Memphis Police Director is a
miniscule part of its overall budget and does not constitute a substantial level of
governmental funding of IACP. See Cherokee, 87 S.W.3d at 79 (observing that this factor
weighed in favor of finding that the entity served as a functional equivalent of the
government, where “over ninety-nine percent of [the corporation’s] funding came from
governmental sources”). Accordingly, we conclude that this factor does not weigh in
favor of a finding that IACP served as the functional equivalent of the City.

              3. The Extent of Government Involvement with, Regulation of, or
              Control over the Entity

       Ms. Smith’s affidavit states, “The City does not control in any way the manner in
which IACP performs its services.” Other than the Agreement, there is no evidence of
any other contract between the City and the IACP, and there is nothing to demonstrate
that the City has regulated or exercised control over IACP in its provision of services or
otherwise. The services IACP provides are limited to the three areas identified in the
Agreement and the performance of those services necessitates little if any City
                                            10
involvement with or control over IACP. Further, the City has not delegated any of its
official responsibilities or authority to IACP, as the City was not bound to hire its director
of police from the list of candidates recommended by IACP. Accordingly, we conclude
that this factor does not weigh in favor of a finding that IACP operated as the functional
equivalent of the City.

                  4. Whether the Entity Was Created by an Act of the Legislature or
                     Previously Determined by Law to be Open to Public Access

       IACP is a non-profit corporation organized and headquartered in Virginia. It was
not created by the Tennessee Legislature, and the affidavit of Kim Kohlhepp states,
“Never before, in any jurisdiction, have records relating to IACP’s executive search
functions been determined by any court to constitute ‘public records.’” Accordingly, we
conclude that this factor does not weigh in favor of a finding that IACP served as the
functional equivalent of the City.

       Having considered all of the relevant factors, we conclude that in performing the
services specified in the Agreement, IACP was not operating as the functional equivalent
of the City of Memphis. See Gautreaux, 336 S.W.3d at 531 (holding that “merely
providing services for, or doing business with, a government agency does not render a
private entity the functional equivalent of a government agency”) (citing Cherokee, 87
S.W.3d at 79).

          B. WHETHER TENNESSEE CODE ANNOTATED SECTION 10-7-503(F) COMPELS
             DISCLOSURE OF THE DOCUMENTS STILL HELD BY IACP

        The trial court also concluded that the position of director of police fit the
definition of “any chief public administrative officer” and the materials in IACP’s
possession were thereby subject to disclosure pursuant to Tennessee Code Annotated
section 10-7-503(f).8 IACP and the City argue that the holding was error because the
statute does not apply to the position of director of police. Petitioners rely on Bd. of Ed.
of Memphis City Sch. v. Memphis Pub. Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979), and a
2016 Opinion of the Tennessee Attorney General, Tenn. Op. Atty. Gen. No 16-16 (May

8
    Tennessee Code Annotated section 10-7-503(f) provides:

          (f) All records, employment applications, credentials and similar documents obtained by
          any person in conjunction with an employment search for a director of schools or any
          chief public administrative officer shall at all times, during business hours, 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.
          For the purposes of this subsection (f), the term “person” includes a natural person,
          corporation, firm, company, association or any other business entity.

                                                      11
4, 2016), in contending that the court correctly held that disclosure of the materials was
required under section 503(f).

       “The construction of a statute and its application to the facts of a case are
questions of law, which we review de novo with no presumption of correctness.”
Gautreaux, 336 S.W.3d at 531 (citing Larsen–Ball v. Ball, 301 S.W.3d 228, 232 (Tenn.
2010)). Upon our consideration of section 10-7-503(f), the legislative history, and in the
context of other provisions of the TPRA, we do not construe the term “chief public
administrative officer” to include the position of chief of police or police director. In
reaching this conclusion, we apply the well-known standard:

