                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     June 30, 2003 Session

           TOM HENDERSON, ET AL. v. CITY OF CHATTANOOGA

                    Appeal from the Chancery Court for Hamilton County
                    No. 02-0131 Part 1  W. Frank Brown, III, Chancellor

                                 FILED SEPTEMBER 29, 2003

                                 No. E2002-02165-COA-R3-CV


Five police officers employed by the Chattanooga Police Department were involved in a physical
altercation with Torris Harris (“Harris”) which ended with Harris’ death. Harris allegedly had ties
to the local Crips gang. Pursuant to the Public Records Act, a local news station requested
photographs of these five officers as well as a sixth officer who had prepared the official police
report. After the request was denied by the City of Chattanooga, the news station filed a petition
seeking to compel production of the photographs. After a trial, the Trial Court concluded the
photographs were “public records” and the undercover officer exemption found in the Public
Records Act did not apply to these officers. The Trial Court also held that disclosing the
photographs would not place the officers or their families at substantial risk of harm and, therefore,
would not violate the officers’ constitutional right to privacy. After ordering production of the
photographs, the Trial Court refused to award attorney fees incurred by the successful petitioners.
We affirm.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.

Phillip A. Noblett and Lawrence W. Kelly, Chattanooga, Tennessee, for the Appellant City of
Chattanooga.

Bryan H. Hoss, Chattanooga, Tennessee, for the Appellants Justin B. McCommon and Fraternal
Order of Police, Rock City Lodge No. 22.

W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the Appellants Southern States Police
Benevolent Association, Inc., Martin R. Penny, Christopher Smith, Mark A. Smeltzer and David
Allen.
Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the Appellees Tom Henderson,
Steve Hunsicker, and Freedom Broadcasting of Tennessee, Inc., d/b/a/ WTVC News Channel 9.

Douglas R. Pierce and D. Wes Sullenger, Nashville, Tennessee, for the Appellee Tennessee
Association of Broadcasters.

Richard L. Hollow, Knoxville, Tennessee, for the Appellee Tennessee Press Association.

Anthony A. Jackson and Bruce C. Bailey, Chattanooga, Tennessee, for the Appellee Chattanooga
Publishing Company.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Janet
M. Kleinfelter, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee.


                                             OPINION

                                            Background

                On December 26, 2001, five police officers with the Chattanooga Police Department
(“CPD”) were involved in a physical altercation while attempting to subdue Harris, who allegedly
had ties with the local Crips gang. Harris died during the physical altercation. Thereafter, a local
news station requested photographs of the police officers pursuant to the Tennessee Public Records
Act. The City of Chattanooga (“the City”) refused to provide the photographs and this lawsuit
ensued. The issues involve whether the photographs are public records and, if so, whether they are
exempt from disclosure pursuant to the undercover officer exemption found in the Public Records
Act. Also at issue is whether production of the photographs would violate the officers’ constitutional
right to privacy by placing them or their families at substantial risk of harm. The final main issue
is whether the Public Records Act violates the Due Process Clause of the Fifth Amendment to the
United States Constitution as incorporated into the Fourteenth Amendment.

                The factual findings of the Trial Court regarding the events surrounding Harris’ death
are not in dispute among the parties to this lawsuit. On the relevant date, Officer Justin McCommon
(“McCommon”) was in full uniform and driving a marked police cruiser. McCommon observed a
vehicle “roll” through a stop sign and pull into a nearby driveway. The driver then exited the
vehicle. McCommon called to verify the licence tags on the vehicle and decided to investigate
further. McCommon approached the driver of the vehicle, Harris, who informed McCommon that
he had pulled into the driveway because he was about to run out of gas. After McCommon observed
the gas gauge showed the tank was half full, Harris stated he actually had stopped to visit a friend.
A civilian (“Civilian”) who resided in the house then came outside and informed McCommon that
he did not know Harris. When McCommon asked Harris for his drivers license, Harris fled with
McCommon in pursuit. The Trial Court described the next sequence of events as follows:



                                                 -2-
               Mr. Harris was able to return to his vehicle, enter the vehicle and start
               the engine. Officer McCommon was on the outside trying to
               disengage the vehicle. He was able to remove the keys once but Mr.
               Harris regained the keys and restarted the vehicle. Officer
               McCommon was next to Mr. Harris, the driver door was open, and
               the vehicle was rolling backwards. Officer McCommon’s use of
               mace on Mr Harris had no effect. The civilian offered to help and he
               and Officer McCommon were able to get Mr. Harris from the vehicle.
               The vehicle had stopped against a fence. Mr. Harris was struggling.
               Officer McCommon again tried to use his mace on Mr. Harris.
               However, the struggle was such that Officer McCommon was
               adversely affected by the mace.

                       Officer McCommon had called dispatch when the chase
               began. In a short time four CPD officers (Allen, Smeltzer, Smith and
               Penny) arrived at the scene. The civilian and Officer McCommon
               were removed from the struggle. Mr. Harris was trying to headbutt
               the officers. He bit Officer Penny. An ambulance was called for
               Penny and McCommon. The four other officers were trying to get
               Mr. Harris handcuffed to stop his struggle and fight. He was finally
               cuffed after a choke or sleeper hold was applied to his neck. The
               Officers noticed that Mr. Harris was limp. They uncuffed him and
               started resuscitation measures. Upon arrival the paramedics
               continued with life-saving efforts. However, Mr. Harris was
               pronounced dead at the hospital. The cause of death was listed as
               blunt trauma to the neck. Obesity was also listed as a factor. Mr.
               Harris was described as 5'6" tall and 230 pounds.…

                 The next day, a car containing several people stopped in front of the house where
these events occurred and threatened the Civilian’s wife. A few days later, a retired CPD Lieutenant,
C.L. Wilhoite, Jr. (“Wilhoite”), saw three young men purchasing a large amount of ammunition at
a local WALj MART store and overheard them discussing a wake which was to take place the next
day. The only wake known by CPD to be taking place the next day was that of Harris. Wilhoite
testified all three of these men were wearing blue clothing, a color which has been an identifying
color of the local Crips gang. When Harris was fourteen years old, he was arrested for carrying a
firearm and at that time identified himself as a member of the East Side Crips. Harris was wearing
blue camouflage clothes and blue tennis shoes on the day he died.

                The five officers involved in the incident were placed on administrative leave with
pay, which lasted for sixteen (16) days. An investigation into Harris’ death was conducted by CPD
and the Tennessee Bureau of Investigation. These agencies ultimately found no criminal wrongdoing
by the five officers and no criminal charges were filed. When the investigations were completed,



                                                 -3-
a report was released to the public discussing the findings made by the agencies. This report
contained the names of the five officers.

                 The Trial Court discussed two other events which it concluded were relevant to the
issues in this case. First, a cousin of Harris was arrested and made threatening remarks to the police
officers because Harris had been killed. Second, two officers stopped a man whom they thought had
an outstanding arrest warrant for robbery. This person had no identification and was handcuffed
briefly while the officers verified his identity. He was released when the officers determined he was
not the person who was wanted for robbery. This individual thanked the officers for being nice to
him, then said that “the *** men who did that [killed] to Rooster (Mr. Harris) should be dealt with.”

                Approximately one month after Harris died and prior to completion of the
investigation into Harris’ death, Tom Henderson (“Henderson”), an Assistant Manager for Channel
9 in Chattanooga, sent a letter to CPD requesting, among other things, photographs of the five
officers directly involved in the Harris incident. Henderson also requested the photograph of Officer
Matthew Webb (“Webb”), the officer who prepared the official police report on the events of
December 26. CPD refused to release these six photographs, claiming their release could jeopardize
the ongoing investigation and were otherwise protected from disclosure by the officers’
constitutional right to privacy. Thereafter, Steve Hunsicker (“Hunsicker”), the News Director for
Channel 9, sent a follow-up letter requesting the same photographs. CPD maintained its position
that the photographs were not subject to release for the reasons previously cited. Both letters from
Channel 9 specifically stated the requests for the photographs were being made pursuant to the
Public Records Act.

