John P. Konvalinka initiated a case against the Chattanooga-Hamilton County Hospital Authority, seeking the disclosure of public documents related to investigations of alleged false claims submitted to Medicare and Medicaid. This case marked the second appeal concerning the Hospital's refusal to disclose certain records. In the first appeal, the court determined that the requested documents were not exempt from disclosure under state law but remanded the case to assess federal law exemptions. Upon remand, the trial court ruled that the Hospital's new state law defenses were outside the remand's scope and concluded that federal law also did not protect the documents from disclosure. Consequently, the court ordered the Hospital to provide the documents, leading to the Hospital's appeal. The appellate court affirmed the trial court's judgment. The specific records requested by Konvalinka included compliance reports and minutes from the Compliance Committee meetings over designated periods since a 2005 settlement between the Hospital and federal authorities.
Request No. 17 and Request No. 41 seek the same documents, as acknowledged by Petitioner in his appeal. After the Hospital denied access to three groups of requested documents, Petitioner filed a Petition for Access to Public Records with the Trial Court, arguing that the Hospital lacked a valid basis for the denial. He requested a show-cause order for the Hospital to justify its refusal and sought an order for document production along with attorney fees. On May 7, 2008, the Trial Court ordered the Hospital to appear for a hearing on May 22, 2008. The hearing was later rescheduled to allow the Hospital to present its case regarding exemptions under the Tennessee Public Records Act and the Tennessee Open Records Law. During the hearing, the Hospital sought to file a post-hearing memorandum and subsequently filed a “Motion for Protective Order,” claiming the documents were exempt from disclosure under specific provisions of the Tennessee Open Records Act and the Federal Freedom of Information Act. The Trial Court sided with the Hospital on these state law arguments.
The Hospital had previously entered into a Corporate Integrity Agreement (CIA) and a Settlement Agreement with the Office of Inspector General (OIG) and the State of Tennessee, which mandated increased internal scrutiny, detailed reporting of investigations, and notification of any legal proceedings involving allegations of misconduct. The CIA required the establishment of a Compliance Committee responsible for monitoring adherence to the CIA, alongside a Disclosure Program that ensured employee anonymity when reporting compliance issues. The Code of Conduct established by the CIA emphasized the obligation for all personnel to report suspected violations while maintaining confidentiality and protecting against retaliation.
Anonymous and confidential reports received via the Disclosure Program are submitted to the Compliance Officer, who must investigate them and maintain a log detailing the reports, their internal review statuses, and any corrective actions taken. Erlanger is required under the Corporate Integrity Agreement (CIA) to submit annual compliance activity reports to the Office of Inspector General (OIG), which must include summaries of potential legal violations, corrective actions, and ongoing investigations.
Tenn. Code Ann. 10-7-503(a) mandates that state records be open for public inspection, with certain exceptions, notably for investigative records of the OIG, which are confidential and only disclosed under a court order or subpoena. The Hospital claims this confidentiality applies to their records generated under the CIA in relation to ongoing investigations with the OIG. However, the Petitioner contends that the Hospital fails to demonstrate its status as an agent of the OIG to warrant confidentiality.
The trial court sided with the Hospital, denying the Petitioner access to the requested documents. On appeal in Konvalinka I, the Hospital reiterated that Tenn. Code Ann. 10-7-504 (a)(2)(A) protects their records from disclosure, and even if that statute did not apply, they argued protections exist under other state and federal laws. The court disagreed with the Hospital concerning the state statute, asserting that it applies only to the state OIG and not the federal OIG involved in the CIA. Consequently, the appeal court reversed the trial court's decision regarding the applicability of the state statute.
Records held by the Tennessee Attorney General's office may be exempt from public disclosure under Tenn. Code Ann. 10-7-504 (a)(5)(A) if they pertain to pending or contemplated legal proceedings and are confidential or privileged. However, the Hospital acknowledges that the Attorney General does not have physical possession of the requested documents, and the statute requires actual physical possession for the exemption to apply. Consequently, this exception does not apply in this case.
Additionally, although the Attorney General was involved, the Corporate Integrity Agreement was developed by the federal Office of Inspector General (OIG), which can classify certain documents as confidential under the Freedom of Information Act and Department of Health and Human Services regulations. Thus, federal law may prohibit disclosure regardless of state law exceptions. The Hospital contends that the documents are protected from disclosure under federal statutes and regulations, but the Trial Court did not assess this issue due to its prior incorrect ruling.
