Clata Renee Brewer v. Metropolitan Government of Nashville and Davidson County ( 2023 )

11/30/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 16, 2023 Session
CLATA RENEE BREWER ET AL. v. METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON COUNTY ET AL.
Appeal from the Chancery Court for Davidson County
No. 23-0538-III I’Ashea L. Myles, Chancellor
___________________________________
No. M2023-00788-COA-R3-CV
___________________________________
This action involves various requests directed to the Metropolitan Government of
Nashville and Davidson County (“Metro”) for the release of records, pursuant to the
Tennessee Public Records Act (“TPRA”), related to a school shooting that occurred at a
private school in Nashville. Before making a determination concerning release of the
records, the trial court allowed certain interested parties to intervene in the action
pursuant to Tennessee Rule of Civil Procedure 24.02. The parties requesting the records
have appealed that ruling pursuant to Tennessee Rule of Civil Procedure 24.05.1
Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and KRISTI M. DAVIS, JJ., joined.
Paul J. Krog, Brentwood, Tennessee; Nicholas R. Barry, Washington, D.C.; John I.
Harris, III, and Douglas R. Pierce, Nashville, Tennessee; and Richard L. Hollow,
Knoxville, Tennessee, for the appellants, Clata Renee Brewer; James Hammond;
Tennessee Firearms Association, Inc.; Michael P. Leahy; Star News Digital Media, Inc.;
The Tennessean; Rachel Wegner; and Todd Gardenhire.
Wallace W. Dietz, Director of Law; Lora Barkenbus Fox, Associate Director of Law;
Cynthia E. Gross; and Phylinda Ramsey, Nashville, Tennessee, for the appellee,
Metropolitan Government of Nashville and Davidson County.
1
Tennessee Rule of Civil Procedure 24.05 provides: “Any order granting or denying a motion to
intervene filed pursuant to this rule shall be a final judgment for purposes of Tenn. R. App. P. 3.”
Eric G. Osborne, William L. Harbison, Christopher C. Sabis, C. Dewey Branstetter, Ryan
T. Holt, Micah N. Bradley, Frances W. Perkins, Hunter C. Branstetter, William D. Pugh,
Edward M. Yarbrough, Sara D. Naylor, and Hal Hardin, Nashville, Tennessee, for the
appellees, Parents of Minor Covenant Students Jane Doe and John Doe.
Rocklan W. King, III; F. Laurens Brock; and Ashley H. Harbin, Nashville, Tennessee, for
the appellee, Covenant Presbyterian Church of Nashville.
Peter F. Klett and Autumn L. Gentry, Nashville, Tennessee, and Nader Baydoun and
Stephen Knight, Brentwood, Tennessee, for the appellee, The Covenant School.
Samuel P. Funk, James K. Vines, Grace A. Fox, and Evan S. Rothey, Nashville,
Tennessee, for Amici Curiae, Franklin Road Academy, Montgomery Bell Academy, Oak
Hill School, and St. Paul Christian Academy.
OPINION
I. Factual and Procedural Background
On March 27, 2023, a tragic school shooting occurred in Nashville at The
Covenant School (“the School”), a private school operated by Covenant Presbyterian
Church of Nashville (“the Church”). Six people were killed, including three children and
three adults. The shooter was killed at the scene after opening fire on responding Metro
officers. A subsequent search of the shooter’s car and home by Metro apparently
revealed the existence of a “manifesto” and additional writings by the shooter, as well as
other evidence concerning the shooter’s thoughts and plans, all of which were confiscated
by Metro officers.
In the weeks following the incident, various individuals sought to gain access to
these documents in Metro’s possession, including Todd Gardenhire, Chairperson of the
Tennessee Senate Judiciary Committee; The Tennessean, a Nashville-based newspaper;
Rachel Wegner, a reporter for The Tennessean; James Hammond and the Tennessee
Firearms Association, Inc.; Clata Renee Brewer (in conjunction with the National Police
Association); Star News Digital Media, Inc. (“Star News”); and the chief executive
officer of Star News, Michael Leahy (collectively, “Petitioners”). When their requests
for access to the Metro records concerning the shooting were denied, Petitioners filed
petitions in various Davidson County courts seeking to gain access to the records. These
petitions were filed pursuant to Tennessee Code Annotated § 10-7-503 (Supp. 2023) of
the TPRA, which provides in relevant part that “[a]ll state, county and municipal records
shall . . . be open for personal inspection by any citizen of this state.” The petitions were
subsequently transferred to the Davidson County Chancery Court, Part III (“trial court”),
and consolidated into one action.
