                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs January 10, 2001

                    OMAWALI ASHANTI SHABAZZ, A/K/A
                  FRED E. DEAN v. DONAL CAMPBELL, ET AL.

                    Appeal from the Chancery Court for Davidson County
                      No. 99-2160-III  Ellen Hobbs Lyle, Chancellor



                     No. M2000-01780-COA-R3-CV - Filed July 19, 2001


Appellant, a prison inmate, filed suit under the Tennessee Public Records Act against the
Commissioner of the Department of Corrections and others seeking disclosure to him of various
records alleged to be public records, together with injunctive relief. The Chancellor dismissed the
complaint with prejudice and we affirm the Chancellor.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL , J. joined.

Omawali Ashanti Shabazz, a/k/a Fred E. Dean, Petros, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General and Michael
W. Catalano, Associate Solicitor General; Darrell G. Townsend and Derrick C. Smith, Nashville,
Tennessee, for the appellees, Donal Campbell, et al.

                                            OPINION

         Fred E. Dean filed suit July 30, 1999, in the Chancery Court of Davidson County, Tennessee,
against Donal Campbell, Commissioner of the Tennessee Department of Corrections; Bob Bradford,
Director of Health Services for TDOC; Ricky Bell, Warden of Riverbend Maximum Security
Institution; Leon Olenick, Health Administrator at Riverbend Maximum Security Institution; Prison
Health Services, Inc., a health care provider under contract with TDOC; the Institutional Warden at
Lauderdale County Correctional Center; Jim Blankenship, Health Administrator at Lauderdale
County Correctional Center; David G. Mills, Warden of Brushy Mountain State Penitentiary, and
David P. Rogowski, acting Health Administrator at Brushy Mountain State Penitentiary, under the
Tennessee Public Records Act seeking the production and delivery to him of various alleged public
records.
On February 16, 2000, the Chancellor entered a Memorandum and Order providing:

        Tennessee Code Annotated section 10-7-505 provides that any citizen who
has requested personal inspection of a state, county or municipal record as provided
in Tennessee Code Annotated section 10-7-503 and whose request has been in whole
or in part denied by an official is entitled to petition the chancery court for the county
in which the records sought are situated. Section 10-7-505(b) provides that the
chancery court, upon the filing of the petition and the request of the petitioning party,
shall issue an order requiring the defendant to immediately appear and show cause
why the petition should not be granted.

        In this case the petitioner, an inmate incarcerated at Brushy Mountain
Correctional Complex, has filed a petition asserting that he has been denied access
to records in violation of the Tennessee Public Records Act.

        Before the Court are several motions: the petitioner’s motion to set a hearing
for injunctive relief; the petitioner’s motion to file a supplemental complaint to add
causes of action against two respondents: Sam DiNicola, director of training at the
Tennessee Correction Academy, and the director of accreditation/compliance for the
TDOC. Also before the Court is the motion of the respondents to dismiss.

        The Court has reviewed the materials which the petitioner sought disclosure
of under the Public Records Act. The Court finds that the requests numbered 5
through 26, 28 through 32 (the second request numbered 32) and request number 33
are not requests for inspection of a state, county or municipal record but, are instead,
questions or interrogatories which are not required to be answered and are not rights
provided under the Public Records Act.

         However with respect to the petitioner’s requests 1, 2, 3, 4, 27 and 32 (the
first request numbered 32), the Court requires the respondents to answer in writing,
on or before March 31, 2000, why the petition as to those records should not be
granted. Additionally, the respondents need to provide the Court with any argument
and legal authority on whether the petitioner has a right to have the documents
forwarded to the prison facility to view them before he determines which ones he
wants copied or whether the only right the petitioner has under the Public Records
Act, because he is incarcerated and cannot go to the place where the records are held
to view them, is to pay for copies of the documents and have them sent to him
without first being allowed to view the documents.

