                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 4, 2009 Session

 THOMAS M. GAUTREAUX v. CHATTANOOGA-HAMILTON COUNTY
                 HOSPITAL AUTHORITY

                Appeal from the Chancery Court for Hamilton County
                   No. 08-0946    Howell N. Peoples, Chancellor


               No. E2009-00367-COA-R3-CV - FILED JUNE 29, 2010


Thomas M. Gautreaux (“Gautreaux”) filed a petition pursuant to the Tennessee Public
Records Act for access to a settlement agreement involving Chattanooga-Hamilton County
Hospital Authority (“the Hospital” or “Erlanger”) in a previous lawsuit. The Hospital denied
the request, claiming that the document was privileged under the Tennessee Peer Review
Law. Gautreaux then filed a petition for a show cause hearing. After the hearing, the trial
court determined that the settlement agreement was exempt from disclosure under the Peer
Review Law. Gautreaux appeals. We affirm.

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

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

John P. Konvalinka and Matthew D. Brownfield, Chattanooga, Tennessee, for the appellant,
Thomas M. Gautreaux.

Fred H. Moore and Joseph P. White, Chattanooga, Tennessee, for the appellee, Chattanooga-
Hamilton County Hospital Authority.

                                        OPINION

                                   I. BACKGROUND

       Gautreaux tendered a written request upon the Hospital pursuant to the Tennessee
Public Records Act, Tenn. Code Ann. § 10-7-101 et seq., for copies of a settlement
agreement (“Settlement Agreement”) entered into by the Hospital. The Settlement
Agreement facilitated the resolution of a lawsuit that had been filed by Calvin Bell, M.D.
(“Dr. Bell”) against the Hospital in the United States District Court for the Eastern District
of Tennessee.1

       The Hospital denied Gautreaux’s request because the Settlement Agreement
constituted a resolution of a peer review process between the Hospital and Dr. Bell. In the
Hospital’s view, the Settlement Agreement was exempt from public disclosure by the
Tennessee Peer Review Law.

       Subsequently, Mr. Gautreaux filed a petition pursuant to Tenn. Code Ann. § 10-7-505
to compel the Hospital to act. A show cause hearing was conducted on January 8, 2009. At
the hearing, the trial court heard testimony from Nita Shumaker, M.D. (“Dr. Shumaker”) and
Pat Eller, the Hospital’s Medical Staff Coordinator.

      Dr. Shumaker was the Hospital’s Chief of Staff and serving on the Hospital’s Medical
Executive Committee (“MEC”) at the time the Settlement Agreement was signed. Dr.
Shumaker testified that she participated in the mediation of Dr. Bell’s lawsuit on behalf of
the Hospital’s medical staff. Jim Brexler, the Hospital’s CEO, also attended the mediation.
On direct examination, Dr. Shumaker stated that the mediation was conducted for the
purpose of resolving an ongoing “peer review proceeding” pertaining to Dr. Bell. Dr.
Shumaker testified that at the end of the mediation, the parties entered into the Settlement
Agreement. However, on cross examination, Dr. Shumaker admitted that she had no
personal knowledge of where the original Settlement Agreement was located, and it was her
understanding that the Settlement Agreement was placed in Dr. Bell’s peer review file.

        After making detailed findings of fact, the trial court issued a Memorandum Opinion
and Order (“the Order”) denying Gautreaux’s request for access to the Settlement
Agreement. The trial court held that the Settlement Agreement constituted a privileged
document under the Tennessee Peer Review Law, and therefore, the Settlement Agreement
was exempt from disclosure pursuant to the Tennessee Public Records Act. Gautreaux then
filed this appeal.

                                                II. ISSUES

        Gautreaux raises the following issues, which we restate:



        1
         In the original Complaint, Dr. Bell alleged violations of his civil rights pursuant to 42 U.S.C. § 1981
and 42 U.S.C. § 1988. Dr. Bell also alleged that the Hospital engaged in discriminatory employment
practices.

                                                      -2-
       1. Whether the trial court erred in determining that the Settlement Agreement was
       exempt from disclosure under the Tennessee Public Records Act.

       2. Whether the trial court erred in refusing to compel production of redacted portions
       of the Settlement Agreement.