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Meanwhile, on May 12, 2023, the Church filed a motion to intervene, stating that
it shared a physical facility with the School. In the motion, the Church asserted that it
should be allowed to intervene in the pending TPRA actions, pursuant to Tennessee Rule
of Civil Procedure 24.01, because the records in Metro’s custody contained confidential
information concerning facility schematics and employees of the Church. The School
filed a motion to intervene a few days later on May 15, 2023, also predicated on Rule
24.01 and citing largely the same reasons supporting intervention as contained in the
Church’s motion. On May 17, 2023, a group of parents of students who were attending
the School at the time of the shooting (“the Parents”) also filed a motion to intervene.
The Parents stated that they sought to intervene to oppose disclosure of the records
concerning the shooting in order to prevent the infliction of additional trauma on the
School’s students and their families.
In response to the petitions seeking access to the records, Metro filed declarations
on May 17, 2023, stating that Metro was conducting an ongoing criminal investigation to
determine whether the shooter had assistance in the criminal acts. As such, Metro
claimed that Tennessee Rule of Criminal Procedure 16 prevented disclosure of the
records.
The trial court conducted a hearing regarding the motions to intervene filed by the
Church, the School, and the Parents (collectively, “Intervenors”) on May 22, 2023. The
trial court subsequently entered an order on May 24, 2023, allowing the permissive
intervention of the Church and the School predicated on Tennessee Rule of Civil
Procedure 24.02. The court noted that these parties sought to protect private information
to which Petitioners would not normally have access inasmuch as the Church and the
School were private entities. The court also relied upon the affidavits filed by Metro
establishing that an active, ongoing criminal investigation existed regarding potential co-
conspirators.
In its order, the trial court explained that Rule 24.02 allowed permissive
intervention when, inter alia, a movant’s claim or defense maintained common questions
of law or fact with the main action. The court reasoned that the Church and the School
maintained common questions of law and fact with the parties because, like Metro, the
Church and the School had claimed that irreparable injury would occur if there were
public access to the private information contained in the records at issue. The court
therefore determined that the requirements of Rule 24.02 had been satisfied and granted
intervention. The court directed the Church and the School to file briefs detailing the
nature of their claims and defenses in this matter.
The trial court concomitantly entered a second order, granting the Parents’ motion
to intervene and allowing the Parents to proceed under a pseudonym upon the filing of a
proper affidavit to be filed under seal. The court noted that the Parents’ claims were
based on the Victims’ Bill of Rights and Article I, § 35 of the Tennessee Constitution.
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The court determined that because the Parents’ children were victims of a crime, the
Parents had a sufficiently personal stake in the litigation to establish standing to
intervene. The court also determined that the Parents, on behalf of their children, shared
common questions of law and fact with the parties. The court thus granted permissive
intervention pursuant to Rule 24.02 and directed the Parents to file a brief setting forth
their claims and defenses.
The Church subsequently filed a brief in support of its request that the trial court
deny disclosure of the records at issue. In its brief, the Church explained that the Church
and the School shared facilities, including a security system, and that employees of the
Church worked in those facilities. In fact, the Church claimed that one of the shooting
victims was an employee of the Church. The Church stated as further bases for
preventing disclosure that (1) Metro was conducting an ongoing criminal investigation;
(2) school security records are an exception to the TPRA pursuant to Tennessee Code
Annotated § 10-7-504; and (3) the records contained personal information with respect to
employees of the Church, which information should be protected based on the
employees’ right to privacy.
The Parents filed a similar brief on May 30, 2023, stating that the records should
not be disclosed by reason of the school security exception to the TPRA and the fact that
the records contained personal information concerning minors. The Parents also argued
that releasing the shooter’s manifesto could lead to “copycat” crimes. The School
likewise filed a brief on May 30, 2023, relying on the school security exception to the
TPRA. Metro also filed a brief, asserting that the records sought should not be disclosed
due to the ongoing criminal investigation and also because they were not “public records”
as defined in the TPRA inasmuch as they pertained to school security and contained
personal information regarding minors and deceased victims.
Meanwhile, Petitioners filed separate notices of appeal, pursuant to Tennessee
Rule of Civil Procedure 24.05, regarding the trial court’s grant of the motions to
intervene. Shortly thereafter, Petitioners filed an emergency motion seeking a stay in the
trial court, arguing that the pending appeal deprived the trial court of jurisdiction in the
matter. The trial court denied this motion by order entered on June 12, 2023, determining
that no reason existed to stay the entire proceeding when only the issue of intervention
had been appealed. On June 21, 2023, this Court entered an order expediting the appeal
and providing a truncated briefing schedule. This Court also stayed the underlying trial
court proceedings, reasoning that the matter should not move forward until the proper
parties to the action had been identified.
