If a Tennessee judge orders a prosecutor to hand the entire file to defense counsel, can the prosecutor be sued for disclosing confidential records inside it?

Plain-English summary

A Tennessee criminal case file held by a district attorney often contains material that some other statute or rule treats as confidential: medical records, social security numbers, student records, tax information, juvenile records. When a trial judge issues a sweeping order requiring the prosecutor to disclose "all information" to defense counsel, the prosecutor faces a practical question. If a confidential record gets disseminated as a result, can the prosecutor be sued?

District Attorney General Amy Weirich and Tenn. District Attorneys General Conference Director Jerry Estes asked AG Slatery to address that risk. The AG's answer was "generally yes," meaning the prosecutor is generally protected.

The protection comes from three layered sources. First, most state and federal confidentiality statutes themselves contain express carve-outs for disclosures pursuant to a court order or subpoena. Tennessee's Patient's Privacy and Protection Act, for example, says it "shall not be unlawful to disclose, nor shall there be any liability for disclosing, medical information in response to a subpoena, court order, or request authorized by state or federal law" (Tenn. Code Ann. § 68-11-1503(d)). Tennessee's social security number statute (§ 47-18-2110), consumer-information statute (§ 47-18-2204), tax-information statute (§ 67-1-1709), the FERPA-style student-information statute (§ 49-1-708), and the Tennessee Public Records Act all have similar carve-outs.

Second, the common-law privilege under Restatement (Second) of Torts § 592A bars liability for "conduct the law requires." The U.S. Supreme Court applied that principle in Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525 (1959), and the Nevada Supreme Court applied it to a federal-securities-law mandated disclosure in Cucinotta v. Deloitte & Touche, LLP, 302 P.3d 1099 (Nev. 2013).

Third, Tennessee's Rule of Professional Conduct 1.6(c)(2) allows a lawyer to disclose client information when reasonably necessary to comply with an order of a tribunal requiring disclosure, after asserting all non-frivolous claims of privilege.

The opinion is careful, though, not to declare blanket immunity. Some confidentiality statutes require "reasonable efforts" to protect the information. A prosecutor who hands over a file without flagging confidentiality issues to the court, or without seeking a protective order, might fall short of those efforts. The AG declined to draw bright lines: liability turns on the specific statute and the specific facts.

Currency note

This opinion was issued in 2018. 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.

The specific statutory carve-outs cited (medical, tax, student records, public records) and the federal counterparts (HIPAA, FERPA, federal tax confidentiality, substance-abuse records) are subject to amendment. Anyone evaluating disclosure obligations and immunities today should pull the current versions of those statutes and any later AG opinions or judicial decisions.

Common questions

Q: What is the basic rule?
A: A district attorney complying with a court order generally will not face liability for disclosing data that another statute or doctrine treats as confidential, because (1) the underlying statutes typically include a court-order carve-out, (2) common-law tort doctrine recognizes a privilege for legally compelled conduct, and (3) the lawyer-confidentiality rule allows disclosure to comply with a tribunal order.

Q: Are there exceptions?
A: Yes. Some confidentiality regimes require "reasonable efforts" to protect information, and the AG flags that a prosecutor who simply complies without alerting the court to confidentiality concerns or seeking a protective order may fall short of those efforts. The opinion does not enumerate which statutes have this kind of "reasonable efforts" duty; that has to be evaluated record-by-record.

Q: What about HIPAA and FERPA?
A: Both federal regimes contain mechanisms for disclosure under court order or qualified protective order. The opinion lists them as examples of federal confidentiality statutes that operate alongside the Tennessee analysis (FERPA at 20 U.S.C. § 1232g; HIPAA at 42 U.S.C. § 1320d-2 and 45 C.F.R. pt. 164). The opinion does not work through the procedural mechanics of either regime.

Q: Does the AG say that a sweeping court order is always proper?
A: No. The opinion addresses only the prosecutor's liability for complying. Whether the court order itself was appropriate is a separate question, governed by the criminal-discovery rules and the constitutional rights of the defendant. A prosecutor confronting an over-broad order may want to seek modification or a protective order before turning over confidential records, both for the protection of third parties and to satisfy any "reasonable efforts" duty.

Q: What about Rule 1.6(c)(2)?
A: That rule allows a lawyer to disclose information relating to representation when reasonably necessary to comply with an order of a tribunal, after asserting all non-frivolous claims of privilege. So a prosecutor cannot just hand over privileged work product without first asserting privilege; once asserted and overruled, compliance with the order is permissible.

Q: Is the protection criminal too?
A: The opinion treats civil and criminal liability together for the proposition that conduct required by court order should not give rise to either. The strongest source for that is the U.S. Supreme Court's reference in Farmers Educational v. WDAY to the unconscionability of permitting "civil and perhaps criminal liability" for legally compelled conduct.

