                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 29, 2001 Session

                  ALLISON COATS v. SMYRNA/RUTHERFORD
                       COUNTY AIRPORT AUTHORITY

                   Appeal from the Chancery Court for Rutherford County
                    No. 99MI-1476    Robert E. Corlew, III, Chancellor



                  No. M2000-00234-COA-R3-CV - Filed December 13, 2001


This action was brought by the plaintiff against the defendant following two requests by the plaintiff
pursuant to the Tennessee Public Records Act for certain documents relating to the Smyrna Airport
negotiations with Wiggins Group, PLC./Plane Station, Inc. The plaintiff alleged a statutory right to
inspect certain documents. Ultimately, the trial court ordered all of the documents released to the
plaintiff, but ordered correspondence addressed to or signed by the SRCAA attorney placed under
seal pending appeal. The principal issue on this appeal is whether the appellee is entitled to the
documents under seal pursuant to Tennessee Code Annotated section 10-7-503.

     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.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellant, Smyrna/Rutherford County Airport
Authority.

Allison Coats, Smyrna, Tennessee, Pro Se.

                                             OPINION

        The appellant in this case is a municipal airport authority located at the Smyrna Airport
known as the Smryna/Rutherford County Airport Authority (“SRCAA”). The appellee is a resident
of Smyrna and, by the date of the appellate court hearing, became a licensed attorney. The appellee
appeared in the trial court proceedings pro se. The appellee is one of five organizers and directors
of a community group known as Concerned Area Residents Get Organized (“CARGO”). The
present case arose out of proposed developments and negotiations between the Smyrna Airport and
the Wiggins Group, PLC/Plane Station, Inc. (“Wiggins”). The SRCAA was represented by a private
attorney in the negotiations. A letter of intent was entered between Wiggins and the SRCAA that
contained a confidentiality provision stating:
               CONFIDENTIAL INFORMATION. Lessor and Lessee acknowledge that in
       connection with this letter and the Lease, each will need to provide the other with the
       confidential information. Each agrees that it will take all reasonable steps to insure
       that each of its officers, employees, agents and advisors will:
                       (a)      Keep and safeguard as confidential all such confidential
       information.
                       (b)      Use such confidential information solely for the purposes of
       evaluation regarding and complying with the provisions of the Lease and for
       purposes of exercising the rights and privileges afforded under the Lease.
                        (c)     Not to disclose such confidential information except for the
       purposes described above, or except and in compliance with the requirements set
       forth above or except as required by law (or any regulations or guidelines having the
       force of law) or subpoena or by legal process or by any governmental or regulatory
       agency authority or body or as required by any stock exchange in which shares of
       Lessee or any affiliate of Lessee are traded or are to be traded. No information shall
       be deemed confidential information if at the time it was provided by Lessor or
       Lessee, as applicable, it was in the public domain or if it thereafter enters the public
       domain other than through the breach of these confidentiality provisions.

        On April 6, 1999, the plaintiff and Mr. King, the director of CARGO, entered the SRCAA
office and requested certain documents concerning correspondence relating to a lien on the airport
property held by Metro/Nashville Airport Authority. All further requests were referred to SRCAA’s
private attorney. The plaintiff was granted two of the three requested documents. On September 17,
1999, the plaintiff went to the SRCAA office requesting additional documents. She left a written
request, address, and phone number at the office. No further contact was made with the plaintiff
until she filed a petition.

       The plaintiff filed a petition on October 7, 1999 seeking to inspect certain documents
pursuant to Tennessee Code Annotated section 10-7-101, et seq. (“Act”). The plaintiff’s September
17, 1999 request included seven records or categories of records including: (1) A business plan of
Wiggins relative to the development of the Smyrna airport, (2) the source of information of the
“Airport Facts” which was released to explain Wiggins’ plans, (3) the source of information upon
which the Memorandum of Understanding between the Airport Authority and Wiggins Group was
based, (4) invoices for Air Cargo Feasibility Study and Strategic Plan prepared by Keiser &
Associates and the noise study by PBS&J, (5) proposed lease agreements by Wiggins, (6)
counter-proposed lease agreements from SRCAA to Wiggins , and (7) all correspondence between
SRCAA and Wiggins

        The SRCAA released the majority of the documents, however, the proposed lease agreements
and all of the correspondence between SRCAA and Wiggins were not disclosed.