       3. Whether the trial court erred in denying Gautreaux’s request for attorney’s fees.

       4. Whether the trial court erred in placing the burden of proof on Gautreaux.


                           III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness, and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). With respect to legal issues, this court’s review is conducted under
a pure de novo standard of review. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). Mixed questions of law and fact are reviewed de novo with
no presumption of correctness, but appellate courts have “great latitude to determine whether
findings as to mixed questions of fact and law made by the trial court are sustained by
probative evidence on appeal.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

        This case requires an interpretation of the Tennessee Public Records Act and the
Tennessee Peer Review Law. We must “ascertain and give effect to the legislative intent
without restricting or expanding a statute’s coverage beyond its intended scope.” Owens v.
State, 908 S.W.2d 923, 926 (Tenn. 1995). Issues involving construction of a statute and its
application to facts involve questions of law. Memphis Publ’g Co. v. Cherokee Children &
Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002). Therefore, the trial court’s resolution
of these issues is not entitled to Tenn. R. App. P. 13(d)’s presumption of correctness on
appeal. This court will review these issues de novo and reach our own independent
conclusions regarding them. King v. Pope, 91 S.W.3d 314, 318 (Tenn. 2002).

                                  IV. DISCUSSION

                                           A.

       Tennessee courts have long recognized the public’s right to examine governmental
records. See generally State ex rel. Wellford v. Williams, 75 S.W. 948, 958 (Tenn. 1903).
The General Assembly enacted the Public Records Act and it governs “the right of access to”
governmental records. See Cole v. Campbell, 968 S.W.2d 274, 275 (Tenn. 1998); Ballard

                                             -3-
v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). The Public Records Act, at Tenn. Code Ann.
§ 10-7-503(2)(A) states, in pertinent part, as follows:

       All state, county and municipal records shall, at all times, during business
       hours, which for public hospitals shall be during the business hours of their
       administrative offices, be open for personal inspection by any citizen of this
       state, and those in charge of the records shall not refuse such right of
       inspection to any citizen, unless otherwise provided by state law.

Tenn. Code Ann. § 10-7-503(2)(A) (Supp. 2009) (emphasis added). This court broadly
construes the Public Records Act in order to “give the fullest possible public access to public
records” as directed by the General Assembly. Tenn. Code Ann. § 10-7-505 (d); see also
Brennan v. Giles County Bd. of Educ., No. M2004-00998-COA-R3-CV, 2005 WL 1996625,
at *2 (Tenn. Ct. App. W.S., Aug. 18, 2005) (internal citation omitted). There is a clear
legislative policy favoring disclosure; that policy guides this court’s determination of whether
the sought records are subject to public disclosure. Fodness v. Newport & Cocke County
Econ. Dev. Comm’n, Inc., No. E2004-01491-COA-R3-CV, 2005 WL 607964, at *5 (Tenn.
Ct. App. E.S., Mar. 16, 2005). Therefore, unless it is clear that the disclosure of a record or
class of records is exempt from disclosure, we must require disclosure even in the face of
“serious countervailing considerations.” Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct.
App. 2004) (citing Memphis v. Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn.
1994)).

      In Swift, this court explained that although disclosure of public records is favored, the
General Assembly provided that some public records are exempt from disclosure. 159
S.W.3d at 571. This court observed:

       Notwithstanding the breadth of the public records statutes’ disclosure
       requirements, the General Assembly recognized from the outset that
       circumstances could arise where the reasons not to disclose a particular record
       or class of records would outweigh the policy favoring public disclosure.
       Accordingly, the General Assembly provided two types of exceptions from
       disclosure under the public records statutes. First, the General Assembly
       included specific exceptions from disclosure in the public records statutes
       themselves. Second, it acknowledged and validated both explicit and implicit
       exceptions from disclosure found elsewhere in state law.

Id. The last clause of Tenn. Code Ann. § 10-7-503(2)(A), “unless otherwise provided by
law” provides a catchall exception to the Public Records Act. This provision exempts
documents that are made privileged or protected from disclosure by Tennessee laws other

                                              -4-
than the Act itself. The Tennessean v. City of Lebanon, No. M2002-02078-COA-R3-CV,
2004 WL 290705, at *4 (Tenn. Ct. App. M.S., Feb. 13, 2004). Therefore, in this appeal, we
must decide whether the Settlement Agreement falls within an exception to disclosure.

