Brewer v. Metro. Gov't of Nashville & Davidson Cnty.

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CLATA RENEE BREWER ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL.

No. M2023-00788-COA-R3-CV

Court of Appeals of Tennessee, Nashville

November 30, 2023

Session October 16, 2023

Appeal from the Chancery Court for Davidson County No. 23-0538-III I'Ashea L. Myles, Chancellor

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

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.

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.

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and KRISTI M. DAVIS, JJ., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

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.

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 coconspirators.

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.

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...