                This litigation began when Henderson, Hunsicker, and Freedom Broadcasting of
Tennessee, Inc., d/b/a WTVC News Channel 9 (“Freedom Broadcasting”), filed a petition against
the City seeking access to the photographs of the six police officers. They requested the Trial Court
enter an order requiring the City to show cause why the photographs should not be furnished and for
an award of attorney fees because the City had willfully refused to turn over the photographs in
violation of the Public Records Act.

                After the original petition was filed, numerous individuals and entities intervened in
this litigation either in support of or in opposition to producing the photographs. For ease of
reference, we will collectively refer to all of the parties who seek production of the photographs as
“Petitioners.” These include: Henderson, Hunsicker, Freedom Broadcasting, Chattanooga
Publishing Company, the Tennessee Association of Broadcasters, the Tennessee Press Association,
Inc., the Society of Professional Journalists, and the Tennessee Associated Press Managing Editors.

               Since the City opposed release of the photographs, we will collectively refer to all of
the parties who oppose release of the photographs as “Respondents.” These include: the City of
Chattanooga, Officers Justin McCommon, Martin Penny, Christopher Smith, Mark Smeltzer and




                                                 -4-
David Allen, the Fraternal Order of Police, Rock City Lodge No. 22, and the Southern States Police
Benevolent Association.1

               The final party to this litigation is the State of Tennessee. The state is a party because
Respondents have challenged the constitutionality of Tennessee’s Public Records Act. The state
maintains the Public Records Act is constitutional and takes no position on whether the photographs
should be produced.

                 The various issues at trial and on appeal pertain only to production of the photographs
of the six officers. The trial was in July of 2002 and the City’s first witness was William Shelley
Parker, Jr., (“Parker”), a local attorney and legal advisor for the City. Parker testified that there was
an ongoing investigation being conducted by CPD’s Major Crimes Unit surrounding the
circumstances of Harris’ death at the time of Petitioners’ original request. As such, CPD had
concerns that releasing the photographs could compromise the integrity of that investigation. Parker
also testified that undercover police officers have a constitutional expectation of privacy in certain
personnel information and referenced an opinion by the United States Court of Appeals for the Sixth
Circuit so holding. It was for these reasons CPD denied release of the photographs. Parker advised
that other portions of the officers’ personnel files were made available to Petitioners, although he
was not aware if these records ever were inspected. Parker explained that upon receiving the
requests for the photographs, he sent an email to the six officers inquiring if any of them desired to
waive their constitutional right to privacy so their photographs could be given to the news media.
All six officers declined this invitation.

                According to Parker, the investigation being conducted by the Major Crimes Unit was
not closed until May or June of 2002. Parker was concerned that until this investigation was
completed, releasing photographs of the officers could jeopardize the investigation because a witness
could “make up stuff” about an officer if that witness was able to identify a specific officer prior to
being interviewed. Parker testified Harris had ties to a local gang. Parker also stated a threat had
been made to the wife of the Civilian who had assisted McCommon in subduing Harris. This threat
intensified concerns that the gang would retaliate against the officers and/or their families if their
identities were made public. Parker then described the dilemma in which the City had been placed
by Petitioners’ request for photographs. If the City did not release the photographs, it was subject
to being sued by Petitioners to compel production. If the City did release the photographs, it was
subject to being sued by the officers claiming a violation of their federal constitutional right to
privacy.




         1
            The original Petitioners initially sought personnel information and p ictures o f all officers employed by CPD,
except those serving in an undercover capacity. As this case developed, however, the original Petitioners twice amended
their petition and eventua lly limited their request only to the photographs of the six officers identified above.
Approximately eleven CPD officers who were not directly involved in the events of December 26 originally were allowed
to intervene. Once Petitioners narrowed their request, these eleven claims were dismissed for lack of standing. The
dismissal of these claims is not at issue on ap peal.

                                                           -5-
                 Parker testified the job description for every CPD officer states that the officer can
be assigned to perform any duty the Chief of Police deems fit, which would include undercover
assignments. Therefore, “every officer in the department is subject to an assignment in an
undercover capacity or a covert capacity.” Parker stated there are approximately 450 CPD officers
and an additional 49 cadets in the academy. Parker acknowledged, however, that it would not be
practical to assign every officer to undercover work and some of the officers have been “in the press
too much” to be effectively used in an undercover capacity. Parker admitted CPD’s web page
contains pictures of several uniformed officers, including those who have won awards.

               The City’s next witness was Sergeant James Timothy Carroll (“Carroll”), a twenty
year veteran of CPD, currently assigned to the Crimes Against Persons Unit of the Major Crimes
Division. Carroll was involved in the homicide investigation of Harris’ death. According to Carroll:

                       In this particular case, we had several officers involved. We
               had … [two] civilians involved. If we gave out detailed information
               about the case – photographs, anything like that – and if I wanted to
               put together a photo lineup to show a witness that may have seen
               something, it would compromise that photo lineup. It would taint it.

Carroll testified the investigation was conducted to determine if a criminal act was committed by the
officers and Civilian involved in the incident. The investigation was completed in May of 2002 and
no photo line-ups were ever used in the investigation.

                The fact that Harris had been involved in a gang concerned Carroll about the safety
of the officers, as well as the safety of the Civilian and his wife. Carroll opined that if the
photographs were made public, the safety of the officers and their families would be placed in
jeopardy even though the officers were cleared of any criminal wrongdoing. Carroll went on to add
that regardless of what gang affiliation someone may have, once a member of the gang is killed the
other gang members “will and have retaliated.” As part of his investigative file, Carroll maintained
a police report detailing the threat made to the Civilian’s wife in addition to the information provided
by Wilhoite concerning several young men who were wearing blue clothing and buying a large
amount of ammunition. Carroll admitted, however, that he was not aware of any threats made
directly to the five officers involved in the struggle with Harris. Other than Harris identifying
himself as a member of the Crips when he was arrested several years ago, Carroll was not aware of
any “positive connection” establishing Harris as a gang member.

              Carroll testified that he was not suitable for undercover work because he has had too
much public exposure and would be recognized too easily. When asked what type of officer he
would use in an undercover capacity, Carroll stated:

                        We like to get an officer that would like to work in our unit,
                younger officers with several years of experience, or at least up to
                their third year or about to be able to go to investigative mode, put


                                                  -6-
               them in an environment where they’re not identifiable like most of us
               who have been on TV. They can extract information, do surveillance,
               where I couldn’t do that without just having to have completely
               darked-out windows or something. They could drive up in fairly
               open windows and not be recognized as police.

Carroll stated an officer’s safety would be compromised if he was engaged in undercover work and
his picture made public. Carroll acknowledged that the five officers involved in the physical struggle
with Harris were uniformed police officers who drove marked police vehicles. Uniformed officers
generally have more contact with the citizens than any other type of officer employed by CPD.
Carroll described CPD as “community-oriented.” CPD actively encourages uniformed officers to
get to know the citizens on their “beat.” Carroll admitted some of the most effective officers are
those which have established a good rapport with the community in which he or she serves.

                 The City’s next witness was Deputy Chief Steve Parks (“Parks”), a twenty-four year
veteran of CPD in charge of Major Investigations and Support. This unit investigates homicides,
narcotics violations, vice, auto theft, and fraud, among other things. Parks utilizes undercover
officers in these types of investigations and acknowledged any officer with CPD is subject to being
assigned undercover work. According to Parks, there is a “normal benchmark” of using officers with
at least three years of experience for undercover assignments, although exceptions have been made.
The amount of public exposure an officer has will impact which officer is assigned undercover work.
Those with longer tenure are less likely to be given undercover assignments as they are more likely
to be recognized in the community as a police officer. Parks described undercover assignments as
“very dangerous” because they typically involve investigating “very violent and dangerous people.”
According to Parks, the majority of the officers directly involved in the Harris incident have two to
two and one-half (2 - 2 ½) years of experience and are part of CPD’s pool of potential undercover
officers. Parks then added that all five officers have expressed an interest in performing undercover
work. If pictures of these officers are made public, it could “potentially” impact CPD’s ability to
utilize them in an undercover capacity.

