04/05/2018 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE December 13, 2016 Session

HERBERT S. MONCIER v. NINA HARRIS, ET AL.

Appeal from the Chancery Court for Knox County No. 190527-2 Clarence E. Pridemore, Jr., Chancellor ___________________________________

No. E2016-00209-COA-R3-CV ___________________________________

This appeal involves a request for access to examine records under Tennessee Code Annotated section 10-7-505, in which the plaintiff sought the release of civil forfeiture documents from the Tennessee Department of Safety and Homeland Security. The trial court held that the plaintiff did not show sufficient cause for release of the sought-after documents in a non-redacted format. Upon our previous review, we found the issue to be moot owing to the legislative enactment of 2016 Tenn. Pub. Acts, chapter 722, § 5. Upon the plaintiff’s appeal, the Supreme Court remanded the case for our reconsideration in light of the legislative enactment of 2017 Tenn. Pub. Acts, chapter 113, § 1, which amended the Tennessee Public Records Act. Upon our review, we affirm the judgment of trial court.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.

Herbert S. Moncier, Knoxville, Tennessee, appellant pro se.

Herbert H. Slatery, III, Attorney General & Reporter, Andree S. Blumstein, Solicitor General, and Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, for the appellees, Nina Harris, Joseph Bartlett, and William Gibbons.

OPINION

I. BACKGROUND

On July 20, 2015, Herbert S. Moncier (“Attorney”) filed an official request with the Tennessee Department of Safety and Homeland Security (“TDOSHS”), requesting to inspect

each case file for which a forfeiture warrant had been received by the Knoxville office of the department’s Legal Division since January 1, 2015. The purpose of Attorney’s request was to solicit prospective clients.

Civil forfeiture proceedings in this state are governed by the provisions contained in Tennessee Code Annotated sections 40-33-201 to -215. The seizing officer is required to prepare and deliver a receipt titled “notice of seizure” to the person found in possession of the property that is seized. The notice of seizure contains the following information:

(1) A general description of the property seized and, if the property is money, the amount seized;

(2) The date the property was seized and the date the notice of seizure was given to the person in possession of the seized property;

(3) The vehicle identification number (VIN) if the property seized is a motor vehicle;

(4) The reason the seizing officer believes the property is subject to seizure and forfeiture;

(5) The procedure by which recovery of the property may be sought, including any time periods during which a claim for recovery must be submitted; and

(6) The consequences that will attach if no claim for recovery is filed within the applicable time period.

Tenn. Code Ann. § 40-33-203. The address of the person whose property is seized is also included.

The seizing officer must apply for a forfeiture warrant within five working days following the seizure. Upon issuance of a forfeiture warrant, the officer is required to send the warrant, a copy of the affidavit in support of the warrant, and a copy of the notice of seizure within seven business days to the applicable agency. Tenn. Code Ann. §40-33-204. The statute provides that the “seizing agency shall maintain a copy of the notice of seizure for all property seized . . . and the notices and receipts shall be public records.” Id. (emphasis added). Any person asserting a claim to property seized pursuant to the civil forfeiture provisions may file, within thirty days of being notified that a forfeiture warrant has issued, a written claim with TDOSHS relating the person’s interest in the seized property and requesting a hearing. Tenn. Code Ann. § 40-33-206(a).

Attorney’s record request was submitted under Tennessee Code Annotated section 10-7- 503, Tennessee’s Public Records Act (“TPRA”). TPRA “has a noble and worthwhile purpose by providing a tool to hold government officials and agencies accountable to the citizens of Tennessee through oversight in government activities.” Tennessean v. Metro Gov’t of Nashville, 485 S.W.3d 857, 864 (Tenn. 2016). To facilitate access to records, TPRA requires that:

[A]ll 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.