        The exception at issue in this case is the Tennessee Peer Review Law, Tenn. Code
Ann. § 63-6-219. In 1967, the General Assembly enacted the Peer Review Law and created
a statutory privilege covering documents related to the professional review of physicians.
See Tenn. Code Ann. § 63-6-219(e) (Supp. 2009). In enacting the statute, the General
Assembly recognized that “confidentiality is essential both to effective functioning of these
peer review committees and to continued improvement in the care and treatment of patients.”
Tenn. Code Ann. § 63-6-219(b)(1) (Supp. 2009). Specifically, the Peer Review Law
provides, in relevant part, as follows:

       (c) As used in this section, “medical review committee” or “peer review committee”
       means any committee of a state or local professional association or society, including
       impaired physician peer review committees, programs, malpractice support groups
       and their staff personnel, or a committee of any licensed health care institution, or the
       medical staff thereof, or a medical group practice, or any committee of a medical care
       foundation or health maintenance organization, preferred provider organization,
       individual practice association or similar entity, the function of which, or one (1) of
       the functions of which,. . .to evaluate or review the diagnosis or treatment or the
       performance or rendition of medical or hospital services that are performed under
       public medical programs of either state or federal design.

                                               ***

       (e) All information, interviews, incident or other reports, statements, memoranda or
       other data furnished to any committee as defined in this section, and any findings,
       conclusions or recommendations resulting from the proceedings of such committee
       are declared to be privileged. All such information, in any form whatsoever, so
       furnished to, or generated by, a medical peer review committee, shall be privileged.
       The records and proceedings of any such committees are confidential and shall be
       used by such committee, and the members thereof only in the exercise of the proper
       functions of the committee, and shall not be public records nor be available for court
       subpoena or for discovery proceedings. . . . Nothing contained in this subsection (e)
       applies to records made in the regular course of business by a hospital or other
       provider of health care and information, documents or records otherwise available
       from original sources are not to be construed as immune from discovery or use in any
       civil proceedings merely because they were presented during proceedings of such
       committee.

                                              -5-
Tenn. Code Ann. § 63-6-219(c) and (e) (Supp. 2009).

      Gautreaux contends that because the Settlement Agreement was entered into by the
Hospital, a public entity, it is subject to the disclosure requirements of the Public Records
Act.

       The trial court found that the Peer Review Law precluded disclosure of the Settlement
Agreement because it “is part of the peer review process. It follows that it is confidential and
privileged pursuant to the Tennessee Peer Review Law of 1967. . . .” Gautreaux argues that
the Hospital failed to present sufficient and credible evidence to support the trial court’s
finding. He claims that the inconsistencies in witness testimony illustrate that the Settlement
Agreement did not resolve an ongoing peer review process, but it only resolved Dr. Bell’s
lawsuit. In Gautreaux’s view, the Settlement Agreement amounts to a record “made in the
regular course of business,” an exception contained in subsection (e) of Tenn. Code Ann. §
63-6-219, and the Hospital should produce it under the Public Records Act. We disagree.

       At the hearing, Patricia Eller, Medical Staff Coordinator at the Hospital, testified that
she maintains the files concerning peer review proceedings and her office is responsible for
credentialing physicians at the Hospital. Ms. Eller’s testimony revealed that the pleadings
and other documents related to Dr. Bell’s lawsuit were provided to her office to become part
of Dr. Bell’s peer review file. Those materials included Dr. Bell’s Amended Complaint, the
Temporary Restraining Order (“TRO”), and the Stipulation of Dismissal.

        Dr. Shumaker, a pediatrician who served on the MEC and as the Chief of Staff at the
Hospital in 2007, also testified at the hearing. One of the main responsibilities of the MEC
is peer review activity. Dr. Shumaker testified that she “participated in a mediation process
after the TRO [temporary restraining order] was filed” for Dr. Bell’s lawsuit. One of the
hearing exhibits included the TRO that was granted by the federal court in Dr. Bell’s
litigation. The TRO enjoined the Hospital from suspending and/or revoking Dr. Bell’s
hospital privileges. Dr. Shumaker’s testimony revealed that the purpose of the mediation was
“[t]o resolve the peer review proceedings.” At the conclusion of the mediation, Dr. Bell and
the Hospital entered into the Settlement Agreement. Dr. Shumaker testified that the terms
of the Settlement Agreement were presented to the MEC and the Joint Conference
Accreditation Committee (“Joint Conference”).

       Gautreuax attacks Dr. Shumaker’s testimony, claiming that it is self-serving. To
undermine the Hospital’s claims that the Settlement Agreement was part of Dr. Bell’s peer
review process, Gautreaux points out that a copy of the Settlement Agreement was never
presented to the Hospital’s Board of Trustees, the Joint Conference, and the MEC. He cites

                                              -6-
Int’l Yarn Corp. v. Casson, 541 S.W.2d 150, 152 (Tenn. 1976) as authority that Dr.
Shumaker’s testimony does not support any of the trial court’s factual findings.