       The Chancery Court for Rutherford County ordered the proposed lease agreements disclosed:



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                [T]he court finds that the Open Records Act applies to the Defendant, and
       that the Defendant must immediately provide to the Plaintiff access to the following
       documents: Lease Agreements proposed by Wiggins Group, PLC/Plane Station, Inc.;
       Lease Agreements proposed by the Defendant to Wiggins Group, PLC/Plane Station,
       Inc.. . . . The Court further finds that no documents have been identified which
       constitutes the source of information for a publication introduced known as “Airport
       Facts” or for a document entitled “Memorandum of Understanding” between the
       Defendant and Wiggins Group. The Court finds that the business plan of Wiggins
       Group, PLC/Plane Station, Inc. relative to development at the Smyrna Airport and
       an invoice for an Air Cargo Feasibility Study and Strategic Plan have been previously
       introduced.

        The trial court denied the appellant’s request for stay pending appeal and the leases were
released to the appellee. In a memorandum opinion letter submitted by the trial court, after
concluding that the leases were public records and that the plaintiff was entitled to them, the court
stated:

       The correspondence perhaps should be considered differently. If the Defendant
       claims that the correspondence between Wiggins and the Defendant is protected by
       the attorney-client privilege, it appears that these documents (or copies thereof)
       should be filed under seal and examined by the Court in camera, before being further
       considered. Initially, it would seem that the majority of these documents similarly
       have been communicated to third parties, and thus are not legitimately subject to the
       attorney-client privilege. Nonetheless, there may be an element of expectation of
       privacy in a letter not present in the draft of a contract. Although the letters which
       are directly between counsel and the agency probably are protected by the
       attorney-client privilege, communications between the agency and a third party are
       probably such to release under the Open Records Act.

       In a later letter, the court stated:

               I have concluded my review of the correspondence submitted to me by Mr.
       Cope under seal . . . . While I frankly believe that correspondence should fall within
       a different category under the open records law from legal documents, proposed or
       completed, I find no legal authority setting forth such a distinction. Upon review of
       the correspondence, I find nothing which would justify an order preventing their
       disclosure, although again I will acknowledge that even clothed with the authority of
       the Court, and with the ability, at least upon initial review, to keep secret all that I
       see, I continue to have the feeling that a sense of privacy is being invaded when the
       correspondence is made public. In fairness, it does not appear to the Court that any
       great amounts of information will be learned by the Plaintiff herein, or any other
       members of the public from the examination of the correspondence. The



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       correspondence, of course, contains nothing of a particularly sensitive nature, yet it
       appears to have been written with the expectation of privacy.

               Nonetheless, the law provides that such information is open to the public.

        The trial court ordered all correspondence between the SRCAA and Wiggins released
pursuant to the Act, but granted a stay of the order relating to correspondence addressed to or signed
by the SRCAA attorney.

         The appellant maintains that the documents at issue in this appeal include the proposed lease
agreements by Wiggins, the counter-proposed lease agreements from SRCAA to Wiggins , and all
correspondence between SRCAA and Wiggins. “To avoid being dismissed as moot, . . . issues must
. . . remain justiciable throughout the entire course of the litigation, including the appeal.” County
of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996) (citing McIntyre v. Traughber,
884 S.W.2d 134, 137 (Tenn. 1994)). We find that the issues relating to the draft leases and the
correspondence that were previously provided to the appellee are moot. Therefore, we take no
position as to the previously released documents. At issue on appeal are the documents under seal
including correspondence addressed to or signed by the SRCAA attorney (“correspondence”).

        Our review is governed by the provision of Tenn. R. App. P. 13(d) that “review of findings
of fact by the trial court in civil actions shall be de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” However, with regard to issues of law, the standard of review is de novo
without a presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997);
Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn.1996).

        In the present case, we are confronted with the application of the Act to correspondence
signed by or addressed to an attorney in the possession of the attorney. Public policy favors the right
of citizens to inspect public records. See City of Jackson v. Jackson Sun, Inc., 1988 WL 11515, at
*5 (Tenn. Ct. App. 1988). The public’s right to access records of governmental entities is very
broad, creating a presumption of openness. See Memphis Publ’g Co. v. City of Memphis, 871
S.W.2d 681, 684 (Tenn. 1994); see also Contemporary Media, Inc. v. City of Memphis, No.
02A01-9807-CH00211, 1999 WL 292264, at *3 (Tenn. Ct. App. 1999); see also Arnold v. City of
Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 1999); see also Tenn. Code Ann. §10-7-503. The
Legislature has declared that the Act “shall be broadly construed so as to give the fullest possible
public access to public records.” Tenn. Code Ann. §10-7-505 (d) (1999); See also Griffin v. City of
Knoxville, 821 S.W.2d 921, 924 (Tenn. Ct. App. 1991). However, not all public records are open
to inspection. Id. “The 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)
(1999).




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        The appellee maintains that the correspondence sought is within the purview of the Act and
the appellant maintains that the correspondence at issue signed by or received by an attorney is not
subject to the Act. First, the appellant argues on appeal that the correspondence does not fall within
the definition of public “records.”