                The next witness was Sergeant Edwin McPherson (“McPherson”) who has been
employed by CPD since 1992. McPherson testified he worked in an undercover capacity several
years ago and during that time made undercover drug purchases. While performing this undercover
work, McPherson was present when there was an incident involving another officer hitting “a guy’s
head on a car.” This incident was caught on film and contained shots of McPherson in plain clothes.
After the film was broadcast on the news, McPherson tried to make an undercover purchase and his
life was threatened when the person from whom he was attempting to make the purchase told him
that he had seen McPherson on the news. After this happened, McPherson no longer worked
undercover.

              McPherson also described an event where he was at McDonald’s with his seven year
old daughter. A person named Edgar Bailey approached McPherson stating he knew who
McPherson was. McPherson did not know who Bailey was at that time. Bailey threatened to “blow


                                                 -7-
[McPherson’s] brains out,” and this threat was made in front of McPherson’s daughter. McPherson
testified to a separate incident involving his sister which took place shortly after the McDonald’s
incident. Specifically, several people were attempting to shoot bullets into his sister’s house.
However, they shot into the wrong house and “riddled” the house of a preacher who lived next door
to his sister. McPherson then testified:

                        After the case went to court and they were found guilty, they
                come back that night again and shot at my sister’s house, who was
                eight months pregnant at the time. One of [the] bullets – she had the
                refrigerator door open, and the bullet went by her head and blowed a
                hole that big into the refrigerator. (Indicating).

The case that went to court to which McPherson was referring involved a criminal action brought
against a relative of Edgar Bailey. At least two arrests were made for shooting into the house of the
preacher and McPherson’s sister, and one of those arrested was Edgar Bailey. McPherson attributes
the shooting at his sister’s to the publicity he received a couple of years previously when the footage
was shown on the news showing him in plain clothes. Notwithstanding the foregoing, McPherson
admitted he subsequently was featured on the Fox television show COPS and that he had agreed
journalists could accompany him while filming his day-to-day police activities. McPherson cited
he had no problem with the COPS filming because he had “been exposed anyway” and no longer
performed undercover assignments.

                The first officer to testify that was directly involved in the Harris incident was Officer
Martin Roy Penny (“Penny”). Penny is a patrol officer with CPD who is assigned to patrol an area
of Chattanooga which he describes as having “the highest crime rate in the City.” Penny testified
he was in the pool of CPD officers who could be selected for undercover work. Penny has
specifically expressed his desire to work undercover assignments. According to Penny, release of
a posed photograph, such as the photograph contained in his personnel file, would put him and his
family at risk. Penny admitted he has had “quite a bit” of exposure in the local media in the past.
He was briefly on the news going into a courtroom to testify before a grand jury and gave several on-
camera interviews when he worked for the Red Bank Police Department. Penny recently won the
Patrol Officer of the Year award and the ceremony was videotaped by local news agencies, although
Penny declined to give any interviews. Penny acknowledged that quite a few of the citizens in the
high crime area he patrols know him by name. Penny testified that he was involved in another “in-
custody death case” while employed for the Soddy Daisy Police Department. As a result of this
other incident Penny was sued for alleged civil rights violations. Although the lawsuit eventually
was dismissed, it was covered by the local news media. Penny stated his involvement in the Harris
incident made him a target for gang retaliation. Penny was aware of the threat that was made against
the Civilian’s wife as well as the large ammunition purchase made shortly after Harris died.

               Penny described a situation where he was involved in detaining a suspect for a brief
period of time until he could determine if the suspect had an outstanding arrest warrant. This
suspect, while being detained, told Penny he was a “cool cop” and “[t]hem cops that done that to


                                                   -8-
Rooster (i.e., Harris), they got to be dealt with.” The suspect obviously did not know Penny was one
of the officers involved in the Harris incident. Penny acknowledged that quite a few of the citizens
in his patrol area know his name. Penny has taken steps when possible to make sure his home
address and unlisted telephone number are not made known. Penny owns his home and his name
and home address are contained in the public records of Hamilton County tax assessor.

                Officers McCommon, Smith, Allen and Smeltzer also testified at trial. Their
testimony generally was consistent with that of Penny to the effect that: (1) they were in the pool of
officers available for undercover work; (2) they wanted to perform undercover work in the future;
(3) publication of their photos would, in their opinion, put them and their families at great risk; (4)
they did not want their photograph published; (5) they were aware of the threat made to the
Civilian’s wife; (6) they were aware of the large ammunition purchase made shortly after Harris
died; and (7) their job necessarily requires them to interact with the general public on a daily basis.
In addition to the foregoing, McCommon testified his job has required him to go into the homes of
Crips gang members from time to time. Sometimes the gang members have been suspects in a crime
and at other times they have been the victims. Smith also testified that his property tax records were
in the “public domain” and his telephone number was listed. Allen testified his face was seen on the
COPS footage for about 10 seconds.

                The City’s final witness was Jimmy Dotson (“Dotson”), who has been CPD’s Chief
of Police since October of 1997. Dotson testified it was his decision not to release the photographs
of the six officers. Dotson made this decision because of the “possibility that some of our officers
could’ve been at risk and could’ve been in harm’s way. Not only the officers, but also their family
members.” Dotson was aware of the threats made to the Civilian’s wife as well as the ammunition
purchase when this decision was made. The names of the officers involved in the Harris incident
were released to the public, but not until the investigation into Harris’ death had been completed.

                On August 13, 2002, the Trial Court issued a very thorough and considered
Memorandum Opinion. After discussing the relevant facts, the Trial Court concluded there were
essentially three primary issues to be decided:

               First, is the release of the photographs prohibited by any
               constitutional right of privacy which these officers possess? Second,
               is the release of the photographs excepted by the [Tennessee Open
               Record Act’s] police undercover exception?             Third, if the
               photographs are released, should Chattanooga be ordered to pay the
               reasonable attorney’s fees for (some or all of) the Petitioners?

               The Trial Court began its analysis by observing that undercover police officers have
a federally protected constitutional right to privacy regarding dissemination of certain personal
information, as set forth in Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998).
According to the Trial Court, the Sixth Circuit held in Kallstrom that information such as addresses
and phone numbers contained in an undercover police officer’s personnel file may well be protected


                                                 -9-
from disclosure under the Due Process Clause of the Fourteenth Amendment if disclosure would
place the officer or his or her family at substantial risk of serious harm. After noting this was a high
standard to prove, the Trial Court concluded Respondents had not shown that release of the
photographs would place the officers or their families at a substantial risk of harm. Next, the Trial
Court held that the undercover officer exception contained within the Public Records Act did not
apply to the officers in the present case, refusing to read the exception “to include any officer who
could at any time possibly work in an undercover or covert role.” Next, the Trial Court concluded
that while production of the requested photographs would be ordered, the City’s refusal to produce
them was not in bad faith and an award of attorneys was not appropriate. Because the officers had
been accorded due process, the Trial Court specifically declined to reach the issue of the whether the
Public Records Act was constitutional and met the procedural due process requirements set forth in
Kallstrom.

                Both Petitioners and Respondents appeal the Trial Court’s final judgment.2
Petitioners claim the Trial Court erred when it refused to award their attorney fees. Respondents
raise several issues. With regard to the Tennessee Public Records Act, Respondents claim the
photographs are not “public records” and, even if they are, they are exempt from disclosure pursuant
to the undercover officer exception. Respondents also claim the photographs are exempt from
disclosure because they were part of an ongoing criminal investigation being conducted at the time
the request was made. Respondents also raise two federal constitutional issues. First, they claim if
the photographs are public records and not otherwise exempt from disclosure under Tennessee law,
then the officers’ constitutional right to privacy prohibits their release. Finally, Respondents argue
the Public Records Act violates their right to procedural due process.