II. Issues Presented
Petitioners present the following issues for our review, which we have restated
slightly:
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1. Whether the trial court erred by concluding that the TPRA
authorized the intervention of third parties who are neither record
requesters nor government custodians.
2. Whether the trial court lacked subject matter jurisdiction to permit
intervention by parties without standing.
3. Whether the trial court erred by allowing Intervenors to intervene
permissively.
4. Whether Petitioners are entitled to attorney’s fees incurred on
appeal.
III. Standard of Review
As our Supreme Court has previously explained, a trial court’s decision
concerning the propriety of a party’s permissive intervention is reviewed for an abuse of
discretion. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn.
2000). The High Court has further explained that a court abuses its discretion “when it
causes an injustice to the party challenging the decision by (1) applying an incorrect legal
standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a
clearly erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 524 (Tenn. 2010).
To the extent that this action involves questions of statutory interpretation related
to the TPRA, our Supreme Court has instructed:
Statutory construction is a question of law that is reviewable on a de novo
basis without any presumption of correctness. Gleaves v. Checker Cab
Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co.,
970 S.W.2d 920, 924 (Tenn. 1998). When dealing with statutory
interpretation, well-defined precepts apply. Our primary objective is to
carry out legislative intent without broadening or restricting the statute
beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90
S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we
presume that every word in a statute has meaning and purpose and should
be given full effect if the obvious intention of the General Assembly is not
violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005).
When a statute is clear, we apply the plain meaning without complicating
the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
2004). Our obligation is simply to enforce the written language. Abels ex
rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only
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when a statute is ambiguous that we may reference the broader statutory
scheme, the history of the legislation, or other sources. Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998).
Further, the language of a statute cannot be considered in a vacuum, but
“should be construed, if practicable, so that its component parts are
consistent and reasonable.” Marsh v. Henderson, 221 Tenn. 42, 424
S.W.2d 193, 196 (1968). Any interpretation of the statute that “would
render one section of the act repugnant to another” should be avoided.
Tenn. Elec. Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d
441, 444 (1937). We also must presume that the General Assembly was
aware of any prior enactments at the time the legislation passed. Owens v.
State, 908 S.W.2d 923, 926 (Tenn. 1995).
In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).
IV. Construction of the TPRA
Petitioners posit that the TPRA does not permit the intervention of a third party
because its provisions appear to contemplate solely the governmental entity with custody
of the records and the person or entity seeking to gain access to the records as parties.
Petitioners therefore argue that the trial court improperly construed the TPRA’s language
by allowing intervention. Upon our thorough review of the applicable law, we disagree.
As our Supreme Court has previously clarified regarding the purpose of the
TPRA:
For more than a century, Tennessee courts have recognized the
public’s right to inspect governmental records. See, e.g., State ex rel.
Wellford v. Williams, 110 Tenn. 549, 75 S.W. 948, 959 (1903) (holding that
Memphis residents concerned about the city’s financial condition had the
right to inspect the city’s records). In 1957, the General Assembly codified
this right of public access by enacting the state’s first public records
statutes. See Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App.
2004) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). The
Public Records Act has been amended over the years, but its intent has
remained the same—to facilitate the public’s access to government records.
Swift, 159 S.W.3d at 571 (citing [Memphis Publ’g Co. v.] Cherokee
Children & Family Servs., Inc., 87 S.W.3d [67,] 74 [(Tenn. 2002)];
Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 687-88 (Tenn.
1994)); see also Cole v. Campbell, 968 S.W.2d 274, 275 (Tenn. 1998)
(noting that “[t]his Court has upheld this legislative mandate on numerous
occasions”). The Public Records Act has a noble and worthwhile purpose
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by providing a tool to hold government officials and agencies accountable
to the citizens of Tennessee through oversight in government activities.
***
There is a presumption of openness for government records.
Memphis Publ’g Co., 871 S.W.2d at 684. Custodians of the records are
directed to promptly provide for inspection any public record not exempt
from disclosure. The Public Records Act directs the courts to broadly
construe the Act “so as to give the fullest possible access to public records.”
The Act allows a person whose request for public records is denied to file
suit and seek judicial review of the governmental entity’s denial. The
governmental entity must prove justification for nondisclosure by a
preponderance of the evidence.
Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 864 (Tenn. 2016) (footnotes
omitted).
With regard to the inspection of public records, the pertinent section of the TPRA,
Tennessee Code Annotated § 10-7-503(a), provides:
(2)(A) All state, county and municipal records shall, at all times during
business hours . . . 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.
(B) The custodian of a public record or the custodian’s designee shall
promptly make available for inspection any public record not
specifically exempt from disclosure. In the event it is not practicable
for the record to be promptly available for inspection, the custodian
shall, within seven (7) business days:
(i) Make the public record requested available to the
requestor;
(ii) Deny the request in writing or by completing a records
request response form developed by the office of open
records counsel. The response shall include the basis
for the denial; or
(iii) Furnish the requester in writing, or by completing a
records request response form developed by the office
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of open records counsel, the time reasonably necessary
to produce the record or information.
(3) Failure to respond to the request as described in subdivision (a)(2)
shall constitute a denial and the person making the request shall have
the right to bring an action as provided in § 10-7-505.
The TPRA also provides a list of certain records that are confidential and not
subject to disclosure. See Tenn. Code Ann. § 10-7-504 (Supp. 2023); see also
Tennessean, 485 S.W.3d at 865 (detailing a list of statutory exceptions). Exceptions to
the TPRA’s disclosure requirements include, inter alia: (1) information related to school
security (subsection (p)(1)), (2) information concerning victims of criminal acts who are
minors (subsection (t)(1)), and (3) video taken by a law enforcement body camera that
depicts minors within a school (subsection (u)(1)). In addition, pursuant to the TPRA’s
general exception for records protected from disclosure by “state law,” see Tenn. Code
Ann. § 10-7-503(a)(2)(A), the Supreme Court has explained that governmental entities
are not required to disclose records related to a pending criminal investigation/action in
accordance with Tennessee Rule of Criminal Procedure 16. See Tennessean, 485 S.W.3d
at 871.
With respect to the procedure for obtaining access to public records, Tennessee
Code Annotated § 10-7-505 (2020) states in pertinent part:
a) Any citizen of Tennessee who shall request the right of personal
inspection of any state, county or municipal record as provided in §
10-7-503, and whose request has been in whole or in part denied by
the official and/or designee of the official or through any act or
regulation of any official or designee of any official, shall be entitled
to petition for access to any such record and to obtain judicial review
of the actions taken to deny the access.
(b) Such petition shall be filed in the chancery court or circuit court for
the county in which the county or municipal records sought are
situated, or in any other court of that county having equity
jurisdiction. In the case of records in the custody and control of any
state department, agency or instrumentality, such petition shall be
filed in the chancery court or circuit court of Davidson County; or in
the chancery court or circuit court for the county in which the state
records are situated if different from Davidson County, or in any
other court of that county having equity jurisdiction; or in the
chancery court or circuit court in the county of the petitioner’s
residence, or in any other court of that county having equity
jurisdiction. Upon filing of the petition, the court shall, upon request
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of the petitioning party, issue an order requiring the defendant or
respondent party or parties to immediately appear and show cause, if
they have any, why the petition should not be granted. A formal
written response to the petition shall not be required, and the
generally applicable periods of filing such response shall not apply
in the interest of expeditious hearings. The court may direct that the
records being sought be submitted under seal for review by the court
and no other party. The decision of the court on the petition shall
constitute a final judgment on the merits.
(c) 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.
(d) The court, in ruling upon the petition of any party proceeding
hereunder, shall render written findings of fact and conclusions of
law and shall be empowered to exercise full injunctive remedies and
relief to secure the purposes and intentions of this section, and this
section shall be broadly construed so as to give the fullest possible
public access to public records.
In this matter, Petitioners filed their petitions seeking access to the subject records
following Metro’s denial of their requests to review them. The petitions were
subsequently transferred to the trial court and consolidated into one action. Meanwhile,
Intervenors filed their motions to intervene, which the trial court granted.2
On appeal, Petitioners argue that allowing intervention was improper because the
TPRA’s provisions do not expressly allow for the intervention of a third party.
Petitioners assert that the language of the TPRA contemplates a bilateral procedure with
only two “sides”—the governmental entity that maintains custody of the records and the
party who seeks disclosure of the records. By contrast, Intervenors contend that the
TPRA’s provisions neither forbid intervention nor alter the Tennessee Rules of Civil
Procedure concerning intervention. We agree with Intervenors.