        Consistent with the foregoing determination by the Court, the Court grants
the respondents’ motion to dismiss as it pertains to petitioner’s requests for
inspection numbered 5 through 26, 28 through 32 (the second request) and 33 on the
grounds that the petitioner has failed to state a claim as to those requests because they


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       are not records but are instead questions or interrogatories. The Court denies the
       respondents’ motion to dismiss as to petitioner’s requests 1 through 4, 27 and 32 (the
       first request number 32).

               The Court denies the petitioner’s request for a hearing for injunctive relief,
       instead having required the respondents to state in writing why the petition should
       not be granted as to requests 1 through 4, 27 and 32 (the first request number 32).

              Additionally, the Court denies the petitioner’s motion to file a supplemental
       complaint against two additional respondents. The reason for the denial is that such
       a complaint would be futile because those respondents do not have sufficient
       connection with furnishing records so as to be a respondent party under the
       Tennessee Public Records Act.

               It is so ORDERED.

        On June 8, 1999, Appellant had filed a request for what he termed “public records” with the
state defendants with requests for disclosure as follows:

       1.      Copies of my institutional segregation unit record sheets for
               December 18, 1996 through March 22, 1997.

       2.      Copies of the unit administrative segregation encounter logs for
               December 18, 1996 th[r]ough March 22, 1997.

       3.      Copies of the quality improvement reviews for 1996-98, that were
               submitted to the Statewide Quality Improvement Coordinator during
               1996-98.

       4.      Please provide a copy of the quality improvement reviews for 1996-
               98 that were submitted to each of the named institutions, institutional
               improvement committee/person.

       5.      Please provide the names and duties of the Director of Nursing who
               was employed as such at each institution mentioned in this request
               from 1996-98.

       6.      Please provide the names and duties of the charge Nurse who was
               employed as such at each institution mentioned in this request from
               1996-98.

       7.      Please provide any and all policies, protocols, memorandum, post-
               orders, directives, or any other document that sets forth the procedure


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      that was used during 1996-98, to insure that an inmate received his
      medication according to an [sic] physician’s treatment plan at each
      institution mentioned in this request.

8.    Please provide a detailed description of what the Institutional Warden
      and Health Administrator did to insure that inmates were provided
      with adequate medical care at each institution mentioned in this
      request during 1996-98. If this information is contained in any
      document, please produce.

9.    Please produce any and all documents, policies, protocols,
      memorandums [sic], post-orders, directives, or any other document,
      that would show the training that nursing staff received in 1996-98 to
      effectively provide medical services in a prison setting at each
      institution mentioned in this request.

10.   Please produce any and all documents, policies, protocols,
      memorandums [sic], directives or post-orders that describe the
      procedure that was used during 1996-98, to ensure that new inmates,
      and/or transit inmates received their prescribed medications according
      to the physician’s treatment plan at each institution mentioned in this
      request.

11.   Please describe the procedure that was used during 1996-98, by
      prison officials to ensure that medical contracting services were
      providing adequate medical care at each of the institution [sic]
      mentioned in this request.

12.   During 1996-98, who were the nurses responsible for bringing
      medications to segregated inmates at each institution mentioned in
      this request. If these names are set forth in any logs, schedules, or
      other documents, please produce.

13.   Please provide the names and duties of the Cronic [sic] Care Nurses
      who were assigned at each institution mentioned in this request
      during 1996-98.

14.   Please provide the names and duties of the Institutional Continuous
      Improvement Coordinator, or other designated registered nurses
      serving as Tuberculosis [C]ontrol Coordinator during 1996-98 at each
      institution mentioned in this request.




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15.   Please provide what training medical staff persons received in 1996-
      98 by PHS, or either of the institutions mentioned in this request,
      regarding Tuberculosis prevention/infection control.         If this
      information is contained in any document, please provide.

16.   Please describe exactly what the Institutional Continuo[u]s Quality
      Improvement Coordinator did to ensure that an inmate transferred to
      [from] one institution to another receives his Tuberculosis medication
      uninterrupted, at each institution mention[ed] in this request. If this
      information is set forth [in] any document for 1996-98, please
      produce.