                                                      Discussion

                The factual findings of a trial court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

              Initially, we will discuss Respondents’ claim that the photographs did not have to be
produced because they were part of an ongoing criminal investigation into Harris’ death.
Respondents claim that when the letters requesting the photographs were sent by Henderson and
Hunsicker, the criminal investigation was ongoing and the City did not have to turn them over.
Respondents then argue that the ongoing criminal investigation protected disclosure, even after it
was no longer ongoing, because Petitioners never renewed their request once the investigation was


         2
           All of the various Petitioners and R espo ndents have filed briefs and participated in this appeal. For ease of
reference, we have identified the issues as being raised collectively by either Petitioners or Respondents, even though
one or more o f the actua l parties m ay not have jo ined in raising a p articular issue.

                                                          -10-
complete. We disagree. For present purposes only, we will assume that the ongoing criminal
investigation into Harris’ death somehow protected the photographs in the officers’ files from
disclosure at that time. Nevertheless, because Petitioners were litigating the propriety of their
request and because the investigation was completed prior to trial, we believe the initial requests
should be deemed ongoing for purposes of this litigation. As Petitioners’ request remained pending
after the criminal investigation was over, the request was pending at the time of trial and there was
no ongoing criminal investigation at that time. We find this position of Respondents to be without
merit. Having rejected this argument, we now turn to the remaining issues, and we will begin with
the state law issues.

       I.      The Tennessee Public Records Act.

               The Public Records Act (“Act”) is found at Tenn. Code Ann. §§ 10-7-503 through
10-7-507 and generally provides that, with certain exceptions, all state, county and municipal records
shall be open to the public. The Act is to be construed broadly “so as to give the fullest possible
public access to public records.” Tenn. Code Ann. § 10-7-505(d). When inspection of public
records is denied, the burden of proof is on the official who possesses the records to prove by a
preponderance of the evidence that there was justification for nondisclosure. Tenn. Code Ann. § 10-
7-505(c).

               There are several sections of the Act which are relevant to this appeal, beginning with
§10-7-503(a), which states as follows:

               Except as provided in § 10-7-504(f), all state, county and municipal
               records …, except any public documents authorized to be destroyed
               by the county public records commission in accordance with
               § 10-7-404, 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.

              Tenn. Code Ann. § 10-7-503(c) discusses inspection of personnel records of law
enforcement officers, providing:

               (1) Except as provided in § 10-7-504(g), all law enforcement
               personnel records shall be open for inspection as provided in
               subsection (a); however, whenever the personnel records of a law
               enforcement officer are inspected as provided in subsection (a), the
               custodian shall make a record of such inspection and provide notice,
               within three (3) days from the date of the inspection, to the officer
               whose personnel records have been inspected:

                       (A)     That such inspection has taken place;


                                                 -11-
                           (B)      The name, address and telephone number of the
                                    person making such inspection;

                           C)       For whom the inspection was made; and

                           (D)      The date of such inspection.

                  (2) Any person making an inspection of such records shall provide
                  such person's name, address, business telephone number, home
                  telephone number, driver license number or other appropriate
                  identification prior to inspecting such records.

                The exception noted in the previous section is § 10-7-504(g) which applies to
inspection of personnel information of designated undercover police officers. The relevant portion
of this statutory exception to disclosure states:

                  10-7-504(g)(1)(A) Personnel information of any police officer
                  designated as working undercover may be segregated and maintained
                  in the office of the chief law enforcement officer. Such segregated
                  information shall be treated as confidential under this subsection (g).
                  Such segregated information is the address and home telephone
                  number of the officer as well as the address or addresses and home
                  telephone number or numbers of the members of the officer's
                  household and/or immediate family. Information in such file which
                  has the potential, if released, to threaten the safety of the officer or the
                  officer's immediate family or household members may be redacted if
                  the chief law enforcement officer determines that its release poses
                  such a risk.

                         (B) If the person requesting the information or the officer
                  disagrees with the determination of the chief law enforcement officer,
                  the decision shall be reviewed in a show cause hearing in chancery
                  court.

Tenn. Code Ann. § 10-7-504(g)(emphasis added).3




         3
           Tenn. Code Ann. § 10-7-504(f)(1) provides that certain information of public employees in the possession
of a governmental entity is to be treated as confidential. Specifically, this section protects from disclosure a pub lic
emp loyee’s “unpublished telephone numb ers; bank acc ount info rmatio n; social secur ity number; d river license
information except where driving or operating a vehicle is part of the employee’s job description or job duties or
incidental to the performance of the employee’s job; and the same information of immediate family members or
household members.”

                                                         -12-
               A.      Whether the Photographs of the Six Officers are “Public
                       Records” as Defined Under the Act.

                 When creating the Public Records Commission at Tenn. Code Ann. § 10-7-301 et
seq., the legislature also defined the various different types of records over which the Commission
had responsibility, including the following definition of public records:

               "Public record or records" or "state record or records" 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 agency ….

Tenn. Code Ann. § 10-7-301(6)(emphasis added). Although this definition is not contained within
what is commonly referred to as the Public Records Act, our Supreme Court relied on § 10-7-301(6)
in Griffin v. City of Knoxville, 821 S.W.2d 921 (Tenn. 1991) when concluding a deceased’s
handwritten notes confiscated by the Knoxville Police Department during a homicide investigation
were public records open to inspection under the Act. Accordingly, we will use this definition in the
present case when determining whether the pictures of CPD officers are public records. It is also
noteworthy that the Griffin Court reiterated its previous approval of this Court’s opinion in Board
of Education v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) and our description
of the Act as “an all encompassing legislative attempt to cover all printed matter created or received
by government in its official capacity and whether intended to be retained temporarily or retained
and preserved permanently.” Griffin, 821 S.W.2d at 923 (quoting Board of Education v. Memphis
Publishing Co., 585 S.W.2d 629, 630 (Tenn. Ct. App. 1979)).

                 As with any employer, CPD gathers certain information which it maintains in each
employee’s personnel file. Some of this information is required to be maintained by various federal
and/or state laws, such as the federal immigration, social security, and income tax codes. In light
of the very broad definition of public records and giving the Act a liberal construction, as we must,
we cannot say that when a photograph of an officer is taken and placed in his or her personnel file,
that it was not “made … in connection with the transaction of official business by any governmental
agency.” Tenn. Code Ann. § 10-7-301(6). To do so would require us to make a blanket
pronouncement that preparing and maintaining personnel files on officers and other employees is
not part of CPD’s official business. We are not willing to make such a holding even though a
personnel file also may contain information an employer is not legally required to maintain, such as
a photograph.

              The issue of whether photographs of law enforcement personnel can be subject to
disclosure under the Act was addressed recently by the Western Section of this Court in the
unreported opinion of Contemporary Media, Inc. v. Gilless, No. W2000-02774-COA-R3-CV, 2002
Tenn. App. LEXIS 409 (Tenn. Ct. App. June 3, 2002), no appl. perm. appeal filed. In Gilles, a local


                                                -13-
newspaper sought disclosure of photographs from the personnel files of nineteen recently hired
deputy sheriffs in Shelby County. This Court noted that law enforcement personnel records were
open for inspection by the public pursuant to Tenn. Code Ann. § 10-7-503(c)(1), unless exempted
by § 10-7-504(g). Gilless, 2002 Tenn. App. LEXIS 409, at * 7. Although the precise issue of
whether the photographs of the deputies constituted public records as defined in the Act was not
before the Gilless Court4, it nevertheless observed that “the parties do not dispute that the requested
photographs are contained in the officers’ personnel files. Thus, absent a statutory exemption, the
Public Records Act requires that the photographs be disclosed.” Id. In the present case there also
is no dispute that the requested photographs are contained within the officers’ personnel files.

               We conclude: (1) the photographs of the six officers are “public records” as defined
in Tenn. Code Ann. § 10-7-301(6); and (2) the photographs are law enforcement personnel records
subject to inspection under § 10-7-503(c), unless exempt from disclosure under § 10-7-504(g).

                  B.        Whether the Undercover Officer Exemption in Tenn.
                            Code Ann. § 10-7-504(g) Protects the Officers’
                            Photographs from Disclosure.