As Petitioners concede in their brief, this Court must seek to construe statutes “in a
way that avoids conflict and facilitates harmonious operation of the law.” Lee Med., 312
2
Petitioners argue in their appellate brief that Intervenors were improperly allowed to intervene with
regard to all of the Petitioners’ requests because all of the cases had not yet been consolidated at the time
Intervenors’ motions were filed. Inasmuch as Petitioners failed to raise this issue in their statement of the
issues, we determine that it has been waived. See Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012)
(“[A]n issue may be deemed waived when it is argued in the brief but is not designated as an issue in
accordance with Tenn. R. App. P. 27(a)(4).”).
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S.W.3d at 527. Of course, “rules governing practice and procedure in the trial and
appellate courts of Tennessee were promulgated by the General Assembly and the
Supreme Court . . . [and] have the force and effect of law.” Frye v. Blue Ridge
Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn. 2002) (quoting Crosslin v. Alsup,
594 S.W.2d 379, 380 (Tenn. 1980)). Moreover, “[w]e presume that the General
Assembly was aware of its prior enactments and knew the state of the law at the time it
passed the legislation.” Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695,
701 (Tenn. 2009). Accordingly, “courts will not construe statutes to change existing law
more than a statute itself declares or necessarily implies.” Winter v. Smith, 914 S.W.2d
527, 538 (Tenn. Ct. App. 1995).
As both Petitioners and Intervenors point out, the TPRA clearly provides for an
expedited hearing and a truncated procedure with regard to disputes concerning the
disclosure of public records. See Tenn. Code Ann. § 10-7-505; Moncier v. Harris, No.
E2016-00209-COA-R3-CV, 2018 WL 1640072, at *11 (Tenn. Ct. App. Apr. 5, 2018)
(“The Legislature clearly intended for the expeditious resolution of petitions under
section 10-7-505 and expressly removed time restraints that normally allow defendants
time to evaluate a case and prepare a defense.”). Therefore, relative to a typical pre-trial
discovery process, the Moncier Court concluded that “the plain language of the statute
precludes such a procedure.” See 2018 WL 1640072, at *11 (“[I]t would make no sense
to conclude that our General Assembly intended to allow a plaintiff . . . to conduct
document discovery in preparation for a show cause hearing [in a TPRA action].”).
With regard to intervention, however, the TPRA neither expressly declares nor
“necessarily implies” that intervention is disallowed. Instead, the TPRA is silent
concerning intervention. Presuming that the Legislature was aware of Tennessee Rule of
Civil Procedure 24 and its provisions concerning intervention, see Highwoods Properties,
297 S.W.3d at 701, and construing the TPRA so as not to change the state of the law
more than the statute declares or implies, see Winter, 914 S.W.2d at 538, we determine
that the Legislature did not intend to completely disregard all procedural rules when
enacting the TPRA. See, e.g., Tennessean, 485 S.W.3d at 870. In other words, the
implications of the TPRA concerning document discovery, as recognized in Moncier, see
2018 WL 1640072, at *11, do not lead to the conclusion that none of the procedural rules
would be applicable in a TPRA action.
Instead, we determine that the Legislature intended to provide an expeditious
procedure concerning the disclosure of public records and that Rule 24’s provisions
respecting intervention do not run counter to that purpose. As such, we conclude that the
trial court properly considered Intervenors’ requests for intervention in this TPRA action
pursuant to the requirements of Rule 24.
In further support of this conclusion, we observe that intervention has been
allowed in prior TPRA cases that have come before Tennessee’s appellate courts. See
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Tennessean, 485 S.W.3d at 859 (noting that the trial court had allowed the intervention of
a crime victim); Griffin v. City of Knoxville, 821 S.W.2d 921, 921 (Tenn. 1991) (noting
that the trial court had permitted the intervention of the deceased’s widow);
Public.Resource.Org v. Matthew Bender & Co., No. M2022-01260-COA-R3-CV, 2023
WL 7408939, at *1 (Tenn. Ct. App. Nov. 9, 2023) (noting that the trial court had allowed
the intervention of the Tennessee Code Commission). Although the intervention issue as
presented in this matter was not specifically raised in those cases on appeal, we find it
instructive that our Supreme Court considered the intervening party’s claim in
Tennessean without providing any indication that the Court found her to be an improper
party to the action. See 485 S.W.3d at 873-874. In fact, none of those authorities hinted
at a conclusion that the trial courts had erred by allowing intervention. We likewise
determine in this matter that the trial court did not err by concluding that the TPRA
allowed the intervention of third parties who are neither a record requester nor the
government custodian.