17.   What were the PHS, or either of the institutions mention[ed] in this
      request, protocols for dispensing Tuberculosis preventive [sic]
      medication. If this information is set forth in any document for 1996-
      98, please produce.

18.   In 1996-98, what were the protocols for nursing supervision at each
      of the institutions named in this request. If this information is set
      forth in any document please produce.

19.   In 1996-98, what were the protocols for transferring medications from
      one institution to the next, when an inmate is transferred at each
      institution named in this request. If this information is set forth in
      any document, please produce.

20.   Who was responsible at each institution named in this request for
      establishing medical protocol during 1996-98. If this information is
      contained in any document, please produce.

21.   Who was responsible at each institution named in this request for
      implimenting [sic] medical protocol during 1996-98. If this
      information is contained in any document, please produce.

22.   Who was responsible at each institution named in this request for
      enforcing medical protocol during 1996-98. If this information is
      contained in any document, please produce.

23.   Please produce directives, protocols, guidelines or decisions
      promulgated at each institution named in this request that pertain to
      Tuberculosis control, distribution of Tuberculosis medication, and
      any other documents promulgated during 1996-98, at each institution
      named in this request, as it pertains to Cronic [sic] Care Inmates.


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24.   Please produce any documents that establish who was the final
      decision making authority over medical services at each institution
      named in this request, during 1996-98.

25.   What training, if any, did medical personnel working at the
      institutions named in this complaint receive at the Tennessee
      Correction Academy during 1996-98. If this information is set forth
      in any document, please produce.

26.   Please [p]roduce when and where medical personnel at each
      institution named in this request, received training/orientation
      pertaining to TDOC and institutional policies pertaining to health
      case services provided to inmates during 1996-98. If this information
      is contained in any document, please produce.

27.   Please produce a copy of the TDOC Tuberculosis/Prevention
      Guidelines Manuel [sic].

28.   Who on the institutional level was responsible at each of the
      institutions named in this request for training and supervising nursing
      staff in their daily duties during 1996-98. If this information is
      contained in any document, please provide.

29.   Who on the institutional level [w]as responsible at each of the
      institutions named in this request for filling a doctor’s order for
      prescribed medications. If this information is in any document,
      please produce.

30.   Please provide a detailed description of the duties of the Health
      Administrator, Nurse Practitioner, Nurse Supervisors and nursing
      staff employed during 1996-98, at the institutions named in this
      request. If these duties are set forth in any document, please produce.

31.   Please provide a copy of the following nurses registration/license:
      Donna Max; Sheila Moffatt; Yolanda Taylor; Mary Richard; Marilyn
      McDougal; Christian Boettcher; Angie Weir; Sandra Green.

32.   Please provide a copy of any and all Prison Health Services, Inc.,
      policies, protocols, directives, memorandums [sic]; decisions; and/or
      any other document promulgated by Prison Health Services, Inc., that
      pertains to: (a) distribution of medications, (b) sick call procedures,
      (c) medical emergences [sic], (d) training of medical staff, (e) record



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               keeping, (f) tuberculosis treatment and prevention, (g) supervision of
               medical staff, and (h) cronic [sic] care inmates.

       33.     Please provide the name, position and duties of the person(s) at
               Prison Health Services, Inc., who is responsible for establishing,
               implimenting [sic] and enforcing policy and/or protocol.

       Plaintiff states in his complaint that “all documents are relevant to a pending case before the
U.S. District Court, in Nashville, Tennessee. Dean v. Campbell, No. 97-0556 and Dean v. Conley,
No. 98-0708.”

       What the complaint does not disclose is that in each of these two federal cases, all discovery
and other proceedings had been stayed by order of the Federal District Court.

        It takes only cursory review of the requests by Appellant to see that the Chancellor correctly
held that those requests numbered 5 through 26 and numbered 28 through 32, along with request
number 33, are simply interrogatories for discovery purposes and not for documents that might be
called “public records” under the Public Records Act. Tenn. Code Ann. § 10-7-503, et seq.

       As to request numbers 1, 2, 3, 4, 27 and 32, the trial court required an answer from the
defendants.