               Resolution of this issue requires a closer examination of the Gilless opinion. The
Gilless Court concluded the photographs of the nineteen newly hired deputy sheriffs were covered
by this exemption, reasoning as follows:

                           Tennessee Code Annotated § 10-7-504(g)(1)(A) provides that
                  certain personnel information may be segregated and treated as
                  confidential regarding a police officer "designated as working
                  undercover." Contemporary Media notes that the record below does
                  not establish that any of the nineteen newly hired police officers were
                  actually working on an undercover assignment at the time of the
                  hearing in the trial court below. However, witnesses for the sheriff's
                  department made it clear that all nineteen new officers were
                  considered part of the pool of officers immediately available for
                  undercover assignments.          The witnesses explained that the
                  department favors using new officers for undercover work because,
                  first, they are the appropriate age to infiltrate gangs, drug networks,
                  and other criminal groups and, second, their lack of public exposure
                  makes it less likely that they will be recognized as police officers.
                  The sheriff's department would not use an officer in an undercover

         4
             In Gilless, the sheriff’s department did no t claim the photographs were no t public reco rds. Gilless, 2002
Tenn. App. LEXIS 409, at * 3. In the prese nt case, Officer McCo mmon and the F raterna l Ord er of P olice, R ock City
Lodge No. 22 ad mit the photographs are public records. While the Southern States Police Benevolent Association, Inc.,
and Officers Penny, Smith, Smeltzer, and Allen do no t expressly deny the photographs are public records, they
nevertheless invite this Court to hold that they are not as a “way of avoiding” the constitutional issues. As tempting as
this invitation is, we must respectfully decline.

                                                         -14-
                operation once the officer's face had been exposed in a newspaper or
                on television.

                        We cannot agree with the contention that the phrase
                "designated as working undercover" must be limited to officers who
                are actually working on an undercover assignment at the time of the
                request for the personal information. To hold otherwise would be in
                effect to preempt the use of the newly hired officers for undercover
                duty in the future, since the public exposure of the officer's face
                would put him or her at risk of being recognized. Therefore, we
                conclude that the phrase "designated as working undercover" as used
                in Tennessee Code Annotated § 10-7-504(g)(1)(A) would include
                officers such as the nineteen newly hired officers at issue in this case,
                who were designated as in the pool of officers immediately available
                for undercover assignment.

Gilless, 2002 Tenn. App. LEXIS 409, at ** 7 - 9 (footnote omitted).

                The Gilless Court made another holding which is pertinent to this case.
Contemporary Media argued the statute only exempted “the address and home telephone number of
the officer as well as the address or addresses and home telephone number or numbers of the
members of the officer's household and/or immediate family."                   Tenn. Code Ann. §
10-7-504(g)(1)(A). Contemporary Media then claimed that because photographs were not
specifically included, they were not exempt from disclosure. The sheriff’s department relied on
different language in the same statutory section and claimed the photographs were exempt because
they constituted information “which has the potential, if released, to threaten the safety of the officer
or the officer's immediate family or household members may be redacted if the chief law
enforcement officer determines that its release poses such a risk.” Tenn. Code Ann. 10-7-
504(g)(1)(A). Because anonymity is critical to undercover work, the sheriff's department argued the
officers' photographs clearly had the potential, if released, to threaten the safety of the officer and
his family. Gilless, 2002 Tenn. App. LEXIS 409, at ** 9, 10. This Court agreed with the sheriff’s
department, noting that the two segments of the statute should be construed together in light of the
general purpose of the statute. We then stated:

                [T]he obvious purpose of the exemption is to protect the safety of
                officers who do undercover work and to enable law enforcement
                officials to maintain effective undercover operations. Publication of
                the officers' photographs in a city-wide newspaper clearly threatens
                the safety of an officer in undercover work and compromises the
                ability of the sheriff's department to have undercover operations.
                Under these circumstances, we must conclude that the exemption to
                the Public Records Act contained in Tennessee Code Annotated
                § 10-7-504(g)(1)(A) permits the sheriff's department to redact or keep


                                                  -15-
               confidential the photographs of the nineteen newly hired deputy
               sheriffs.

Gilless, 2002 Tenn. App. LEXIS 409, at ** 11, 12.

               In the present case, Respondents rely very heavily on Gilless to support their
argument that the photographs are exempt because: (1) the officers are in the “pool” of CPD officers
immediately available for undercover work; and (2) release of their photographs would either
prohibit them from being assigned undercover work in the future or put them in danger if they are
used in such a capacity. Petitioners disagree, claiming the undercover officer exemption does not
even apply because none of the six officers were designated as working undercover and their
photographs were not segregated from their personnel files.

                 The Gilless Court correctly points out that the purpose of the exemption is to protect
the safety of undercover police officers and enable law enforcement officials to maintain effective
undercover operations. It seems quite clear to us that in order for a law enforcement agency to avail
itself of this exemption, the officer(s) must first be “designated as working undercover.” Once this
designation occurs, the statute then exempts two different groups of records. The first group
comprises the address and home telephone number of the officer as well as the address and home
telephone number of any member of the officer’s household and immediate family. However, in
order for these records to be exempt, they must be segregated and maintained in the office of the
chief law enforcement officer as specifically required by the statute. Once properly segregated, these
records are deemed confidential. The photographs at issue in the present case obviously do not fall
within this first group of exempted records.

                The second group of exempted records is described in the last sentence of § 10-7-
504(g)(1)(A) which states that “[i]nformation in such file which has the potential, if released, to
threaten the safety of the officer or the officer’s immediate family or household members may be
redacted if the chief law enforcement officer determines that its release poses such a risk.” A
straightforward reading of this last sentence leads us to conclude that it must be referring to
something other than what has been specifically identified in the first group of exempt records. It
would make absolutely no sense to refer to information which can be “redacted” if that very same
information has already been segregated and deemed confidential. Such an interpretation would
render the last sentence virtually meaningless. A statute should be construed "so that no part will
be inoperative, superfluous, void or insignificant … and to give effect to every word, phrase, clause
and sentence of the act in order to carry out the legislative intent." State v. Peele, 58 S.W.3d 701,
704 (Tenn. 2001)(quoting Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975)).

                Information covered by this second group of exempt records need only be redacted
prior to being produced or inspected. It does not have to be segregated and maintained in the office
of the chief law enforcement officer. Accordingly, the officers’ photographs in the present case,
though not segregated, can nevertheless fall within the second group of exempt records if the officers
have been designated as working undercover and release of their photographs would have the


                                                 -16-
potential to threaten their safety or the safety of a member of their household or immediate family.
Not only is this interpretation consistent with the plain language of the statute, it also affords greater
protection to undercover police officers in accordance with the obvious purpose of the legislature
in enacting the undercover officer exemption.

                 The question then becomes whether the officers were designated as working
undercover. Unfortunately, the statute offers no guidance on how to designate an officer as working
undercover. Obviously, any officers who are actively working undercover have been so designated.
If an officer’s home address and telephone number, etc., have been segregated and maintained in the
office of the chief law enforcement officer, this would certainly go far in establishing that that
particular officer has been designated as working undercover.

                The trial testimony in the present case establishes that there are approximately 450
active CPD officers. Parker testified every single one of these officers is subject to being used in an
undercover capacity. Parker acknowledged, however, that it would not be practical to use every
officer in an undercover capacity and some of them already have too much public exposure to
perform undercover assignments. We also know that CPD’s web page contains photographs of
several officers. Any public exposure, including that from the web page, will impact, but not
necessarily determine, whether an officer is selected for undercover work. Carroll admitted he
would not be suited for undercover work due to the amount of public exposure he has received.
McPherson also testified that he has had too much public exposure to be used in an undercover
capacity, especially after being featured on the television show COPS. The five officers involved
in the physical altercation with Harris testified that: (1) they have not worked undercover yet; (2)
they were in the pool of officers immediately available for undercover work; (3) they desired to work
undercover at some point in the future; and (4) their level of public exposure to date had not
excluded them from being considered for undercover assignments. Deputy Chief Parks testified
CPD prefers using officers with at least three years of experience for undercover work, but
exceptions have been made. The testimony also establishes that the longer an officer is on the force,
the more likely that officer can be identified by the public which could result in exclusion from
undercover assignments.