The case is remanded to the Trial Court to evaluate whether any parts of the requested documents are confidential under federal law. The Trial Court previously directed the Hospital to produce the documents with necessary redactions for the identity of report-makers. On November 20, 2009, the Hospital introduced additional state law grounds for confidentiality, including the Tennessee Peer Review Law, the Tennessee Uniform Trade Secrets Act, and various privileges such as Deliberative Process, Self-Evaluative, Attorney-Client, and Work Product Doctrine.
On November 20, 2009, the Hospital filed a Renewed Motion for Protective Order and Amended Response to Motion to Compel, seeking to invoke new state law defenses related to its Petition for Access to Public Records. In response, the Petitioner argued on November 25, 2009, that the Court of Appeals had remanded the case solely for determining if federal law barred the disclosure of documents. During a hearing on December 1, 2009, the Court sided with the Petitioner, excluding witness testimony based on state law claims but allowing the Hospital to depose those witnesses outside the Court’s presence for potential appeal use. The hearing continued to permit the Hospital to present its federal law defenses, including testimony from Hospital executives regarding the Corporate Integrity Agreement (CIA) with the federal Office of Inspector General (OIG). Following the hearing, the Court took the matter under advisement. On December 22, 2009, the Hospital filed a Motion for Reconsideration concerning its state law arguments, which the Petitioner opposed on January 8, 2010, citing the remand's limited scope. The Court noted that the state law claims in the Hospital’s Renewed Motion were raised significantly after the Court of Appeals' mandate and after the lawsuit commenced. Tennessee law (Tenn. Code Ann. 10-7-505(b)) outlines procedures for judicial review of public records access denials, emphasizing prompt hearings and the ability for the Court to review records under seal. The Court found that all grounds for denying access should be addressed at the show cause hearing, leading to the denial of the Hospital's Motion for Reconsideration. The Court of Appeals indicated that the OIG could classify certain CIA-related documents as confidential, potentially preventing their disclosure under federal law, even if state law allowed it. However, the Hospital's brief regarding the CIA's confidentiality obligations did not explicitly state that the disclosures themselves must be treated as confidential.
The Court mandates that the CIA requires the Hospital to implement a system to protect the anonymity of individuals reporting alleged violations, but it does not necessitate confidentiality of the reports themselves. The CIA allows the Hospital to classify certain information as confidential for the OIG, but Erlanger must specifically identify any information it claims as trade secrets or confidential under FOIA, refraining from labeling non-exempt information as such. Evidence shows the Hospital did not designate any OIG documents as confidential until after the litigation commenced, which undermines its confidentiality claims. The Hospital relies on a precedent from Hersh v. U.S. Dept. of Health and Human Services, asserting that federal law prevents the disclosure of information generated under the CIA; however, it failed to identify any documents to the OIG as exempt under FOIA. The CIA mandates the Hospital to establish a "disclosure program" to protect the identities of reporters and maintain a disclosure log available to the OIG. Any identifying information must be redacted in response to the petitioner's request, as failure to do so could violate the CIA terms. The Hospital has not proven any additional federal grounds to withhold the requested documents and has filed an appeal. The appeal raises four key issues: (1) whether the trial court correctly declined to consider new state law defenses, (2) whether the court erred in ruling the records were not confidential under federal law, (3) whether the court wrongly admitted the Hospital's expert testimony regarding confidentiality, and (4) whether it erred in denying the petitioner’s attorney's fees. The determination of whether the Court's judgment in Konvalinka I bars the Hospital from introducing new state defenses is a legal question subject to de novo review, similar to the application of state and federal statutes concerning document disclosure exemptions.
The trial court's decision to restrict the Hospital from asserting new state law defenses on remand was upheld, focusing solely on whether federal law justified withholding the requested documents. The Hospital contended that the lack of explicit limitation on the issue allowed for the introduction of previously unasserted defenses. It referenced Crafton v. Van den Bosch to support its position; however, the court clarified that Crafton, which involved a malpractice suit, is not analogous to public records cases. In Crafton, the attorney successfully presented a statute of limitations defense on remand because it was not addressed in the initial appeal. The court emphasized that public records requests are governed by specific legislative requirements that disallow piecemeal defenses. Under Tennessee law, the burden lies with the opposing party to demonstrate justification for nondisclosure, and the trial court is required to mandate a response from the party resisting document production. These statutory provisions highlight the differences in procedural treatment between summary judgment motions and public records petitions, reinforcing the necessity of adhering to established legal frameworks in public document cases.
