                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs April 19, 2011

  YOUNG BOK SONG v. TENNESSEE DEPARTMENT OF CHILDREN’S
                      SERVICES, ET AL.

                Appeal from the Chancery Court for Davidson County
                 No. 09-1746-IV    Russell T. Perkins, Chancellor




                  No. M2010-01198-COA-R3-CV - Filed June 1, 2011


The petitioner, Young Bok Song (“Song”), a prisoner serving a 65-year sentence resulting
from convictions for rape of a child and aggravated sexual battery, filed a petition for
declaratory judgment, requesting that the Tennessee Department of Children’s Services
(“DCS”) be directed to release to him copies of its investigative records from his criminal
case. The trial court dismissed the petition on the grounds of sovereign immunity and failure
to state a claim upon which relief can be granted. Song appeals. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Young Bok Song, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor
General, and Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, for the
State of Tennessee and the Tennessee Department of Children’s Services.


                                        OPINION

                                   I. BACKGROUND

      A jury convicted Song of seven counts of rape of a child and four counts of
aggravated sexual battery. He was sentenced to 65 years to be served at 100 percent in the
Tennessee Department of Correction. His convictions and sentence were affirmed by the
Court of Criminal Appeals in November 2005,1 and his application for permission to appeal
was denied by the Supreme Court four month’s later.

        On September 1, 2009, in a petition for a declaratory judgment, Song requested that
the trial court order DCS “to release all copy of all ‘Investigative Records’” in his case
without delay. DCS and the State of Tennessee (“State”) moved to dismiss the petition based
upon the two following positions:

       (1) To the extent that the petition can be construed as seeking declaratory relief
       as against the Respondents under the Tennessee Declaratory Judgment Act,
       Tenn. Code Ann. § 29-14-101, et seq., it is barred by the Doctrine of Sovereign
       Immunity and, therefore, the court lacks subject matter jurisdiction.

       (2) To the extent the petition can be construed as a petition seeking access to
       public records pursuant to Tenn. Code Ann. § 10-7-505, state law clearly
       provides that the records in question are confidential and, therefore, the
       petition fails to state a claim upon which relief can be granted.


The trial court subsequently granted the motion on the requested grounds. The Memorandum
and Order states in pertinent part:

       Article 1, § 17 of the Tennessee Constitution provides that suits may be
       brought against the State in such a manner and in such courts as the
       Legislature may by law direct. This provision has been interpreted as a grant
       of sovereign immunity to the State; thus, no suit against the State may be
       sustained absent express authorization from the Legislature. See Coffman v.
       City of Pulaski, 422 S.W.2d 429 (Tenn. 1967). Similarly, suits against a state
       agency and a state official acting in his or her official capacity are also
       generally barred by sovereign immunity. See Colonial Pipeline Co. v.
       Morgan, 263 S.W.3d 827, 829 (Tenn. 2008).

       Tenn. Code Ann.§ 20-13-102(a) provides:

       No court in the state shall have any power, jurisdiction, or authority to
       entertain any suit against the state, or against any officer of the state acting by


       1
         State v. Young Bok Song, No. M2004-02885-CCA-R3-CD, 2005 WL 2978972 (Tenn. Crim. App.
Nov. 4, 2005).

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authority of the state, with a view to reach the state, its treasury, funds, or
property, and all such suits shall be dismissed as to the state or such officers,
on motion, plea, or demurrer of the law officer of the state, or counsel
employed for the state.


Id. This section prohibits courts from hearing cases against the State absent
waiver and requires dismissal. A waiver of sovereign immunity will not be
found “unless there is a statute clearly and unmistakably disclosing an intent
upon the part of the Legislature to permit such litigation.” . . . [T]he
Tennessee Supreme Court [has] held that the Declaratory Judgment Act does
not waive sovereign immunity.

Because petitioner seeks an order directing the respondents to release a copy
of all “investigative records” concerning Petitioner’s criminal case in the
possession of DCS, his claim is one that seeks “to reach the state, its treasury,
funds, or property,” and therefore is barred by the doctrine of sovereign
immunity. Furthermore, construing Petitioner’s Petition as one seeking access
to public records, the request must be denied, as the records in question are
confidential under Tenn. Code Ann. § 37-1-612.