                 Respondents argue that releasing the photographs of the six officers would preempt
their being used for undercover assignments in the future, a result inconsistent with Gilless. Taking
this argument to its logical end, every CPD officer with less than three years of experience but not
too much public exposure would be in the “pool” of officers immediately available for undercover
work. It goes without saying that all officers with three or more years of experience but not too
much public exposure would likewise be in the “pool.” Certainly, all officers who are actively
working undercover are in the “pool” as well. The end result is that the vast majority of CPD
officers are in the “pool” and the only officers “out of the water” are those few officers who have too




                                                  -17-
much public exposure.5 This result clearly troubled the Trial Court, as evidenced by the following
discussion in its Memorandum Opinion:

                  [The trial testimony] can be summed up as (almost) all officers are
                  theoretically in a pool from which officers can be taken for
                  undercover assignment.… The court does not read the undercover
                  officer exception to include any officer who could at any time
                  possibly work in an undercover or covert role.… [The Gilless] case
                  appears to be very fact specific.… The Respondents’ interpretation
                  and application of the exception would mean that no police officers’
                  photo would be required to be produced. The undercover exception
                  would become the rule that no police officers photo would be made
                  public unless the officer (or the City) agreed to such. Therefore, the
                  court denies the Respondents’ contentions that the disclosure of the
                  photographs is exempted by the undercover exception.

                  We share in the Trial Court’s concern. As a general rule we agree that an officer who
is not actively working undercover can nevertheless be designated as working undercover when that
officer is in a defined pool of officers immediately available for undercover assignments. This result
will help enable law enforcement agencies to maintain effective undercover operations by lowering
the potential that the identity of those officers in the pool will become too well known for them to
be effectively used in a covert capacity in the future. Deciding which officers are best suited for
active or future undercover assignments will involve a wide variety of considerations including, but
not limited to, an officer’s physical ability, skill level, and physical characteristics, as well as the type
of criminal activity being investigated. Without question, the decision as to which particular officers
are best suited for undercover work is a decision best left to members of a law enforcement agency,
as opposed to trial or appellate court judges. Once a good faith decision has been made, it should
be accorded a high level of deference. However, even with these considerations in mind this Court
cannot overlook the fact that the undercover officer exception is just that – an exception. It is not
the rule. We agree with the Trial Court’s conclusion that “Respondents’ interpretation and
application of the exception would mean that no police officers’ photo would be required to be
produced. The undercover exception would become the rule ….” While there certainly is no
mathematical formula for what percentage of officers on a police force can in good faith properly
be considered part of the pool of officers immediately available for undercover work, we
nevertheless conclude that when it is claimed that the vast majority of a police force has been
designated as working undercover, the exception has swallowed the rule and amounts to no
designation at all. Such a result clearly is contrary to the stated legislative intent that the Act is to

         5
           Our conclusion that a vast majority of the officers have been included in the undercover officer “pool” is
reinforced by the following comments in the brief of Respondents Penny, Smith, Smeltzer, Allen, and the Southern States
Police Benevolent Association discussing why no information on designated undercover officers was ever segregated
from the personnel files: “[I]t is impossible for the Chief to segregate literally all of the personnel files from the very
few that would be left. It would make more practical sense for him to designate their file room as an annex to his office
for segregation purposes.”

                                                          -18-
be construed “so as to give the fullest possible public access to public records.” Tenn. Code Ann.
§ 10-7-505(d). It is for this reason we conclude that the six officers in the present case have not been
“designated as working undercover” and the undercover officer exception found in Tenn. Code Ann.
§ 10-7-504(g)(1)(A) does not protect their photographs from disclosure.

        II.    The Federal Substantive and Procedural Due Process Issues.

               A.      The Kallstrom Decisions.

                Respondents argue that even if the photographs are not exempt from disclosure under
the Act, dissemination of their photographs would nevertheless violate their federal constitutional
right to privacy as recognized by the United States Court of Appeals for the Sixth Circuit in
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998)(“Kallstrom I”). In Kallstrom I, the
three plaintiffs were undercover police officers who were actively involved in a drug conspiracy
investigation of the Short North Posse, a violent gang. Forty-one gang members were being
prosecuted on drug conspiracy charges and the plaintiffs testified against eight of those gang
members. Kallstrom I, 136 F.3d at 1059. During the criminal trial, counsel for the gang members
requested and obtained from the City of Columbus the plaintiffs’ personnel and pre-employment
files. Defense counsel then proceeded to give these files to several of the defendants. The files
contained a significant amount of personal information on the officers, including their home
addresses and telephone numbers and this same information for immediate relatives. Also provided
was a copy of the officers’ drivers licenses which contained their photographs. Id. The City of
Columbus believed it was required to provide this information pursuant to the Ohio Public Records
Act. Id. at 1059-1060.

                The three officers brought suit under 42 U.S.C. §§ 1983 and 1988, claiming, among
other things, that dissemination of the information violated their right to privacy under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. The officers also
sought an injunction prohibiting the City of Columbus from releasing any such information in the
future. Id. at 1060. The United States District Court for the Southern District of Ohio (“District
Court”) dismissed all of the claims after concluding the Sixth Circuit has consistently refused to
recognize a constitutionally protected right to privacy that would shield an individual from a
government releasing personal information. Id.

               On appeal, the decision of the District Court was reversed. In so doing, the Sixth
Circuit began by noting that the Due Process Clause of the Fourteenth Amendment contains both
procedural and substantive components. The procedural component governs the procedures by
which a state may deprive an individual of life, liberty, or property. There are times, however, when
the Due Process Clause will bar certain governmental action regardless of the fairness of the
procedures used to implement that action. When this happens, the substantive component of the Due
Process Clause is implicated. Id. at 1060. The Sixth Circuit then observed that one aspect of the
substantive component that has developed over the years is the right to privacy, which has developed
along “two distinct lines. The first line of cases involves the individual’s interest in independent


                                                 -19-
decision making in important life-shaping matters, while the second line of cases recognizes the
individual’s interest in avoiding disclosure of highly personal matters.” Id. (citing Whalen v. Roe,
429 U.S. 589, 598-600 (1977)).

                The Sixth Circuit acknowledged that it has narrowly interpreted an individual’s right
to privacy in avoiding disclosure of personal matter and will only “balance an individual’s interest
in nondisclosure of informational privacy against the public’s interest in and need for the invasion
of privacy where the individual privacy interest is of constitutional dimension.” Id at 1061 (citing
J.P. v. DeSanti, 653 F.2d 1080, 1091 (6th Cir. 1981)). The issue then was whether the plaintiffs’
interests in nondisclosure of their files rose to a level of constitutional dimension. The Sixth Circuit
concluded that it did, stating:

                        The liberty interests preserved by the Due Process Clause of
                the Fifth Amendment, later incorporated into the Fourteenth
                Amendment, include "those privileges long recognized at common
                law as essential to the orderly pursuit of happiness by free men."
                Meyer v. Nebraska, 262 U.S. at 399, 43 S.Ct. at 626; see also
                Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413-14, 51
                L.Ed.2d 711 (1977). Among the historic liberties long cherished at
                common law was the right to be free from "unjustified intrusions on
                personal security." See Ingraham, 430 U.S. at 673, 97 S.Ct. at
                1413.… Individuals have "a clearly established right under the
                substantive component of the Due Process Clause to personal security
                and to bodily integrity," and this right is fundamental where "the
                magnitude of the liberty deprivation that [the] abuse inflicts upon the
                victim ... strips the very essence of personhood." Claiborne, 103 F.3d
                at 506-07. Finally, it goes without saying that an individual's "interest
                in preserving her life is one of constitutional dimension." Nishiyama
                v. Dickson County, 814 F.2d 277, 280 (6th Cir. 1987) (en banc).