Tenn. Code Ann. § 10-7-503(a)(2)(A) (emphasis added). Attorney observes that Tennessee Code Annotated section 40-33-204(g) holds that notices of seizures are public records.^[1]

The Tennessee Supreme Court has characterized TPRA as “an all encompassing legislative attempt to cover all printed matter created or received by government in its official capacity.” Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn. 1991) (citing Bd. of Educ. V. Memphis Publ’g Co., 585 S.W.2d 629, 631 (Tenn. Ct. App. 1979)). TPRA requires the courts to construe the statute broadly “so as to give the fullest possible public access to public records.” Tenn. Code Ann. § 10-7-505(d). As noted by our Supreme Court: “There is a presumption of openness for government records. Custodians of the records are directed to promptly provide for inspection any public record not exempt from disclosure.” Tennessean, 485 S.W.3d at 864 (citations omitted).

TDOSHS informed Attorney that there were approximately 1,790 files responsive to his request and that the records would be provided to him in installments. On August 10, 2015, the first installment was made available. The following day, Attorney reviewed the first set of 50 files. Six days later, Attorney expanded his prior records request to include case management sheets maintained by TDOSHS for each file. The department informed Attorney that the case management sheets had been included in the first installment of records and would continue to be provided in all future installments. TDOSHS explained to Attorney that pursuant to both the Tennessee Uniform Motor Vehicle Record Disclosure Act (“UMVRDA”), codified at Tennessee Code Annotated sections 55-25-101 to -112, and the federal Driver Privacy Protection Act (“DPPA”), 18 United States Code sections 2721 to 2725, it was required to redact personal information, such as addresses, obtained from motor vehicle records. A “motor vehicle record” means any records that pertain to a motor vehicle operator’s or driver’s license or permit, motor vehicle registration, motor vehicle title, or identification document issued by a Department of Motor Vehicles (“DMV”), or other state or local agency authorized to issue any of such forms of credentials.” 1996 Tenn. Pub. Acts, ch. 745, §3(d), H.B. No. 2622. “Personal information” means information that identifies a person, including address and telephone number. Tenn. Code Ann. § 55-25-103(7). Specifically, pursuant to Tennessee Code Annotated section 55-25-104, TDOSHS, and “any officer, employee, agent or contractor thereof, shall not disclose personal information about any person obtained “in connection with a motor vehicle record.”

Accordingly, any addresses of persons that had been obtained from or in connection with a motor vehicle record were confidential and were redacted from the documents provided for Attorney’s inspection. TDOSHS asserts that its redaction of personal information, including addresses, from notices of seizure, affidavits, and warrants received by its Legal Division was consistent with TDOSHS’s practice and had been previously communicated to Attorney in 2011.

TPRA allows a person whose request for public records is denied to file suit and seek judicial review of the governmental entity’s denial. Tenn. Code Ann. § 10-7-505(b). On October 23, 2015, Attorney filed a “Complaint for Access to Examine Records” against Bill Gibbons, the Commissioner of TDOSHS, as well as Joseph Bartlett, the Supervisor of TDOSHS’s Legal Division-Eastern Section, along with Nina Harris, Staff Attorney (“Staff Attorney”). In the complaint, Attorney alleged that Tennessee Code Annotated section 55-25- 104 violated article I, section 192 and article XI, section 163 of the Tennessee Constitution and, therefore, could not be relied upon in redacting personal information from the records in question. Attorney further asserted that TDOSHS’s redaction of personal addresses was nothing but a pretext for denying him access to public records under Tennessee Code Annotated section 10-7-503(a)(2)(A). Shortly thereafter, the trial court ordered TDOSHS to a hearing set for November 17, 2015, to show cause why Attorney’s petition should not be granted.