Tenn. Code Ann. § 37-1-612(a) provides:

In order to protect the rights of the child and the child’s parents or other
persons responsible for the child’s welfare, all records concerning reports of
child sexual abuse, including files, reports, records, communications and
working papers related to investigations or providing services; video tapes;
reports made to the abuse registry and to local offices of the department; and
all records generated as a result of such processes and reports, shall be
confidential and exempt from other provisions of law, and shall not be
disclosed, except as specifically authorized by title 37, chapter 5, part 5, the
provisions of this part and part of this chapter.


Id. Tenn. Code Ann. § 37-1-612, enumerates exceptions to the general rule of
confidentiality, providing access to such records to certain people; however,
“[t]hose accused of child sexual abuse are not among the exceptions to Tenn.
Code Ann. § 37-1-612.” “Furthermore, Tenn. R. Crim. P. 16(a)(2) prohibits
discovery and inspection of reports and other internal documents made by state



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       agents in connection with the investigation and prosecution of the case.” Id.
       Therefore, Petitioner is not entitled to the records he seeks.


(Internal citations omitted). Song filed a timely notice of appeal.


                                        II. ISSUES

       Although Song has presented many issues for review, only one is properly before us:
Did the trial court err in granting the motion to dismiss.


                             III. STANDARD OF REVIEW

       As stated by this court in McConnell, et al v. Fuller, No. E2010-00530-COA-R3-CV,
20011 WL 538855 (Tenn. Ct. App. E.S., Feb. 15, 2011), relying upon the Tennessee
Supreme Court case of Stein v. Davidson Hotel Co., 945 S.W. 2d 714 (Tenn. 1997), the
standard of review as to the granting of a motion to dismiss is as follows:

       A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a claim
       upon which relief can be granted tests only the legal sufficiency of the
       complaint, not the strength of a plaintiff’s proof. Such a motion admits the
       truth of all relevant and material averments contained in the complaint, but
       asserts that such facts do not constitute a cause of action. In considering a
       motion to dismiss, courts should construe the complaint liberally in favor of
       the plaintiff, taking all allegations of fact as true, and deny the motion unless
       it appears that the plaintiff can prove no set of facts in support of [his/]her
       claim that would entitle [him/]her to relief. Cook v. Spinnaker’s of Rivergate,
       Inc., 878 S.W. 2d 934, 938 (Tenn. 1994). . . . [W]e take all allegations of fact
       in the plaintiff’s complaint as true, and review the lower courts’ legal
       conclusions de novo with no presumption of correctness. Tenn. R. App. P.
       13(d); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996);
       Cook, supra.

Stein, 945 S.W.2d at 716. Matters outside the pleadings should not be considered in deciding
whether to grant a motion to dismiss. Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.
3d 691, 696 (Tenn. 2002).




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      As to how appellate courts should treat pro se litigants, we have noted previously as
follows:

       Parties who decide to represent themselves are entitled to fair and equal
       treatment by the courts. The courts should take into account that many pro se
       litigants have no legal training and little familiarity with the judicial system.
       However, the courts must also be mindful of the boundary between fairness to
       a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the
       courts must not excuse pro se litigants from complying with the same
       substantive and procedural rules that represented parties are expected to
       observe.

       The courts give pro se litigants who lack formal legal training a certain amount
       of leeway in drafting their pleadings and briefs. Accordingly, we measure the
       papers prepared by pro se litigants using standards that are less stringent than
       those applied to papers prepared by lawyers.

       Pro se litigants should not be permitted to shift the burden of the litigation to
       the courts or to their adversaries. They are, however, entitled to at least the
       same liberality of construction of their pleadings that Tenn. R. Civ. P. 7, 8.05,
       and 8.06 provide to other litigants. Even though the courts cannot create
       claims or defenses for pro se litigants where none exist, they should give effect
       to the substance, rather than the form or terminology, of a pro se litigant’s
       papers.