                        In light of the Short North Posse's propensity for violence and
                intimidation, the district court found that the City's release of the
                plaintiffs-appellants' addresses, phone numbers, and driver's licenses
                to defense counsel in the [drug conspiracy criminal trial], … as well
                as their family members' names, addresses, and phone numbers,
                created a serious risk to the personal safety of the plaintiffs and those
                relatives named in the files.… We see no reason to doubt that where
                disclosure of this personal information may fall into the hands of
                persons likely to seek revenge upon the officers for their involvement
                in the … [criminal trial], the City created a very real threat to the
                officers' and their family members' personal security and bodily
                integrity, and possibly their lives. Accordingly, we hold that the
                City's disclosure of this private information about the officers to


                                                  -20-
               defense counsel in the … [criminal trial] rises to constitutional
               dimensions, thereby requiring us under [J.P. v. DeSanti, 653 F.2d
               1080 (6th Cir. 1981)] to balance the officers' interests against those of
               the City.

                                               ****

                        In finding that the City's release of private information
               concerning the officers to defense counsel in the … [criminal] case
               rises to constitutional dimensions by threatening the personal security
               and bodily integrity of the officers and their family members, we do
               not mean to imply that every governmental act which intrudes upon
               or threatens to intrude upon an individual's body invokes the
               Fourteenth Amendment. But where the release of private information
               places an individual at substantial risk of serious bodily harm,
               possibly even death, from a perceived likely threat, the "magnitude of
               the liberty deprivation ... strips the very essence of personhood."
               Claiborne, 103 F.3d at 506-07. Under these circumstances, the
               governmental act "reaches a level of significance sufficient to invoke
               strict scrutiny as an invasion of personhood." LAURENCE H.
               TRIBE, AMERICAN CONSTITUTIONAL LAW 1333 (2d ed.1988).

Kallstrom I, 136 F.3d at 1062-1064 (footnotes omitted).

                 The Sixth Circuit then concluded that when state action infringes upon a fundamental
right, it will be upheld under the substantive component of the Due Process Clause only where the
governmental action furthers a compelling state interest and is narrowly drawn to further that state
interest. Id. at 1064. The Court then discussed the compelling state interest furthered by Ohio
opening its records to the public, such as shedding light on the government’s performance, helping
the citizens to understand governmental operations, and helping to ensure accountability. Id. at
1064-1065. After discussing these state interests served by Ohio’s Public Records Act, the Court
assumed the interests served by allowing public access to agency records rose to the level of
compelling state interests. The Court went on to conclude, however, that releasing the personal
information of the officers’ and their family members to the criminal defense counsel did not
narrowly serve those interests. Id. at 1065. According to the Sixth Circuit:

                      While there may be situations in which the release of this type
               of personal information might further the public's understanding of
               the workings of its law enforcement agencies, the facts as presented
               here do not support such a conclusion. The City released the
               information at issue to defense counsel in a large drug conspiracy
               case, who is asserted to have passed the information onto his clients.
               We simply fail to see how placing this personal information into the


                                                 -21-
               hands of the [criminal] defendants in any way increases public
               understanding of the City's law enforcement agency where the
               [criminal] defendants and their attorney make no claim that they
               sought this personal information about the officers in order to shed
               light on the internal workings of the Columbus Police Department.
               We therefore cannot conclude that the disclosure narrowly serves the
               state's interest in ensuring accountable governance. Accordingly, we
               hold that the City's actions in automatically disclosing this
               information to any member of the public requesting it are not
               narrowly tailored to serve this important public interest.

Kallstrom I, 136 F.3d at 1065.

                The next issue addressed in Kallstrom I was whether a state could be held liable for
private acts of violence under 42 U.S.C. § 1983. Relying on the state-created-danger theory, the
Sixth Circuit concluded that a state can be held liable for the actions of a private individual, such as
a gang member, when the state’s action places the individual victim “specifically at risk, as
distinguished from a risk that affects the public at large.” Id. at 1066. In such a situation, the state
must have known or clearly should have known that its action would specifically endanger the
victim. Id. Applying this standard, the Court observed that anonymity was essential to the safety
of undercover officers investigating a gang-related drug conspiracy, especially when the gang has
demonstrated a propensity for violence. When the City of Columbus released the personal
information of the officers and their families, it either knew or should have known that it was placing
the personal safety of the officers and their families, as opposed to the public at large, in serious
jeopardy, and the City of Columbus was, therefore, liable for damages under 42 U.S.C. § 1983. Id.
at 1067.

                 The final issue addressed by the Court in Kallstrom I involved the plaintiffs’ request
for an injunction prohibiting the City of Columbus from disclosing personal information in the
future. In order to succeed with this request, the plaintiffs were required to show that a failure to
issue an injunction likely would result in irreparable harm. Id. at 1068. Even though the Sixth
Circuit acknowledged irreparable harm would be suffered to the officers or their families if a threat
to their security actually materialized, it nevertheless questioned whether any court could adequately
assess the likelihood that the officers or their families would suffer harm in the future should
personal information once again be released. Id. The criminal trial of the gang members had since
ended and without a clear development of the factual circumstances accompanying any future release
of personal information, any factual finding regarding the potential risk to the safety of the officers
or their families would be speculative. Id.

                Although the plaintiffs in Kallstrom I were unable to show denial of injunctive relief
likely would result in irreparable harm pursuant to the substantive component of the Due Process
Clause, they fared much better under the procedural component. More specifically, the Sixth Circuit
held that the procedural component of the Due Process Clause would entitle the officers to injunctive


                                                 -22-
relief prohibiting the City of Columbus from again releasing personal information prior to giving the
officers notice and an opportunity to be heard when disclosure of the requested information could
potentially threaten the safety of the officers and their family members. Id. at 1069-1070.

                 After the Sixth Circuit issued its opinion in Kallstrom I and the case was remanded
to the District Court, various newspapers and television stations requested information on the three
officers pursuant to Ohio’s Open Records Act. These news organizations sought, inter alia, the
officers’ home addresses, summaries of investigations on their backgrounds, memos and notices
related to disciplinary charges, and answers to personal history questions. The requests excluded
bank account information, social security numbers, responses to polygraph examinations, and
medical or psychological records. Kallstrom v. City of Columbus, 165 F. Supp.2d 686, 688 , 694-95
(S.D. Ohio 2001)(“Kallstrom II”). The City of Columbus refused to provide this information relying
on the opinion in Kallstrom I, and the news organizations thereafter intervened in the lawsuit.

                 A most unexpected development then occurred. The District Court was informed that
both it and the Sixth Circuit had been provided inaccurate information regarding what actually had
been provided to defense counsel in the gang members’ criminal trial. The City of Columbus had
redacted most if not all of the plaintiffs’ personal information from their files prior to their being
produced. The files as produced did not contain the address and phone numbers of the officers or
their relatives and the drivers licenses had been rendered illegible. Because of this the District Court
determined the information that actually had been provided was outdated or redacted and did not
result in any substantial risk to the officers or their families. Kallstrom II, 165 F. Supp.2d 686, 700-
702 (S.D. Ohio 2001). In reaching this conclusion, the District Court observed that it had been
almost six years since the criminal defense attorney reviewed the information and there was no
evidence that the Short North Posse or anyone connected with that gang had done anything to place
the plaintiffs in harm. The officers did testify to mysterious phone calls they received which at least
one officer speculated could be attributed to the release of his redacted personnel file. Id. at 702.
In short, the plaintiffs offered nothing other than conclusory statements to support their claim that
the release of the information put them at substantial risk of immediate bodily harm. Accordingly,
the District Court concluded the plaintiffs’ substantive due process rights had not been violated. Id.
at 702-703.

                Finally, in accordance with the Sixth Circuit’s instructions, the District Court entered
a limited permanent injunction against the City of Columbus requiring it to provide plaintiffs with
meaningful written notice prior to releasing any information which could potentially threaten the
personal security of the plaintiffs or their families. “Specifically, the City must notify the Officers
of a request for their addresses, phone numbers, and copies of their drivers’ licenses, or the names,
addresses, and phone numbers of their family members, prior to releasing this information so that
the Officers might have the opportunity to invoke their constitutionally protected rights to privacy
and personal security.” Id. at 703-704.




                                                 -23-
                B.      Whether Production of the Photographs Will Violate the
                        Officers’ Substantive Due Process Rights.

                Relying on Kallstrom I, the officers in the present case contend the Trial Court erred
in ordering production of their photographs because broadcasting the photographs on the news would
place them and their families at substantial risk of serious bodily harm. The Trial Court correctly
observed that this is a very high standard to prove. The precise issue we must decide is whether the
evidence preponderates against the Trial Court’s factual findings and resulting conclusion that the
officers did not meet this high standard.