Attorney subsequently issued a subpoena to Staff Attorney to produce documents and appear at the show cause hearing. The subpoena, which does not appear in the record, purportedly sought production of a number of documents from TDOSHS, including internal manuals, memoranda, and operating procedures, as well as any and all communications with all persons concerning Attorney’s records request, along with the boxes of the redacted records that had been produced for inspection on August 11, 2015. Staff Attorney filed a motion to quash the subpoena, arguing that the discovery rules set forth in the Tennessee Rules of Civil Procedure are not applicable to show cause hearings pursuant to Tennessee Code Annotated section 10-7-505, and that the procedure for judicial review provided for in the statute does not authorize a plaintiff to conduct document discovery or subpoena witnesses for the show cause hearing. TDOSHS’s response asserted, inter alia, that (1) the redactions were mandated by the UMVRDA, the DPPA, and by relevant state and Supreme Court precedent; and (2) that neither the UMVRDA nor the DPPA violates the Tennessee Constitution because the right to access public records is not a constitutional right and may be limited by the Legislature. Staff Attorney did not appear at the hearing, which proceeded on proffers made by Attorney and TDOSHS. At the conclusion of the hearing, the court granted Staff Attorney’s motion to quash.

On November 30, 2015, subsequent to the hearing, Attorney filed a motion for leave to amend his petition to conform it “to information proffered to the Court by the parties.” On December 7, 2015, he filed two declarations in “Opposition to Respondents’ Proposed Findings of Fact and Conclusions of Law,” in which, according to the defendants, Attorney sought to present evidence that he had not presented at the show cause hearing. The following week, Attorney filed “Supplemental Pleadings For Proposed Findings of Fact and Conclusions of Law,” which, according to the defendants, again sought to present evidence that Attorney had not presented at the hearing and served to supplement his petition. The defendants responded that they had no objection to the amendment of the petition to conform the issues pled to the evidence presented at the hearing. However, they otherwise objected to Attorney’s motion.

On January 15, 2016, the trial court denied the motion to amend. Twelve days later, the court ruled that the defendants had met their burden of showing cause for not releasing the redacted information “in that there is no discernible way to determine if any of the addresses were or were not obtained from the Motor Vehicle Database” and the release of such information would be in violation of the UMVRDA and the federal DPPA. The court found that because the right to inspect records under the TPRA was a statutorily created right, the Legislature could limit that right and that such limitation would not violate article I, section 19 of the Tennessee Constitution. Accordingly, the trial court dismissed Attorney’s petition in its entirety and with prejudice.

Attorney timely filed this appeal.

II. ISSUES

We have consolidated the issues on appeal as follows:

1. Whether the trial court correctly held that the UMVRDA does not violate article I, section 19 of the Tennessee Constitution?

2. Whether the trial court properly ruled regarding Attorney’s record request?

3. Whether the trial court abused its discretion in granting Staff Attorney’s motion to quash Attorney’s subpoena and in denying Attorney’s post-hearing motion for leave to amend his petition?

III. STANDARD OF REVIEW

The trial court’s findings of fact were based on documentary evidence, consisting of the parties’ declarations and exhibits. In the absence of live witness testimony, an appellate court is able to assess credibility and weigh the evidence as well as the trial court. Kelly v. Kelly, 445 S.W.3d 685, 693 (Tenn. 2014). As a result, the trial court’s findings of fact are not entitled to a presumption of correctness. Id.; cf. Tenn. R. App. P. 13(d) (appellate courts normally accord trial court’s findings of fact a presumption of correctness unless record preponderates otherwise).

When interpreting statutes, we must determine and give effect to the Legislature’s intent in adopting the statute without adding or taking away from its intended meaning or application. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn. 2003) (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)). The trial court’s interpretation of TPRA and other statutes involves questions of law, which we review de novo, with no presumption of correctness afforded to the trial court’s conclusions. Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013).

Attorney also appeals the trial court’s quashing of his subpoena to Staff Attorney and the denial of his motion for leave to file an amended complaint. “The decision of the trial court in discovery matters will not be reversed on appeal unless a clear abuse of discretion is demonstrated.” Artist Building Partners v. Auto-Owners Mut. Ins. Co., 435 S.W.3d 202, 220 (Tenn. Ct. App. 2013) (quoting Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992)). This court must examine whether the trial court “(1) applie[d] an incorrect legal standard, (2) reache[d] an illogical or unreasonable decision, or (3) base[d] its decision on a clearly erroneous assessment of the evidence.” State v. Mangrum, 403 S.W.3d 152, 166 (Tenn. 2013). Similarly, the denial of a motion to amend the pleadings lies within the trial court’s sound discretion and will not be reversed absent a showing of abuse of discretion. Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 741 (Tenn. 2013).