V. Standing and Subject Matter Jurisdiction
Petitioners claim that Intervenors lacked standing to intervene in this action
because the Legislature, in enacting the TPRA, created the cause of action and designated
who may file it: parties who are seeking the disclosure of public records. Petitioners
argue that because standing is conferred by the statute, it is “interwoven” with subject
matter jurisdiction and “becomes a jurisdictional prerequisite.” See Osborn v. Marr, 127
S.W.3d 737, 740 (Tenn. 2004). Petitioners thus assert that because Intervenors were not
seeking the disclosure of records, the trial court had no jurisdiction to consider their
petitions. By contrast, Intervenors contend that they maintained standing to intervene
because they possessed a “sufficiently personal stake in the outcome of the controversy to
warrant the exercise of the court’s power on [their] behalf.” See Shelby Cnty. Deputy
Sheriff’s Ass’n v. Gilless, 972 S.W.2d 683, 685 (Tenn. Ct. App. 1997).
Petitioners’ argument contains one fatal flaw—the TPRA actions at issue herein
were filed by parties seeking the disclosure of public records. Moreover, the statute
specifically provides that such actions “shall be filed in the chancery court or circuit court
for the county in which the county or municipal records sought are situated[.]” Tenn.
Code Ann. § 10-7-505(b). As such, the trial court clearly maintained subject matter
jurisdiction over this matter. The fact that Intervenors sought to intervene in the action
would not strip the court of its statutory grant of subject matter jurisdiction concerning
TPRA disputes.
Furthermore, we determine that Intervenors maintain standing in this matter. As
this Court has previously explained:
To establish constitutional standing in Tennessee courts, a plaintiff
must establish three elements:
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1) a distinct and palpable injury; that is, an injury that is not
conjectural, hypothetical, or predicated upon an interest that a
litigant shares in common with the general public; 2) a causal
connection between the alleged injury and the challenged
conduct; and 3) the injury must be capable of being redressed
by a favorable decision of the court.[3]
Fisher v. Hargett, 604 S.W.3d 381, 396 (Tenn. 2020). To determine
whether Plaintiffs have standing to bring this case, we must examine the
particular allegations of their complaint and evaluate whether they are
entitled to adjudicate the claims. Id.; Howe v. Haslam, No. M2013-01790-
COA-R3-CV, 2014 WL 5698877, at *6 (Tenn. Ct. App. Nov. 4, 2014)
(citing Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 768 (Tenn. Ct.
App. 2002)).
The question of whether a party has standing should not be confused
with the merits of the claim; accordingly, a weak claim does not equate to a
lack of standing. Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn.
Dep’t of Educ., 645 S.W.3d 141, 148-49 (Tenn. 2022). Tennessee courts’
standing analysis is instead directed towards determining “‘whether a party
has a sufficiently personal stake in a matter at issue to warrant a judicial
resolution of the dispute,’” barring those whose rights or interests have not
been affected from bringing suit. Metro. Gov’t of Nashville v. Bd. of
Zoning Appeals of Nashville, 477 S.W.3d 750, 755 (Tenn. 2015) (quoting
State v. Harrison, 270 S.W.3d 21, 27-28 (Tenn. 2008)).
Rutan-Ram v. Tenn. Dep’t of Children’s Servs., No. M2022-00998-COA-R3-CV, 2023
WL 5441029, at *7 (Tenn. Ct. App. Aug. 24, 2023).
As the trial court noted in its orders, Intervenors asserted that they would suffer a
distinct and palpable injury by the disclosure of the records sought and that their injury
was not predicated upon an interest that they share with the general public. In addition,
Intervenors also asserted that a causal connection existed between release of the records
and the injury they were in immediate danger of suffering, which injury could be
addressed by the trial court’s determination concerning disclosure. Accordingly,
Intervenors have demonstrated, based on the allegations contained in their pleadings, a
“sufficiently personal stake in a matter at issue to warrant a judicial resolution of the
3
The “injury” required in the first element has also been described as an “immediate danger.” See
Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001).
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dispute.” See id. We determine that Petitioners’ issue concerning standing and subject
matter jurisdiction is without merit.4
VI. Permissive Intervention
The trial court evaluated Intervenors’ motions to intervene pursuant to Tennessee
Rule of Civil Procedure 24.02, which provides:
Upon timely motion any person may be permitted to intervene in an action:
(1) when a statute confers a conditional right to intervene; or (2) when a
movant’s claim or defense and the main action have a question of law or
fact in common.
The trial court determined that Intervenors had demonstrated that they shared common
questions of law or fact with the parties and allowed their intervention. This Court
reviews such decision for an abuse of discretion. See Brown & Williamson Tobacco
Corp., 18 S.W.3d at 191.
