Can a Tennessee city council use its charter subpoena power to get investigative records from the Tennessee Bureau of Investigation?

Subject

Opinion No. 15-65, Authority of City Council to Subpoena TBI Investigative Records, August 25, 2015

Plain-English summary

Tennessee Code Annotated § 10-7-504(a)(2)(A) makes Tennessee Bureau of Investigation investigative records confidential and provides that they may be disclosed to the public "only in compliance with a subpoena or an order of a court of record." Representative Parkinson asked whether a city council with subpoena power under its own charter could use that power to compel production of TBI investigative records.

The AG said no. The disagreement boiled down to punctuation. The statute's "of a court of record" phrase, in context, modifies both "subpoena" and "order." Why? Because there is no comma separating "subpoena" from the rest of the sentence. Without that comma, the conjunction "or" links "subpoena" and "order" together so that the modifying phrase applies to both. So the only valid subpoenas for TBI investigative records are those issued by a court of record. A city council is not a court of record, so its subpoena does not satisfy the statute.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "court of record"?

In Tennessee, courts of record include the Supreme Court, Court of Appeals, Court of Criminal Appeals, Chancery and Circuit Courts, Criminal Courts, and Probate Courts, among others. These are courts whose proceedings are systematically recorded and preserved. City councils, county commissions, and similar legislative bodies are not courts of record.

Could a city council still investigate matters using TBI cooperation?

The opinion does not address voluntary disclosure or law enforcement-to-law enforcement sharing of TBI information. It is specifically about subpoena power. If a city wants TBI investigative records, it would need either a court of record's subpoena or order, or voluntary disclosure under another statutory exception.

Why does Tennessee restrict TBI records so tightly?

To protect the integrity of investigations, witnesses, and ongoing prosecutions, and to preserve the confidentiality of information gathered through the TBI's law enforcement role.

How does punctuation make such a big legal difference?

The AG cites the U.S. Supreme Court's statement in U.S. Nat. Bank of Oregon that the "meaning of a statute will typically heed the commands of its punctuation." The presence or absence of a comma in front of "or" determines whether a modifying phrase applies to all preceding items or only to the last one. This is sometimes called the "serial comma" or "Oxford comma" issue. It can change the substantive scope of a statute.

Could the city council just ask its city attorney to file a court action?

It could try, but a city does not have standing to access TBI investigative records just because it wants them. The city attorney would need legal authority (such as a pending case where the records are relevant) to obtain a court subpoena or order.

Background and statutory framework

Tennessee Code Annotated § 10-7-504(a)(2)(A) provides:

All investigative records of the Tennessee bureau of investigation shall be treated as confidential and shall not be open to inspection by members of the public. The information contained in such records shall be disclosed to the public only in compliance with a subpoena or an order of a court of record.

The AG applied the plain-meaning rule and noted that statutory meaning "will typically heed the commands of its punctuation." U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993). The absence of a comma between "subpoena" and "or" means the adjectival phrase "of a court of record" modifies both. See also Mitsui Machinery Distribution, Inc. v. The Chase Manhattan Leasing Company, Inc., 1994 Tex. App. LEXIS 3097, at *10-11 (Tex. Ct. App. Dec. 19, 1994).

A city council is not among Tennessee's courts of record. Therefore, even where a city charter grants the council subpoena power for its own legislative purposes, that authority does not reach TBI investigative records.

Citations

• Tenn. Code Ann. § 10-7-504(a)(2)(A) (TBI investigative records confidentiality)
• U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)
• Mitsui Machinery Distribution, Inc. v. The Chase Manhattan Leasing Company, Inc., 1994 Tex. App. LEXIS 3097 (Tex. Ct. App. Dec. 19, 1994)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-065.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 25, 2015
Opinion No. 15-65
Authority of City Council to Subpoena TBI Investigative Records

Question

Does a city council with subpoena power under its charter have the authority to issue a subpoena for investigative records of the Tennessee Bureau of Investigation?

Opinion

No.

ANALYSIS

You have asked whether a city council with subpoena power under its charter has the authority to issue a subpoena for investigative records of the Tennessee Bureau of Investigation. Tennessee Code Annotated § 10-7-504(a)(2)(A) provides that "[a]ll investigative records of the Tennessee bureau of investigation shall be treated as confidential and shall not be open to inspection by members of the public." Such information shall be disclosed to the public "only in compliance with a subpoena or an order of a court of record." Id. (emphasis added).

As a matter of syntax, the italicized prepositional phrase—"of a court of record"—functions as an adjective in § 10-7-504(a)(2)(A). Thus, the answer to the question depends on whether the adjectival phrase "of a court of record" modifies both its antecedent nouns, i.e., "subpoena" and "order," or whether it modifies only "order."

A statute's plain meaning must be enforced, and the "meaning of a statute will typically heed the commands of its punctuation." U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993). The applicable statute provides that TBI investigative records may be disclosed "only in compliance with a subpoena or an order of a court of record." "Subpoena" and "order" are both nouns antecedent to the adjectival phrase "of a court of record." The two antecedent nouns are connected by the conjunction "or." There is no comma separating the two antecedent nouns. If there were a comma after "subpoena" to separate it from the rest of the sentence, then "or" would be properly read as a disjunctive rather than as a coordinating conjunction, and the adjectival phrase would then properly be read to modify only "order." But since there is no comma separating the two nouns, "or" functions grammatically as a coordinating conjunction, tying the two antecedent nouns together and requiring that the adjectival phrase be read as modifying both its antecedent nouns. See Mitsui Machinery Distribution, Inc. v. The Chase Manhattan Leasing Company, Inc., No. B14-93-003950-CV, 1994 Tex. App. LEXIS 3097, at *10-11 (Tex. Ct. App. Dec. 19, 1994). Accordingly, the plain meaning of the statute is that TBI investigative records may be disclosed to the public only in compliance with a subpoena of a court of record or an order of a court of record.

In sum, the punctuation in Tenn. Code Ann. § 10-7-504(a)(2)(A)—namely the absence of a comma to separate "subpoena" from the rest of the sentence—requires that § 10-7-504(a)(2)(A) be read to provide that investigative records of the TBI are subject to disclosure only in compliance with a subpoena of a court of record or an order of a court of record. A city council is not a court of record. Therefore, a subpoena issued by a city council would not satisfy the statutory requirements for subpoena for investigative records of the TBI. Put another way, a city council has no authority to subpoena investigative records of the TBI pursuant to Tenn. Code Ann. § 10-7-504(a)(2)(A).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Antonio Parkinson
State Representative
36-B Legislative Plaza
Nashville, Tennessee 37243