          The first issue we address is whether or not the documents in the correspondence are public
records within the meaning of the Act. Public records are defined as “all documents, papers, letters,
. . . or other material . . . 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)
(1999). Tennessee Code Annotated § 10-7-503 provides “all state, county and municipal records
. . . except any public documents authorized to be destroyed . . . shall at all times, during business
hours, be open for personal inspection . . . and those in charge of such records shall not refuse such
right of inspection . . . unless otherwise provided by state law.” (Emphasis added).

        The final clause of Tennessee Code Annotated section 10-7-503(a) stating that documents
are available ‘unless otherwise provided by state law’ qualifies the presumption of openness by
creating a general exception for other state laws protecting documents. Arnold v. City of
Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 1999) (citing Ballard v. Herzke, 924 S.W.2d 652,
662 (Tenn. 1996); Appman v. Worthington, 746 S.W.2d 165, 167 (Tenn. 1987)).

        “The proper test in determining whether material is a public record remains whether it was
‘made or received pursuant to law or ordinance or in connection with the transaction of official
business by any governmental agency,’ ” and “[a]pplication of this test requires an examination of
the totality of the circumstances.” Id at 924 (citing Tenn. Code Ann. §10-7-301). The
correspondence was ‘made’ in the course of the entity’s official business in connection with official
business. In an effort to comport with the Legislature’s mandate that the Act be construed broadly
as possible, we take the position that the correspondence meets the expansive definition of public
record.

        Aside from the general exception, T.C.A. 10-7-504, and numerous other statutes
cross-referenced create classes of confidential records not subject to inspection. See Griffin, 821
S.W.2d 921, 923. Among the exceptions is one for the work product of the Attorney General and
Reporter or any attorney thereunder. Arnold, 19 S.W.3d 779, 785. Correspondence addressed to or
signed by an attorney retained by a public entity is not specifically excluded by the statutes.

        An entity cannot protect public records under the Act by shielding them behind a private
attorney or otherwise by placing them in the possession of a private entity. If something is a public
record, it remains a public record regardless of its physical location. See Creative Restaurants v.
City of Memphis, 795 S.W.2d 672, 679 (Tenn. Ct. App. 1990).

        The appellant argues that the Act is inconsistent with Canon 4. The appellant is not asking
this Court to declare the Act unconstitutional. Rather, the appellant argues that the correspondence
falls within the broad exception of “otherwise provided by state law” contained in the Act. See


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Tenn. Code Ann. §10-7-503(a). “It is certainly true that the Legislature is forbidden from destroying
an attorney’s ability to fulfill his ethical duties to a client.” Memphis Publ’g Co., 871 S.W.2d 681,
688. We recognize the competing interests at stake in this lawsuit between the attorney’s duty and
the right of the public to access public records.

       The competing interests have been addressed previously concerning the Open Meetings Act:

               In Smith County Educ. Ass’n v. Anderson, 676 S.W.2d 328 (Tenn. 1984), we
       held that a provision of the Tennessee Open Meetings Act which prohibited a public
       body from holding private meetings could not be construed to prevent a public body
       from meeting in private with its attorney to discuss pending litigation. If the statute
       were so construed, we stated, the attorney’s ability to fulfill his duty not to reveal its
       client’s secrets would be destroyed.
       ....
               We emphasize, however, that any attempt to discover material in the
       possession of a governmental attorney that actually constitutes work product will be
       unsuccessful for the above-mentioned reasons. Therefore, we expressly invite the
       Legislature to remedy the underinclusiveness of §10-7-504 by excepting the work
       product of county and municipal attorneys from public view.

Id. at 688-89.

        The specific issue in the present case concerns Canon 4 and the general exception contained
in the Act. Canon 4 provides “[a] lawyer should preserve the confidences and secrets of a client.”
Sup. Ct. R. 8, Canon 4.

       ‘Confidence’ refers to information protected by the attorney-client privilege under
       applicable law, and ‘secret’ refers to other information gained in the professional
       relationship that the client has requested be held inviolate or the disclosure of which
       would be embarrassing or would be likely to be detrimental to the client.
       (B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
       (1) Reveal a confidence or secret of a client.
       ....
       (C) A lawyer may reveal:
       ....
       (2) Confidences or secrets when permitted under Disciplinary Rules or required by
       law or court order.

Id. DR 4-101 (Emphasis added).


       The preliminary statement to Supreme Court Rule 8 states:



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               The Canons are statement of axiomatic norms, expressing in general terms
       the standards of professional conduct expected of lawyers in their relationships with
       the public, with the legal system, and with the legal profession. . . .
               The Ethical Considerations are aspirational in character and represent the
       objectives toward which every member of the profession should strive. . . .
               The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in
       character. The Disciplinary Rules state the minimum level of conduct below which
       no lawyer can fall without being subject to disciplinary action.