Petitioners posit that Intervenors cannot share a common question of law or fact
with the parties, as contemplated by Rule 24.02, because Intervenors do not possess a
“claim” or a “defense” in the TPRA action. We find this argument unavailing. Metro,
the responding governmental entity with custody of the records at issue, asserted certain
defenses to the TPRA action based on the statutory exceptions found in Tennessee Code
Annotated § 10-7-504 and Tennessee Rule of Criminal Procedure 16. Intervenors then
filed briefs with the trial court detailing their positions concerning the potential disclosure
of the records in question, some of which align with Metro’s defenses.5 As such, we
conclude that the trial court properly determined that the “movant’s claim or defense and
the main action have a question of law or fact in common.” See Tenn. R. Civ. P. 24.02.
We find Petitioners’ argument that the trial court incorporated an erroneous legal
standard to be unavailing.
4
We acknowledge Petitioners’ postulate that Intervenors have filed what Petitioners refer to as a “reverse
public records suit” and that such an action has not been allowed pursuant to the federal Freedom of
Information Act (“FOIA”) and should not be allowed in a TPRA action. However, Petitioners have cited
no authority based in Tennessee law to support any of their assertions in this regard. Petitioners concede
that the TPRA is “distinct from FOIA and the open records law of other states.” See Schneider v. City of
Jackson, 226 S.W.3d 332, 343 (Tenn. 2007). This being the case, we find Petitioners’ arguments
predicated on federal law respecting FOIA to be unavailing.
5
Although Petitioners postulate that Intervenors failed to file a “pleading setting forth the claim or
defense for which intervention is sought,” as required by Tennessee Rule of Civil Procedure 24.03, our
review of the record demonstrates that Intervenors filed briefs detailing their positions with respect to the
records disclosure as directed by the trial court’s orders. These briefs clearly set forth Intervenors’ points
regarding their intervention in the TPRA action and comport with the “pleading” requirement of Rule
24.03.
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We find the Supreme Court’s opinion in Ballard v. Herzke, 924 S.W.2d 652(Tenn. 1996), instructive. In Ballard, the underlying lawsuit concerned claims of breach
of fiduciary duty, conspiracy, outrageous conduct, and other civil causes of action. Id. at
655. During the proceedings, the trial court imposed a protective order and placed certain
discovery responses filed by the defendant retirement community and its corporate owner
under seal. Id. The plaintiffs in the suit filed motions seeking to modify or dissolve the
protective order, and a Tennessee newspaper filed a motion to intervene, also requesting
that the trial court rescind the protective order. Id. at 656. The trial court allowed the
newspaper to intervene, and this Court granted an extraordinary appeal. Id. During that
appeal, this Court determined that the trial court had abused its discretion in allowing the
newspaper to intervene. Id. at 657.
The Supreme Court granted permission to appeal in Ballard and considered the
issue of whether the newspaper’s intervention was proper. Id. When analyzing the
intervention issue, the High Court explained:
Permissive intervention is governed by Tennessee Rule of Civil
Procedure 24.02, which provides in pertinent part as follows:
Upon timely application anyone may be permitted to
intervene in an action: (1) when a statute confers a
conditional right to intervene; or (2) when an applicant’s
claim or defense and the main action have a question of law
or fact in common. In exercising discretion the court shall
consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
If the would-be intervenor’s claim or defense contains a question of law or
fact that is also raised by the main action then the requirement of the rule
has been satisfied and the trial court is afforded discretion to permit
intervention.
***
[I]ntervention “is not dependent on, nor is it determined by, the status or
identification of the parties nor the nature of the dispute.” Moreover, the
question of intervention is collateral to, and does not have any bearing on,
the primary issue—modification of the protective order. What is necessary
is that the proposed intervenor demonstrate that its claims have “a question
of law or fact in common” with the main action.
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Here, as in all such cases, by virtue of the fact that the media entities
challenge the validity of the protective order entered in the main action,
they meet the requirement of Rule 24.02, that their claim have “a question
of law or fact in common” with the main action. Nonetheless, the interest
of the plaintiffs and the intervenors is not identical. The plaintiffs seek
access to enhance their ability to prepare for trial. They are not attempting
to gain access for public dissemination. Were the plaintiffs to settle this
case, their interest in modifying the protective order would end. By
contrast, the intervenors seek to gain access on behalf of the general public
in order to disseminate the information through the media. Therefore,
though the basic interest is the same, that of overturning the protective
order, the interests are not identical, and intervention is appropriate.