       Our review of the record indicates otherwise. We find Dr. Shumaker’s testimony is
credible and supported by the exhibits presented at the hearing. Dr. Bell’s lawsuit was
related to the suspension and/or revocation of his hospital privileges. In Dr. Bell’s Amended
Complaint, one of the exhibits, he alleged:

       Defendants’ [the Hospital] wrongful and unlawful conduct and imminent actions of
       suspending and/or revoking Plaintiff’s [Dr. Bell] hospital staff privileges will cause
       great, immediate, and irreparable injury, harm, loss and/or damage to Plaintiff. . . .

(emphasis added). Further, the TRO prevented the Hospital from taking any adverse action
against Dr. Bell regarding his hospital privileges. All of the relevant documents to Dr. Bell’s
lawsuit were exhibits at the hearing and those documents reveal Dr. Bell’s issues with the
Hospital’s peer review of his performance. Dr. Shumaker’s testimony that she participated
in the mediation of Dr. Bell’s lawsuit and served on the MEC during that time is unrefuted.
Whether a copy of the Settlement Agreement was presented to the Joint Conference or the
Board of Trustees does not undercut the fact that Dr. Bell’s lawsuit concerned the peer
review process. The witness testimony coupled with the hearing exhibits supports the
conclusion that Dr. Bell’s lawsuit centered on the peer review process.

       Therefore, we find that Dr. Bell initiated his lawsuit because of issues with the peer
review process at the Hospital. After mediation with the Hospital, Dr. Bell’s issues were
addressed and the resolution of the peer review process culminated in the Settlement
Agreement. Unlike a document prepared in the course of the Hospital’s regular business, the
Settlement Agreement stemmed from peer review action taken by the MEC. The Peer
Review Law protects “[a]ll such information, in any form whatsoever, so furnished to, or
generated by, a medical peer review committee. . . .” See Tenn. Code Ann. § 63-6-219(e).
Gautreaux’s argument ignores that Dr. Bell’s lawsuit was inextricably linked to the peer
review process; the peer review process prompted Dr. Bell to initiate his lawsuit. To accept
Gautreaux’s argument, we would have to overlook the underlying cause – the peer review
of Dr. Bell – that led to the eventual lawsuit and Settlement Agreement. Accordingly, we
hold that the trial court correctly determined that the Settlement Agreement is exempt from
public disclosure under the privilege created by the Peer Review Law.

                                            B.

      Gautreaux next argues that redacted portions of the Settlement Agreement should have
been produced. He claims that the trial court erred by not reviewing the Settlement

                                              -7-
Agreement in camera and compelling the Hospital to produce a redacted version. Because
of the public policy favoring disclosure of public records, he contends that Tennessee courts
have consistently ruled that records that are otherwise confidential pursuant to an exception
of the Act can be redacted to preserve confidentiality while simultaneously serving the
purpose of the Act. In support of this assertion, Gautreaux cites Schneider v. City of Jackson,
226 S.W.3d 332 (Tenn. 2007).

       In Schneider, newspaper reporters sought police officers’ field interview cards and
the financial records related to a criminal investigation pursuant to the Public Records Act.
226 S.W.3d at 334-35. The city denied repeated requests for the records claiming that they
were privileged under the law enforcement privilege. Id. at 335. The trial court entered an
injunction requiring the city to respond to all public record requests by the reporters. Id. at
338. After surveying relevant case law of other jurisdictions, this court adopted the law
enforcement privilege and held that it prevented disclosure of the records within that
privilege. Id. at 339. The Tennessee Supreme Court reversed and held:

       Nonetheless, recognizing that harmful and irreversible consequences could
       potentially result from disclosing files that are involved in a pending criminal
       investigation, we conclude that a remand to the trial court is appropriate to
       allow the City an opportunity to review the field interview cards and to submit
       to the trial court for in camera review those cards or portions of cards which
       the City maintains are involved in an ongoing criminal investigation and
       exempt from disclosure.

Id. at 345-46. Gautreaux asserts that a remand to the trial court for an in camera review is
an appropriate remedy in the instant case.