      Our role in construing statutes is to ascertain and give effect to the
      legislative intent without unduly restricting or expanding a statute’s
      coverage beyond its intended scope. State v. Sliger, 846 S.W.2d 262, 263
      (Tenn. 1993). We must determine the legislative intent, whenever possible,
      from the plain language of the statute, “read in the context of the entire
      statute, without any forced or subtle construction which would extend or
      limit its meaning.” National Gas Distribs. v. State, 804 S.W.2d 66, 67
      (Tenn. 1991). Moreover, statutes “in pari materia”—those relating to the
      same subject or having a common purpose—are to be construed together,
      and the construction of one such statute, if doubtful, may be aided by
      considering the words and legislative intent indicated by the language of
      another statute. Belle–Aire Village, Inc. v. Ghorley, 574 S.W.2d 723, 725
      (Tenn.1978); Spence v. Miles Laboratories, Inc., 810 F.Supp. 952
      (E.D.Tenn.1992). Finally, the Legislature is presumed to have knowledge
      of its prior enactments and to know the state of the law at the time it passes
      legislation. Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn.1986).

Wilson v. Johnson Cty., 879 S.W.2d 807, 809–10 (Tenn. 1994).

       The term “chief public administrative officer” is not defined in the TPRA, and
subsection 503(f) is the only place in the Tennessee Code where the phrase is used. In
the Board of Education case upon which Petitioners rely in urging that the term should be
construed to include a director of police, this Court was considering whether Tennessee
Code Annotated section 15-304 gave the press the right to review the applications for
school superintendent which were held by a screening committee of private citizens. 585
S.W.2d at 630. At that time, section 15-304 read as follows:

      All state, county, and municipal records shall at all times, during business
      hours, 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 such citizen, unless otherwise provided by law or regulations made
      pursuant thereto.
                                          12
Interpreting the statute, the court held “that the personnel files in the hands of the Search
Committee of applicants for the position of Superintendent are public records within the
meaning of portions of Title 15 of our Code . . ., and therefore, portions of Title 15 apply
thereto.” Id. at 630. Section 15-304 was subsequently renumbered and codified as
section 10-7-503; the statute has been amended over the years, with subsection (f) added
in 2005. 2005 Tenn. Pub. Acts, c. 263, § 1, eff. May 28, 2005. The Attorney General’s
Opinion likewise addressed the question of whether records obtained by a third party in
conjunction with the search for a director of schools were public records and subject to
inspection under section 10-7-503(f); the Attorney General determined that they were.
Inasmuch as the statute, as presently worded, specifically requires application materials
for the position of director of schools to be accessible, neither authority significantly aids
in our analysis.

        To resolve whether the term “chief public administrative officer” was intended to
include the position of director of police for the City of Memphis, we look first to section
504, where the Legislature identified exceptions from the disclosure requirements of the
TPRA and designated certain records confidential. One of the positions specifically
identified therein is the “chief law enforcement officer.” Tenn. Code Ann. § 10-7-504(g).
Further informing our consideration is the statement of Senator Fowler, sponsor of the
amendment that added section 503(f), on May 10, 2005, before the Senate State and
Local Government Committee, which indicates that the 2005 amendments are to apply to
searches for director of schools or a position, such as city manager, that would “run the
city”:

               There is an amendment being distributed to try to address some
       questions that were raised last week about the use of term association of
       public officials or something such thing. And concerns whether that related
       to the county commissioner’s association and the Tennessee school board
       association itself. To make clear that it deals with employment searches for
       directors of schools or any chief public administrative officer. For
       example, we have some cities that might have, and in fact we have going on
       now, searches for a city manager who really would run the city. In one city
       it’s an open process and another city it’s not an open process.

        Upon our consideration of the statutory scheme and legislative history, we are not
persuaded that the position of director of police was intended to be included within the
ambit of section 503(f); if the Legislature had so intended, it could have used the specific
language designating the position “chief law enforcement officer” as it did in section
504.9 Tennessee Code Annotated section 10-7-503(f) does not apply to the applications
for the director of police position at issue in this appeal.