IV. DISCUSSION

A.

After the trial court entered its judgment, the Legislature enacted Public Chapter 722, which became effective on July 1, 2016. Among other things, that act contained a new exception to TPRA, codified as Tennessee Code Annotated section 10-7-504(a)(28), which provided in pertinent part as follows:

(A) No governmental entity shall publicly disclose personally identifying information of any citizen of the state unless:

(i) Permission is given by the citizen; (ii) Distribution is authorized under state and federal law; or (iii) Distribution is made:

(a) To a consumer credit reporting agency as defined by the federal Fair Credit Report Act (15 U.S.C. §§ 1681, et seq.);

(b) To a financial institution subject to the privacy provisions of the federal Gramm Leach Bliley Act (15 U.S.C. § 6802); or

(c) To a financial institution subject to the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 (31 U.S. §§ 5311, et seq.).

...

(C) For purposes of this subdivision (28), “personally identifying information” means:

(i) Social security numbers;

(ii) Official state or government issued driver licenses or identification numbers;

(iii) Alien registration numbers or passport numbers;

(iv) Employer or taxpayer identification numbers;

(v) Unique biometric data, such as fingerprints, voice prints, retina or iris images, or other unique physical representations; or

(vi) Unique electronic identification numbers, addresses, routing codes, or other personal identifying data which enables an individual to obtain merchandise or service or to otherwise financially encumber the legitimate possessor of the identifying data.

2016 Tenn. Pub. Acts, ch. 722, § 5 (emphasis added). Pursuant to this statutory provision, “addresses . . . or other personal identifying data” were confidential and not subject to disclosure under TPRA, regardless of whether the address was obtained from or in connection with a motor vehicle record or from another source.

In 2017, however, the Legislature amended 10-7-504(a)(29)(C)(vi) to delete “addresses” from the definition of “personally identifying information.” As the Tennessee General Assembly has now declared that, as a matter of public policy, addresses of citizens contained in governmental records are subject to disclosure under TPRA, we must address whether the trial court properly ruled that the federal DPPA and the state UMVRDA provide an exception to TPRA and that the defendants were justified in redacting the addresses from the requested records in compliance with these two laws.

B.

Despite the fact that TPRA is to be construed broadly in favor of access to public records, a person does not have a constitutional right to examine such records. Abernathy v. Whitley, 838 S.W.2d 211, 214 (Tenn. Ct. App. 1992). It is within the power of the Legislature to create, limit, or abolish rights of access to public records. Id.; see also Friedmann v. Corrections Corp. of America, 310 S.W.3d 366, 378 (Tenn. Ct. App. 2009) (“[T]he General Assembly has reserved to itself the right to exempt documents from the coverage of the Public Records Act.”). The exceptions to TPRA recognized by state law reflect the Legislature’s judgment that “the reasons not to disclose a record outweigh the policy favoring disclosure.” Allen v. Day, 213 S.W.3d 244, 261 (Tenn. Ct. App. 2006) (quoting Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 204)). These exceptions “are not subsumed by the admonition to interpret the Act broadly;” accordingly, “courts are not free to apply a ‘broad’ interpretation that disregards specific statutory language” setting forth such exceptions. Id.

The trial court, relying on Abernathy, correctly ruled that the limitation on the right to access contained in the UMVRDA did not violate the Tennessee Constitution. The decision in Abernathy, in which the court was addressing a facial as well as an as-applied challenge, reviewed the issue whether a statutorily created exception to TPRA for a state agency’s reports violated article I, section 19 of the Tennessee Constitution:

Plaintiff’s first issue is: Whether Tennessee Code Annotated § 10- 7-504(a)(2), which exempts investigative records of the Tennessee Bureau of Investigation from disclosure and inspection pursuant to the Public Records Act, constitutes a prohibited restraint upon the right of every person to examine the proceedings of any branch or office of the government contrary to Article I, § 19 of the Constitution of the State of Tennessee or is contrary to the “Law of the Land” clause of Article I, § 8 thereof.

