                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     June 9, 2009 Session

   THOMAS M. GAUTREAUX v. INTERNAL MEDICINE EDUCATION
                   FOUNDATION, INC.

                   Appeal from the Chancery Court for Hamilton County
                      No. 08-0008    Howell N. Peoples, Chancellor



                No. E2008-01473-COA-R3-CV - FILED OCTOBER 30, 2009


CHARLES D. SUSANO , JR., J., dissenting.

       I respectfully dissent. I adhere to the rationale of my dissent in Fodness v. Newport & Cocke
County Economic Dev. Comm’n, Inc., E2004-01491-COA-R3-CV, 2005 WL 607964 at *10 (Tenn.
Ct. App. E.S., filed March 16, 2005) (Susano, dissenting). In Fodness, I stated the following:

               . . . 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.”).
               I agree with the majority that the last paragraph of subsection (d)(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.

(Footnote in original omitted.) In the instant case, the majority correctly recognizes that the
appellant satisfies the “two (2) full-time staff members” exception and the “§ 501(c)(3)” exception
in Tenn. Code Ann. § 10-7-503(d)(1) and (2) respectively. Accordingly, I would hold that the
records in question are not subject to public inspection and would reverse the trial court’s judgment
and enter judgment for the defendant/appellant, Internal Medicine Education Foundation, Inc.




                                                      _______________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




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