9
 In its response to the petition, the City of Memphis indicated that Memphis has a Chief Administrative
Officer, who “coordinates under the supervision of the mayor the activities of all administrative
                                                  13
        C. WHETHER TENNESSEE CODE ANNOTATED SECTION 10-7-503(D)(3) EXEMPTS
           IACP FROM THE REQUIREMENTS OF THE TPRA

         IACP asserts that its records are exempt from disclosure due to “[s]ection
503(d)(3) of the TPRA provid[ing] an exemption for nonprofits organized as a [26
U.S.C.A.] 501(c)(3) and making available to the public IRS Form 990.”10 IACP contends
that it fits both of those requirements.

       It does not appear that this statute was raised as a defense by IACP in the trial
court and did not form a basis for the trial court’s decision. In In re Taylor B.W., the
Supreme Court observed that “[i]t has long been the rule that this Court will not address
questions not raised in the trial court.” 397 S.W.3d 105, 114 (Tenn. 2013) (citing
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); Tenn. R. App. P. 36(a)). This
issue was not raised in the court below and is unnecessary to our resolution of this appeal.
We therefore decline to address this issue.

       In summary, we conclude that the application materials held by IACP are not
records subject to disclosure under the TPRA.



divisions.” The position is appointed by the mayor, with the approval of the City Council, and may be
dismissed by the mayor without the Council’s approval. It is apparent that, in Memphis, this position is
the “chief public administrative officer” contemplated in section 503(f).
10
  Tennessee Code Annotated section 10-7-503(d) is lengthy and has been summarized as follows in
Gautreaux:

        In addition to providing that government records are available for public inspection, the
        Public Records Act also provides that the records of certain nonprofit entities are
        available to the public. Tenn. Code Ann. § 10–7–503(d). . . . Tennessee Code Annotated
        section 10-7-503(d)(1) provides that the “records of any association or nonprofit
        corporation described in § 8-44-102(b)(1)(E)(i) shall be open for inspection.” Tenn.Code
        Ann. § 10-7-503(d)(1). . . . The statute, however, provides several exceptions to the
        requirement that the records of a nonprofit corporation must be open.

336 S.W.3d at 531 (footnote omitted). The Court further explained in a footnote:

        In addition, the statute contains two other exceptions. Tennessee Code Annotated Section
        10-7-503(d)(1) [now (d)(2)] provides that the organization is exempt from subsection (d)
        if it meets an audit exception. Tennessee Code Annotated section 10-7-503(d)(2) [now
        (d)(3)] provides that an organization is exempt if it is a tax exempt entity under the
        provisions of 26 U.S.C. § 501(c)(3) and it makes its Form 990 public after redacting
        certain information pursuant to Internal Revenue Services regulations.”

Id. at 531 n.4 (emphasis added).

                                                   14
          D. ATTORNEY’S FEES

       As a final matter, the Petitioners assert that the court erred in not assessing
attorney’s fees and costs against IACP and the City because the entities “knew these
records were public yet willfully refused to disclose them.”11 In light of our holding that
the records in IACP’s possession are not subject to disclosure under the TPRA, the
Petitioners are not entitled to an award of attorney’s fees. Accordingly, we affirm the
judgment of the trial court declining to award attorney’s fees. See Morrison v. Allen, 338
S.W.3d 417, 449 n.7 (Tenn. 2011) (noting that a lower court’s judgment may be affirmed
when it “reaches the correct result even if it is based on different, incomplete, or
erroneous grounds” and citing Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986);
Hopkins v. Hopkins, 572 S.W.2d 639, 641 (Tenn. 1978); Martin v. Senators, Inc., 418
S.W.2d 660, 665 (Tenn. 1967)).

III. CONCLUSION

       We conclude that the judgment of the trial court that materials held by IACP are
subject to disclosure should be reversed; we affirm the court’s decision to not award
attorney’s fees. The case is dismissed.




                                                           RICHARD H. DINKINS, JUDGE




11
     Tennessee Code Annotated section 10-7-505(g) reads, in pertinent part:

          If the court finds 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. . . .
                                                     15