See Alex Lyon & Son Sales Managers and Auctioneers, Inc. v. Boles, No. M2010-00388-
COA-R3-CV, 2010 WL 3895520, at *2 (Tenn. Ct. App. M.S., Oct. 5, 2010) (quoting MBNA
Am. Bank, N.A. v. Baker, No. M2004-02239-CO-R3-CV, 2007 WL 3443600, at *3 (Tenn.
Ct. App. M.S., Nov. 15, 2007)) (citations omitted).


                                     IV. DISCUSSION

                                              A.

        Article 1, Section 17 of the Tennessee Constitution provides in pertinent part that
“[s]uits may be brought against the State in such manner and in such courts as the Legislature
may by law direct.” This provision has been interpreted by courts in this state as a grant of
sovereign immunity to the state. Thus, no suit may be sustained against the state absent the



                                              -5-
express authorization of the Legislature. See Greenhill v. Carpenter, 718 S.W.2d 268, 270
(Tenn. Ct. App. 1986) (citing Coffman v. City of Pulaski, 422 S.W.2d 429 (Tenn. 1967)).

       The constitutional prohibition is codified in Tenn. Code Ann. § 20-13-102(a):

       No court in the state shall have any power, jurisdiction, or authority to
       entertain any suit against the state, or against any officer of the state acting by
       authority of the state, with a view to reach the state, its treasury, funds, or
       property, and all such suits shall be dismissed as to the state or such officers
       on motion, plea, or demurrer of the law officer of the state, or counsel
       employed for the state.

       Accordingly, sovereign immunity prohibits the trial court from hearing this matter
against the state unless the state has waived its sovereign immunity. A waiver requires a
clear and unmistakable disclosure of an intent to waive on the part of the Legislature. The
Declaratory Judgment Act does not provide such a waiver. Colonial Pipeline Co. v. Morgan,
263 S.W. 3d 827, 853 (Tenn. 2008). Song has not cited any legal authority that would
support a waiver of sovereign immunity and we have found none. We affirm the dismissal
of Song’s petition as barred by the doctrine of sovereign immunity.


                                               B.

       The trial court also construed Song’s petition as one seeking access to public records
pursuant to Tenn. Code Ann. § 10-7-503. The records sought by Song are the investigative
records of DCS concerning the minor victim in Song’s criminal case. The trial court ruled
that Song had failed to state a claim upon which relief could be granted because the records
are confidential under state law.

       Tenn. Code Ann. § 37-1-612(a) makes all reports of child sexual abuse confidential.
The statute specifically provides:

       In order to protect the rights of the child and the child’s parents or other
       persons responsible for the child’s welfare, all records concerning reports of
       child sexual abuse, including files, reports, records, communications and
       working papers related to investigation or providing services; video tapes;
       reports made to the abuse registry and to local offices of the department and
       all records generated as a result of such processes and reports, shall be
       confidential and exempt from other provisions of law, and shall not be



                                               -6-
       disclosed, except as specifically authorized by chapter 5, part 5 of this title, the
       provisions of this part and part 4 of this chapter.

The statute provides access to the following: (a) law enforcement officers investigating child
sexual abuse, (b) the district attorney general, (c) grand jurors through power of a subpoena,
(d) those engaged in genuine research and audits, (e) probation officers or the like charged
with presenting information in judicial or administrative proceedings, and (f) those treating
the child. See State v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997). Song does
not meet any exception to the rule.

       In addition, Tenn. R. Crim. P. 16(a) (2) provides in pertinent part:

       (a) Disclosure of Evidence by the State.

       (2) Information Not Subject to Disclosure. . . . this rule does not authorize the
       discovery or inspection of reports, memoranda, or other internal state
       documents made by the district attorney general or other state agents or law
       enforcement officers in connection with investigating or prosecuting the case
       ....

       Song has not cited any authority that would allow disclosure to him of the records he
requests. We further note that the issue of disclosure of records was ruled upon in Song’s
direct appeal to the Court of Criminal Appeals. See State v. Young Bok Song, 2005 WL
2978972 at *8. The trial court therefore properly found that Song’s request should be
dismissed for failure to state a claim.


                                     V. CONCLUSION

       The judgment of the trial court is affirmed and this cause is remanded for collection
of costs below. The costs on appeal are assessed against the appellant, Young Bok Song.




                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




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