         To counter, the Hospital contends that an in camera review is not necessary because
it is evident from Dr. Bell’s Complaint that the action arose out of and related to an ongoing
professional review activity. All of Dr. Bell’s claims stemmed from the “professional review
action” recommended by the MEC. In addition, Dr. Shumaker testified that the purpose of
the mediation was to resolve the peer review proceedings and to settle the “professional
review action.”

       We agree with the Hospital. First, the facts of this case are distinguishable from
Schneider. In Schneider, the city refused to promptly respond to the repeated requests for
the sought records and “failed to demonstrate which, if any, of the 369 field interview cards
are involved in an ongoing criminal investigation and therefore exempt under Tennessee
Rule of Criminal Procedure 16(a)(2).” Id. at 345. In the case at bar, the Hospital has
demonstrated through witness testimony and the pleadings associated with Dr. Bell’s lawsuit

                                              -8-
that the Settlement Agreement was a document created as part of the peer review process
thereby making it exempt pursuant to state law.

        Second, the exemption at issue, the Peer Review Law provides that “all information”
given for the purpose of peer review is “confidential” and “shall not be public records.” See
Tenn. Code Ann. § 63-6-219(e). The Peer Review Law does not limit confidentiality only
to certain portions of documents; the statute protects all documents.

        Third, we find the Tennessee Supreme Court’s decision in Stratienko v. Chattanooga-
Hamilton County Hosp. Auth., 226 S.W.3d 280 (Tenn. 2007) to be instructive and analogous
to this case. The Stratienko court specifically addressed disclosure of documents under the
Peer Review Law. Id. at 283. In that case, a doctor, whose hospital privileges were
suspended after an altercation with another doctor, sought the credentials of the other doctor
with which whom he had the altercation. Id. at 282. The hospital denied the request
pursuant to the Peer Review Law. Id. The trial court denied the doctor’s motion to compel
discovery, but it granted permission for an interlocutory appeal. Id. This court remanded the
case to the trial court to determine if any of the documents were generated in the regular
course of the hospital’s business and if any of the information sought by the doctor was
available from original sources. Id. at 282-83. Affirming in part and reversing in part, the
Tennessee Supreme Court held that “‘information, documents, or records otherwise available
from original sources’ are subject to discovery pursuant to [Tenn. Code Ann. § 63-6-219(e)],
but only to the extent that they are not requested from the peer review committee and are not
otherwise privileged.” Id. at 287. By so holding, the Court recognized the importance of
affording confidentiality to documents and information furnished to or generated by a
medical peer review committee. The Court further noted the public policy reasons for its
holding in Stratienko and observed that shielding information related to a peer review action
encourages candor in peer review proceedings, which in turn promotes the purpose of the
Peer Review Law. Id. at 286; see also Roy v. City of Harriman, 279 S.W.3d 296, 302 (Tenn.
Ct. App. 2008) (perm. to appeal denied) (noting the policy underlying the Peer Review Law
encourages confidentiality in the peer review process.).2


       2
        In Roy, this court concluded that privileged documents under the Peer Review Law are “both
undiscoverable and inadmissible. 279 S.W.3d at 302. This court explained:

        If an otherwise privileged document could be used as evidence in any civil action, so long as it was
       obtained through some means other than the discovery process, the protection afforded by the statute
       would be severely weakened, and individuals providing information to peer review committees
       would have far less reason to trust that their statements would remain confidential. This result would
       be directly at odds with the statutory imperative that “confidentiality is essential both to effective
       functioning of these peer review committees and to continued improvement in the care and treatment
                                                                                               (continued...)

                                                    -9-
       In light of the critical policy goals of the Peer Review Law, we conclude that the
Hospital demonstrated that the Settlement Agreement was created to resolve a peer review
action and therefore exempt by the Peer Review Law. Because the Hospital made such a
demonstration, it was not necessary for the trial court to conduct an in camera review. Our
holding recognizes the significance in protecting information related to medical peer review
and is consistent with the stated public policy contained within the Peer Review Law. See
Tenn. Code Ann. § 63-6-219(b)(1).3

                                                    C.

        The Public Records Act provides that if a public entity denies a request for a known
public record, then the party seeking access may be awarded all reasonable costs and
attorney’s fees. See Tenn. Code Ann. § 10-7-505(g) (Supp. 2009).4 Gautreaux claims that
he is entitled to the fees and expenses that he incurred as a result of the Hospital’s knowing
refusal to produce the Settlement Agreement. The statute requires an element of “willfully”
when determining whether the recovery of attorney’s fees is appropriate. See id.; see also
Schneider, 226 S.W.3d at 346. “Willfully” is a term synonymous to a bad faith requirement.
Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999). The Public
Records Act does not permit the recovery of attorney’s fees when the nondisclosing public
entity withheld the records due to a good faith belief that the records were exempt from
disclosure. Id.