Sup. Ct. R. 8 Code of Professional Responsibility, Preliminary Statement.

       In Arnold, the Eastern Section of this Court concluded that work products of an attorney for
a governmental entity were not subject to disclosure under the Public Records Act, if the privilege
were not waived. The Court stated:

               The Public Records Act is to be broadly construed so as to give the fullest
       possible public access to public records. T.C.A. §10-7-505(d). Yet, that Act creates
       exception for documents made privileged or protected from disclosure by other state
       law. Just as important as public access to government records, is the right of a client
       to effective assistance of counsel. Canon 4 of the Code of Professional
       Responsibility, mandates that an attorney not betray the confidences of his client.
       The primary purpose of the work product privilege is to assure that an attorney is not
       inhibited in his representation of his client by the fear his files will be open to
       scrutiny upon demand. Moreover, if the client were aware that its secrets, embodied
       in the attorney’s internal memorandum or other document, would all be subject to
       public scrutiny, it would limit the client’s willingness to speak openly with his or her
       attorney and would consequently affect the attorney’s ability to represent his or her
       client.

Arnold, 19 S.W.3d 779, 787.

        In the present case, we are not dealing with the work product doctrine. The work product
doctrine protects documents of an attorney prepared by the attorney, or another in his behalf, in
preparation for trial or anticipation of litigation. Id. at 783. Further, the appellant is not arguing
attorney-client privilege, having abandoned it in argument. The fact that records are merely signed
by or written to an attorney is not sufficient reason to block public access. Even though the public’s
right of inspection is broad, it is not absolute and important countervailing interests can sometimes
outweigh the right and defeat the presumption of openness if provided by law.

        The Supreme Court Rules are the law of this State and, therefore, are included in the phrase
‘unless otherwise provided by State law.’ Tenn. Code Ann. §10-7-503(a). The mandatory
disciplinary rules state that “[a] lawyer may reveal confidences and secrets when required by law or
court order. DR 4-101(C)(2).” “It is certainly true that the Legislature is forbidden from destroying


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an attorney’s ability to fulfill his ethical duties to a client.” Memphis Publ’g Co., 871 S.W.2d at 688.
Thus, an ethical duty of an attorney in The Code of Professional Responsibility may create an
exception to the Act. Accordingly, Canon 4 may exempt certain confidences and secrets from
inspection under the Act. In Combined Communications, Inc. v. Solid Waste Region Board, No. 01-
A-01-9310-CN00441, 1994 WL 123831, at *2 (Tenn. Ct. App. April 13, 1994), this Court stated:

                The courts of this state have held that under some circumstances,
        communications from an attorney to his client that meet the definition of a public
        record may be exempt from the provisions of Tenn. Code Ann. §10-7-503. However,
        “the privilege does not extend to communications from an attorney to a client when
        they contain advice solely based upon public information rather than confidential
        information.”

Combined Communications, Inc. v. Solid Waste Region Board, No. 01-A-01-9310-CN00441, 1994
WL 123831, at *2 (Tenn. Ct. App. April 13, 1994) (citing Bryan v. State of Tennessee, 848 S.W. 2d
72 (Tenn.Crim.App. 1992)).

       Under our exercise of review, the correspondence that is the subject of this litigation does
not contain any information of a confidential or secret nature. It cannot be said that as a general rule,
Rule 4 applies to all documents written to an attorney or signed by an attorney. The Rule cannot
have such a blanket application.

       After examining the totality of the circumstances, we affirm the trial court and find that the
correspondence addressed to or signed by the SRCAA attorney should be provided to the appellee.

       With regard to the documents under seal, we order that the documents remain under seal for
the well-stated reasoning by the Western Section of this Court:

         Recognizing that the appellate process does not end with this Court, in order to prevent the
issue from becoming moot until the judicial process is completed, the original documents initially
filed in a sealed envelope with the chancery court and subsequently transmitted to the clerk of this
Court in the same manner shall remain sealed and closed under the jurisdiction of the Clerk of this
Court until the time for filing an Application for Permission to Appeal to the supreme Court has
expired and the mandate of this Court has issued or, in the event Application for Permission to
Appeal is made to the Supreme Court, until that Application is acted upon by that Court and a final
judgment entered by the Supreme Court.

City of Jackson v. Jackson Sun, Inc., 1988 WL 11515, at *6 (Tenn. Ct. App. 1988).

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

                                                        ____________________________________
                                                        WILLIAM B. CAIN, JUDGE


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