                It is undisputed that the officers involved in the Harris incident are patrol officers who
wear their police uniforms and name tags while on duty. They interact with the citizens on their beat
frequently, which could and has included members of the Crips gang. CPD is community oriented
and actively encourages the officers to interact with the citizens. A couple of the officers have
received media coverage for reasons unrelated to the Harris incident, including Allen’s brief
appearance on COPS. The fact that they are “police officers” is not secret. Their names and
involvement in the Harris incident were made public when the investigative report into Harris’ death
was released. It is the addition of their photographs to this already existing level of public
knowledge that they seek to prevent. The trial took place seven months after Harris’ death and two
months after the officers’ names were made public. Fortunately, at the time of trial none of the
officers were able to identify any specific threat that had been made to them directly resulting from
their involvement in the Harris incident.

                The underlying facts in Kallstrom I which led the Sixth Circuit to the conclusion that
the substantive due process rights of the officers in that case had been violated are quite compelling.
The Kallstrom I officers were actively working undercover and testifying at the criminal trial of
several gang members. Here, the officers neither are actively working undercover nor are they in
the midst of a criminal trial of a gang member. We cannot overemphasize the importance of law
enforcement personnel to maintaining an orderly society. The fact that their jobs put them in the face
of danger on a daily basis cannot be disputed. Nevertheless, after carefully reviewing the facts and
the entire record in this case, we cannot conclude the evidence preponderates against the Trial
Court’s factual findings and resulting conclusion that the officers failed to prove that releasing their
photographs would place them or their families at a substantial risk of serious harm. The judgment
of the Trial Court on this issue is affirmed.

                C.      Whether The Public Records Act Violates the Officers’
                        Procedural Due Process Rights.

                As previously discussed, in Kallstrom I the Sixth Circuit concluded the procedural
component of the Due Process Clause would require the undercover officers to be given notice and
an opportunity to be heard prior to releasing any personal information which could potentially
threaten their safety or that of their family members. Kallstrom I, 136 F.3d at 1069-1070. The
rationale in Kallstrom I is not limited to undercover police officers. For example, in Deja Vu of


                                                  -24-
Nashville, Inc. v. The Metropolitan Government of Nashville and Davidson County, 274 F.3d 377,
394-95 (6th Cir. 2001), cert den. 535 U.S. 1073 (2002) the Sixth Circuit applied the reasoning in
Kallstrom I when concluding certain personal information regarding exotic dancers and applicants
for sexually oriented business licenses was exempt from public disclosure under the Public Records
Act when releasing this information would create a substantial risk of harm to the dancers or
applicants.

                Respondents argue Tenn. Code Ann. § 10-7-503(c) is constitutionally inadequate
because it only requires law enforcement personnel to be notified that their personnel files have been
inspected within three days after the inspection occurs. In other words, the statute does not provide
them prior notice and an opportunity to be heard before their records are inspected.6 Respondents’
argument is supported by Tenn. Op. Att’y Gen. No. 98-230, 1998 WL 931489 (1998) where the
Attorney General thoroughly reviewed the facts and holding in Kallstrom I before concluding as
follows:

                  Tenn. Code Ann. § 10-7-503(c) requires custodians of such personnel
                  information to allow the public to inspect it, but to obtain information
                  regarding the person making the inspection and to notify the officer
                  whose records have been inspected within three days. Under
                  Kallstrom, however, the custodian of such records is required to give
                  the officer prior notice and an opportunity to be heard if, based on the
                  specific circumstances of the request, the custodian knows or should
                  know that release of the information could potentially threaten the
                  security of the officer or of his or her family members by substantially
                  increasing the likelihood that a private actor will harm them. It
                  therefore appears that Tenn. Code Ann. § 10-7-503(c) does not
                  comply with federal due process requirements where the custodian of
                  information knows or should know that release of information could
                  potentially threaten the personal security of a law enforcement officer
                  or his or her family by substantially increasing the likelihood that a
                  private actor will harm them. Under Kallstrom, in those
                  circumstances, the officer must receive prior notice and an
                  opportunity to be heard.

Tenn. Op. Att’y Gen. No. 98-230, 1998 WL 931489, at * 5.




         6
           The undercover officer exception contains procedural safeguards when requested information has the potential,
if released, to threaten the safety of the officer or the officer’s family or household members. We have already
concluded, however, that this statutory provision applies only to officers who have been “designated as working
unde rcover.” See Tenn. Code Ann. §§ 10-7 -504 (g)(1)(A) and (g)(1)(B ). Because we held this exc eption does not apply
to the officers in the present case, it necessa rily follows that the procedural safeguards contained within this exception
likewise d o not apply.

                                                          -25-
                However, under Tennessee law, our courts will not decide constitutional issues unless
resolution is absolutely necessary for determination of the case and the rights of the parties. If an
issue can be resolved on non-constitutional grounds, “courts should avoid deciding constitutional
issues.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Based on this guiding principle and
the factual and procedural history of this case, we must reject Respondents’ procedural due process
argument regardless of how compelling that argument may seem. The officers here certainly have
been accorded their constitutional procedural due process rights inasmuch as they have had a full
trial on the merits and, at least so far, one level of appellate review, all without the photographs
having been produced. Because the officers have had adequate procedural due process, a decision
whether the Public Records Act is constitutional on procedural due process grounds is not absolutely
necessary for a determination of this case and the rights of these parties. As Respondents have been
accorded their constitutional procedural due process rights in this case, we affirm the Trial Court’s
handling and ultimate resolution of this issue.

       III.    Whether Petitioners are Entitled to an Award of Attorney Fees.

                The final issue is whether the Trial Court erred when it refused to award attorney fees
to Petitioners. Tenn. Code Ann. § 10-7-505(g) authorizes an award of attorney fees if the
governmental entity knew the records were public and willfully refused to disclose them. The statute
also provides an award of attorney fees is discretionary with the trial court. In Arnold v. City of
Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 1999), this Court stated every refusal to disclose a
public record was not wrongful because the statute expressed a “knowing and willful” standard,
which was synonymous with bad faith. Id. at 789 (citations omitted). The Court in Arnold went on
to add that bad faith was more than bad judgment or negligence and implied the conscious doing of
a wrong because of a dishonest purpose. Id. In light of the difficult and significant legal issues
presented in this case, we cannot conclude the Trial Court abused its discretion when it refused to
award attorney fees to the successful Petitioners, and we affirm the Trial Court’s judgment on this
issue.

       IV.     Conclusion.

                This case raises many important issues. As noted by the Trial Court, “the right to
privacy under Article 1, § 8 of the Tennessee Constitution, and the United States’ Constitution are
pitted against Article 1, § 19 of the Tennessee Constitution and the First Amendment to the United
States’ Constitution relating to freedom of speech and press as well as the mandates of the Tennessee
Legislature” with the Public Records Act. The numerous parties to this litigation have furnished this
Court with well written briefs and vigorously defended their respective positions. The result we
reach today is in no way intended to discount the significant importance of our law enforcement
personnel who place themselves in danger on a daily basis to make this nation a safer place to live.

             As a final note, we point out that in February of this year, two state legislators from
Chattanooga/Hamilton County proposed legislation which would amend Tenn. Code Ann. § 10-7-
503(c) and make certain personal information of law enforcement officers, firefighters, and


                                                 -26-
emergency medical technicians confidential unless the employee authorized its release. The
proposed amendment defines personal information to include home addresses, home telephone
numbers, social security numbers, names of family members, photographs, and “any other
information of a personal nature unrelated to an employee’s performance … which, if released, could
pose a threat to the safety of an employee or an employee’s immediate family or household
members.” The proposed legislation is SB1049/ HB1785 and is currently pending.

                The judgment of the Trial Court is affirmed and this cause is remanded to the Trial
Court for further proceedings as necessary, if any, consistent with this Opinion, and for collection
of the costs below. The costs on appeal are assessed against the City of Chattanooga.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                               -27-