       Following the response of the defendant, the trial court entered its Final Memorandum and
Order of May 5, 1999, holding, in pertinent part:

                Request no. 1. Respondents Donal Campbell, Bob Brandford, Ricky Bell,
       Alton Hesson, Jim Blankenship, David Rogowski and David Mills (hereinafter
       referred to as “Donal Campbell, et al.”) have asserted through counsel that the
       institutional segregation unit records consist of 62 pages and will be furnished to
       petitioner upon payment of $12.40 (20¢ per page).

              Based upon the foregoing, the Court determines that the petitioner has not
       been denied access to records in violation of the Tennessee Public Records Act and
       dismisses the petition as to request no. 1.

              Request no. 2. The Court denies the petition for copies of unit administrative
       segregation and counter logs for December 18, 1996 through March 22, 1997, on the
       grounds that no such documents as “unit administrative segregation and counter logs”
       exist.

              Request no. 3 and Request no. 4. The Court denies the petitioner’s request
       for copies of the quality improvement reviews for 1996 through 1998 that were
       submitted to the statewide quality improvement coordinator during those years and


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denies copies of the quality improvement reviews for 1996 through 1998 that were
submitted to each of the named institutions or institutional improvement
committee/persons on the grounds that those documents are confidential pursuant to
Tennessee Code Annotated section 63-6-219 and are not public records.

        Request no. 27. The Court denies the petition for a copy of the TDOC
tuberculosis control/prevention guidelines manual because respondents Donal
Campbell, et al. have agreed to furnish the manual to the petitioner upon payment of
$14.00 (the manual consists of 70 pages and copying costs are 20¢ per page). That
agreement establishes that the petitioner has not been denied access to records in
violation of the Tennessee Public Records Act.

        Request no. 32. The Court denies petitioner copies of registrations and
licenses for nurses Donna Max, Sheila Moffatt, Yolanda Taylor, Mary Richard,
Marilyn McDougal, Christian Boettcher, Angie Weir and Sandra Green on the
grounds that these persons are not State employees and therefore the State does not
have personnel files on these persons and does not have custody of their
registration/licenses.

Petitioner’s Request For a Free Preview of the Documents

        The Court additionally determines that should the petitioner seek to obtain
certain documents under the Public Records Act that he is required to submit
payment for the copies at 20¢ per page and the documents will be forwarded to him.
The Department of Corrections has promulgated reasonable rules regarding access
to public records for inspection and copying. There are no provisions expressed in
the Public Records Act for exceptions to be made for persons who cannot come to
the place where the records are kept. Thus, the petitioner is not entitled to view the
documents free of charge before requesting copies.

Causes of Action against Prison Health Services, Inc. and Leon Olenick

       The Court dismisses the above-captioned action against respondents Prison
Health Services, Inc. and Leon Olenick with prejudice on the grounds that Prison
Health Services, Inc. is not a governmental entity and is not subject to the
requirements of the Tennessee Public Records Act and Leon Olenick is a PHS
employee and not a governmental employee subject to the Act. Thus, PHS and
Olenick may not be compelled to produce any records pursuant to the Act. The party
seeking records bears the burden of proof to show that the business qualifies as a
governmental entity to which the Act applies. Memphis Publishing Co. v. Shelby
County Healthcare Corp., 799 S.W.2d 225, 228 (Tenn.App. 1990). The petitioner
has made [no] showing that PHS qualifies as a governmental entity or that its
employee, Leon Olenick, is an employee of a governmental entity.


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       The holdings of the Chancellor are clearly correct and as to those documents which are
indeed public records as found by the trial judge, Appellant is entitled to a copy of same when he
pays for such copying in conformance with Tennessee Code Annotated Section 10-7-507.
Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297, 303-304 (Tenn. 1998); Tenn.
Code Ann. § 10-7-506(a) (1988); Cammuse v. Davidson County District Attorney, et al., 1999 WL
159691 (Tenn.Ct.App. 1999).

       The judgment of the trial court is in all respects affirmed with costs assessed to Appellant.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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