Where, as here, a common question of law or fact is established, the
decision to allow intervention is a matter entrusted to the trial court’s
discretion, and the decision should not be reversed by an appellate court
absent a showing of abuse of discretion.
Ballard, 924 S.W.2d at 657-58 (other internal citations omitted).
As the Ballard Court clarified, intervening parties can have “a question of law or
fact in common” with the main action despite the fact that the question may be collateral
to the primary issue in the case or that the status of the parties is not precisely the same.
See id; see also In re Estate of Thompson, 636 S.W.3d 1, 8 (Tenn. Ct. App. 2021). In the
case at bar, Intervenors raised various defenses or objections to the disclosure of the
subject records that aligned with the defenses raised by Metro in the main TPRA action. 6
As such, we must next examine whether the trial court’s discretion was abused when
granting intervention.
6
Petitioners argue that the various Tennessee victims’ rights laws (Art. I, § 35 of the Tennessee
Constitution; Tenn. Code Ann. §§ 40-38-101-119; and Tenn. Code Ann. § 40-38-301(a)) do not confer a
right to intervene and that “Intervenors seek to rewrite the TPRA to include a victims’ rights exception
that does not exist.” However, we do not need to address this argument because it is not determinative
herein. Intervenors have raised several defenses that align with the defenses promulgated by Metro,
including (1) the existence of an ongoing criminal investigation, (2) the TPRA exception concerning
school security information, and (3) the TPRA exception concerning information relating to crime victims
who are minors. As such, Intervenors have established the requisite “question of law or fact in common”
for the purposes of Rule 24.02 intervention, which is the determinative question on appeal. To the extent
that the trial court determined interpretation of the Tennessee victims’ rights laws to be significant to the
intervention issue, we note that this Court can affirm the trial court even if it reached the correct result for
a different reason. See Torres v. Bridgestone/Firestone N. Am. Tire, LLC, 498 S.W.3d 565, 577 (Tenn.
Ct. App. 2016); Biles v. Roby, No. W2016-02139-COA-R3-CV, 2017 WL 3447910, at *6, n.3 (Tenn. Ct.
App. Aug. 11, 2017).
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We reiterate that a court abuses its discretion “when it causes an injustice to the
party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.” Lee Med., 312 S.W.3d at 524. We find no such abuse of
discretion by the trial court herein. The trial court applied the correct legal standards, as
outlined above. Moreover, the trial court neither reached an illogical or unreasonable
decision nor based its decision on a clearly erroneous assessment of the evidence.
Accordingly, we determine that the trial court’s decision allowing Intervenors to
intervene in the instant action should be affirmed.
We acknowledge Petitioners’ argument that Intervenors’ interests would be
adequately represented by Metro in the TPRA action (an argument that seems to belie
their position that no common questions existed between Metro and Intervenors);
however, we do not find this argument persuasive. Although Metro did raise many of the
same defenses to the TPRA action as advanced by Intervenors, there can be no guarantee
that Metro would continue to oppose disclosure if the criminal investigation were to
conclude. As such, we determine that the trial court properly allowed interventions so
that Intervenors could represent their own interests in this action.
VII. Attorney’s Fees
Finally, Petitioners assert that they are entitled, pursuant to Tennessee Code
Annotated § 10-7-505(g), to recover their attorney’s fees incurred in obtaining public
records that have been willfully withheld. This statutory section provides:
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.
In this appeal, the only issues properly before this Court concern the trial court’s
grant of intervention to Intervenors—any issues concerning the disclosure of the sought
records had not yet been adjudicated at the time this appeal was filed and are not before
this Court. Despite this fact, Petitioners assert that “this Court should direct that upon
remand the Petitioners recover their reasonable attorney’s fees incurred on appeal if they
become entitled to such fees in the action below” (emphasis added). However, inasmuch
as Petitioners made the decision to file this appeal concerning intervention and were
unsuccessful in obtaining the relief they sought, we decline to provide the requested
directive to the trial court regarding an award of fees incurred in this appeal.
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VIII. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment allowing
intervention. Costs on appeal are assessed to the appellants, Clata Renee Brewer; James
Hammond; Tennessee Firearms Association, Inc.; Michael P. Leahy; Star News Digital
Media, Inc.; The Tennessean; Rachel Wegner; and Todd Gardenhire. We remand this
matter to the trial court for further proceedings.
s/Thomas R. Frierson, II
________________________________
THOMAS R. FRIERSON, II, JUDGE
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