Id. at 212. We rejected this argument, noting that there is no constitutional right to examine public records. Rather, the right has been conferred on all members of the public by statute enacted by the Legislature, and that body “has the power to create, limit or abolish a right which is not conferred by the Constitution.” Id. at 214. Other state appellate decisions affirm the holding in Abernathy that there is no constitutional right of access to public records under either the federal or the state constitutions. See State ex rel. Johnson v. Gwyn, No. M2013-02640- COA-R3-CV, 2015 WL 7061327, at *6-8 (Tenn. Ct. App. Nov. 10, 2015); see also State v. Cobbins, No. E2013-02726-CCA-WR-CO, slip op. at 13-19 (Tenn. Crim. App. Feb. ^[4], 2015) (quoted in relevant part in Johnson).

In Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001), the plaintiffs argued that the specific right preserved in article I, section 19 required that all sessions of the Legislature be open to the public. This court rejected such a broad interpretation:

The right preserved in Article I, Section 19 is the right of the people to use the printing press to examine the proceedings of the Legislature or any other branch of government. If the section means that legislative sessions have to be open to the press, then cabinet meetings and Supreme Court conferences would also be open. We know of no authority for that position.

Article IX, Section 7 of the 1790 Pennsylvania Constitution contains language nearly identical to that contained in Article I, Section 19 of our Constitution. None of the cases interpreting the Pennsylvania Constitution suggests that it required open meetings of the Legislature. More specifically, the cases suggest that the section was a guarantee of free speech and the right to write or print on any subject. In Respublica v. Joseph Dennie, 4 Yeates 267 (Pa. 1805), the Pennsylvania Supreme Court made this comment about the meaning of Article IX, Section 7:

“Thus it is evident, that legislative acts, or of any branch of the government, are open to public discussion; and every citizen may freely speak, write or print on any subject, but is accountable for the abuse of that privilege. There shall be no licenses of the press. Publish as you please in the first instance without control; but you are answerable both to the community and the individual, if you proceed to unwarrantable lengths.”

We are confident that Article I, Section 19 of our Constitution restricts prior restraints on the publication and dissemination of materials critical of governmental actions. It does not provide a right of access to all legislative meetings.

Id. at 772 (emphasis added concluding paragraph). Thus, as properly argued by the defendants, article I, section 19 does not provide for an unrestricted right of access by the public to examine the proceedings of the Legislature or of any other branch of government. The trial court correctly ruled that redaction of the addresses from the requested records pursuant to the UMVRDA did not violate article I, section 19 of the Constitution of the State of Tennessee.

C.

The federal DPPA, 18 U.S.C. §§ 2721 to 2725, prohibits a state from disclosing personal information (including a person’s address) obtained in connection with a motor vehicle record. See 18 U.S.C. §§ 2721(a)(1); 2725(3).4 The DPPA was enacted in 1994 to “limit the release of an individual’s personal information contained in his [or her] driver’s license record to those who had a legitimate and lawful need for the information.” Kehoe v. Fidelity Fed. Bank & Trust, 421 F.3d 1209, 1210 (11th Cir. 2005). Congress also found that many states were selling personal information collected to individuals and businesses. See, e.g., 139 Cong. Rec. 29466, 29469 (1993); 140 Cong. Rec. 7929 (1994) (remarks of Rep. Goss). As explained by the United States Supreme Court:

The DPPA establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s consent. The DPPA generally prohibits any state DMV, or officer, employee, or contractor thereof, from “knowingly disclos[ing] or otherwise mak[ing] available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record.” 18 U.S.C. § 2721(a). The DPPA defines “personal information” as any information “that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical disability information,” but not including “information on vehicular accidents, driving violations, and driver’s status.” § 2725(3). A “motor vehicle record” is defined as “any record that pertains to a motor vehicle operator’s permit, motor vehicle title,