The statute allows a petition opponent to present defenses without needing to file an answer, with the court's decision serving as a final judgment on the merits. Courts are mandated to interpret the statute broadly to maximize public access to records. Unlike summary judgments, which can be based on singular missing elements or defenses, judgments regarding records requests must consider all defenses the opposing party may have. The Hospital acknowledges that a trial court must adhere to appellate mandates but attempts to limit this by claiming that remand allows consideration of issues outside the mandate's scope. The court clarifies that the Hospital's new defenses were within the scope of prior rulings and thus could not be raised on remand, as the prior judgment addressed all justifications for non-disclosure.
The Hospital's argument that new evidence negates the mandate's restrictions is rejected; the court finds that the Hospital merely expanded its claims of confidentiality rather than introducing genuinely new evidence. Consequently, the trial court's rejection of the Hospital's additional justifications for non-disclosure is upheld.
Regarding the trial court's determination on federal law, it found that while the Hospital demonstrated federal law protects the identities of those making disclosures, it failed to prove that the content of the disclosures is confidential under federal statutes or regulations. The Corporate Integrity Agreement (CIA), which governs the Hospital's relationship with the federal government and was signed under the threat of exclusion from Medicare and Medicaid, does not provide a basis for confidentiality of the documents in question. The CIA's written terms represent the complete agreement between the Hospital and the Office of Inspector General (OIG).
The disclosure program, Compliance Committee, Compliance Officer, and associated Documents stem from the Corporate Integrity Agreement (CIA). The Hospital's claim for federal protection of these Documents hinges on the CIA's terms, which do not support the need for extensive secrecy. The term "confidential" appears only three times in the 39-page CIA. The first two instances relate to the Hospital's obligation to create a code of conduct allowing individuals to report illegal conduct while ensuring nonretaliation and confidentiality. The third instance allows the Hospital to label documents as "trade secrets" or "confidential" when submitted to the Office of Inspector General (OIG), obligating the OIG to notify the Hospital before releasing such documents.
The trial court found that the Hospital failed to designate any Documents as confidential before the Petitioner requested them, undermining its claim for confidentiality under federal law. The Hospital cited the case of Hersh v. U.S. Department of Health and Human Services, arguing that Documents should be considered confidential under the Freedom of Information Act (FOIA) if their disclosure would hinder the government's ability to obtain information in the future. However, a key distinction exists between Hersh and the current case: in Hersh, the hospital notified the OIG that the submitted documents were confidential, whereas Erlanger did not make such designations prior to the request. The CIA explicitly requires that documents be marked as confidential at submission to qualify for FOIA protections, a condition not met in this instance.
The Hospital's representative acknowledged failing to mark any documents submitted to the OIG as confidential until after the Petitioner filed his petition, indicating this was not an inadvertent error. The representative also testified that claims of privilege could be asserted before disclosure to the OIG, contrary to the CIA's language. The trial court differentiated this case from Hersh and concluded that the outcome would not deter hospitals nationwide, as they can avoid similar results by properly asserting confidentiality claims upon submission. The court determined that federal law does not protect the documents from disclosure.
The Petitioner contested the admission of attorney Howard Young's testimony as offering inadmissible legal opinions, but the trial court ruled in the Petitioner’s favor despite this, affirming that the documents are not privileged, rendering any error harmless.
Additionally, the Petitioner questioned the trial court's refusal to award attorney's fees and costs under Tenn. Code Ann. 10-7-505(g), which allows for fees against a governmental entity that willfully refuses to disclose public records. The court’s discretion in awarding fees was reviewed for abuse, and it was noted that not all wrongful withholding justifies such an award, especially if the entity had a legitimate basis for its actions. The court found no abuse of discretion in denying the fee request.
The trial court's judgment is affirmed, with costs on appeal assigned to the Chattanooga-Hamilton County Hospital Authority, and the case is remanded for further proceedings as necessary.