        In the instant case, the Hospital denied Gautreaux’s request based on a good faith
belief that the Peer Review Law exempted the Settlement Agreement from public disclosure.


        2
         (...continued)
        of patients.”
Id.
        3
         “In conjunction with the applicable policies of the Health Care Quality Improvement Act of 1986,
42 U.S.C. §§ 11101-11152, it is the stated policy of Tennessee to encourage committees made up of
Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their
peers’ professional conduct, competence, and ability to practice medicine. Tennessee further recognizes that
confidentiality is essential both to effective functioning of these peer review committees and to continued
improvement in the care and treatment of patients.” Tenn. Code Ann. § 63-6-219(b)(1).
        4
         “If the court finds that the governmental entity, or agent thereof, refusing to disclose a record, knew
that such record was public and willfully refused to disclose it, such court may, in its discretion, assess all
reasonable costs involved in obtaining the record, including reasonable attorneys’ fees, against the
nondisclosing governmental entity. In determining whether the action was willful, the court may consider
any guidance provided to the records custodian by the office of open records counsel as created in title 8,
chapter 4.” Tenn. Code Ann. § 10-7-505(g).

                                                     -10-
In fact, we have so concluded that the Settlement Agreement is privileged. Thus, it does not
appear that the Hospital acted in bad faith in denying the request. As such, Gautreaux is not
entitled to recovery of attorney’s fees, and the trial court properly denied Gautreaux’s
request. We affirm.

        Lastly, we address Gautreaux’s contention that the trial court improperly shifted the
burden of proof at the hearing. Under the Public Records Act, “[t]he burden of proof for
justification of nondisclosure of records sought shall be upon the official and/or designee of
the official of those records and the justification for the nondisclosure must be shown by a
preponderance of the evidence.” Tenn. Code Ann. § 10-7-505(c) (Supp. 2009). Tennessee
citizens denied access to governmental records may file a petition in court and obtain judicial
review of the denial to access. See § 10-7-505(a). At the hearing on the petition, the public
entity “bears the burden of proof and must justify nondisclosure of the record by a
preponderance of the evidence.” Schneider, 226 S.W.3d at 340 (citing Tenn. Code Ann. §
10-7-505(c)).

       The record does indicate that the trial court remarked that “they [the Hospital] filed
a written response, so I think the burden shifts back [to Gautreaux].” In so doing, the trial
court erred. The Hospital, as the public entity, had the burden of proof to justify
nondisclosure at the hearing . Nevertheless, we find that this was harmless error. Our
harmless error rule considers whether the error “more probably than not affected the
judgment.” Tenn. R. App. P. 36(b).5

        At the hearing, through the introduction of the exhibits and the testimony of Ms. Eller
and Dr. Shumaker, the Hospital demonstrated, by a preponderance of the evidence, that the
Settlement Agreement was exempt from disclosure by the Peer Review Law. The trial
court’s Order evaluates the evidence in light of the Hospital’s contention that the Peer
Review Law exempts the Settlement Agreement. In the Order, the trial court reviewed the
witness testimony and outlined the reasons for the exemption under the Peer Review Law.
In spite of the trial court’s remarks about the burden of proof, he correctly found that the
Hospital justified nondisclosure of the Settlement Agreement. See Sanders v. Anderson, 746
S.W.2d 185, 189 (Tenn. 1987) (holding that “[a]lthough the reasoning of the Chancellor
regarding the allocation of the burden of proof was not correct, any error was harmless….”).


        5
          (b) Effect of Error. A final judgment from which relief is available and otherwise appropriate shall
not be set aside unless, considering the whole record, error involving a substantial right more probably than
not affected the judgment or would result in prejudice to the judicial process. When necessary to do
substantial justice, an appellate court may consider an error that has affected the substantial rights of a party
at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.
Tenn. R. App. P. 36(b).

                                                      -11-
We therefore conclude that the trial court’s remarks about the burden of proof did not affect
the judgment.

                                  V. CONCLUSION

       The judgment of the trial court is affirmed. The case is remanded for collection of
costs below. Cost on appeal are taxed to appellant, Thomas M. Gautreaux.




                                                   ________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                            -12-