Background and statutory framework

Tennessee's confidentiality regime is fragmented across statutes. Each addresses a different category of information:

• Tenn. Code Ann. § 10-7-504 protects various public records (juvenile records, certain personnel records, victim-related information, etc.) with multiple subparts. Most subparts contain express carve-outs for court-ordered disclosures.
• Tenn. Code Ann. § 47-18-2110 imposes civil and criminal liability for failure to protect a social security number, but exempts disclosures pursuant to a "lawful legal obligation."
• Tenn. Code Ann. § 47-18-2204 protects consumer records and allows disclosure pursuant to a court order under specified conditions.
• Tenn. Code Ann. § 49-1-708 protects student information collected by educational operators and allows disclosure to ensure legal and regulatory compliance.
• Tenn. Code Ann. § 67-1-1702 and § 67-1-1709 cover tax information; § 67-1-1709 makes unauthorized disclosure a felony "except as authorized by law."
• Tenn. Code Ann. § 68-11-1501 et seq. is the Tennessee Patient's Privacy and Protection Act; § 68-11-1503(d) is the explicit court-order/subpoena carve-out.

Federal counterparts include FERPA (20 U.S.C. § 1232g), federal tax confidentiality (26 U.S.C. § 6103), HIPAA (42 U.S.C. § 1320d-2; 45 C.F.R. pt. 164), and the federal substance-abuse confidentiality statute (42 U.S.C. § 290dd-2). Each has its own court-order or qualified protective order mechanism.

Common law adds the Restatement (Second) of Torts § 592A privilege: an individual required by law to publish defamatory material is absolutely privileged. Comment a explains the underlying principle: "one who is required by law to do an act does not incur any liability for doing it." The U.S. Supreme Court endorsed the same principle in Farmers Educational v. WDAY in 1959; the Nevada Supreme Court applied it in Cucinotta v. Deloitte & Touche to insulate an accounting firm from liability for a securities-law-required disclosure.

Tennessee's Rule of Professional Conduct 1.6(c)(2) extends the same logic to lawyers. Disclosure to comply with a tribunal's order is permitted once non-frivolous privilege claims have been asserted.

The opinion's calibration is essentially: yes you are protected, but the protection has edges, and the way you handle the order matters. A prosecutor doing a careful job of asserting confidentiality concerns, seeking limits, and following a protective order has the strongest defense.

Citations

• Tenn. Code Ann. § 10-7-504 (public records); § 47-18-2110 (social security numbers); § 47-18-2204 (consumer information); § 49-1-708 (student information); § 67-1-1702, § 67-1-1709 (tax information); § 68-11-1501 et seq., § 68-11-1503(d) (Tennessee Patient's Privacy and Protection Act)
• 20 U.S.C. § 1232g (FERPA); 26 U.S.C. § 6103 (federal tax confidentiality); 42 U.S.C. § 1320d-2; 45 C.F.R. pt. 164 (HIPAA); 42 U.S.C. § 290dd-2 (substance abuse records)
• Tenn. Sup. Ct. R. 8, RPC 1.6(c)(2)
• Restatement (Second) of Torts §§ 592A, 652A, 652D
• Brown v. CVS Pharmacy, 982 F. Supp. 2d 793 (M.D. Tenn. 2013)
• Farmers Educ. & Co-op. Union of Am. v. WDAY, Inc., 360 U.S. 525 (1959)
• Cucinotta v. Deloitte & Touche, LLP, 302 P.3d 1099 (Nev. 2013)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-01.pdf

Original opinion text

Potential Liability for Disclosures Pursuant to Court Order

Question
Is a court order that requires a district attorney to provide copies of all information in his or her possession to defense counsel sufficient to protect the district attorney from liability if the information disseminated as a result of the order contains data that is otherwise legally protected from disclosure?

Opinion
Generally, yes.

ANALYSIS

Numerous provisions of the Tennessee Code protect particular information from disclosure. See, e.g., Tenn. Code Ann. § 10-7-504 (certain public records); id. § 47-18-2110 (social security numbers); id. § 47-18-2204 (consumer information); id. § 49-1-708 (student information collected by educational operators); id. § 67-1-1702 (tax information); id. § 68-11-1501, et seq. (medical and health information). Federal law also provides for the confidentiality of particular information. See, e.g., 20 U.S.C. § 1232g (student information); 26 U.S.C. § 6103 (tax information); 42 U.S.C. § 1320d-2, 45 C.F.R. pt. 164 (health and medical information); 42 U.S.C. § 290dd-2 (substance abuse treatment records). And the common law tort of invasion of privacy protects individuals against unwarranted invasions of privacy, including the distribution or disclosure of private information. See Restatement (Second) of Torts §§ 652A, 652D; Brown v. CVS Pharmacy, 982 F. Supp. 2d 793, 806 (M.D. Tenn. 2013).

In general, however, these privacy protections contain express exemptions for disclosures ordered by a court or pursuant to a subpoena. For example, the Tennessee Patient's Privacy and Protection Act prohibits the disclosure of identifying information about a patient, but clarifies that "it shall not be unlawful to disclose, nor shall there be any liability for disclosing, medical information in response to a subpoena, court order, or request authorized by state or federal law." Tenn. Code Ann. § 68-11-1503(d). Similarly, Tenn. Code Ann. § 47-18-2110 establishes criminal and civil liability for failure to protect the privacy of an individual's social security number, but it exempts from such liability any disclosure pursuant to "a lawful legal obligation." Id. § 47-18-2110(b)(1). And the Tennessee Public Records Act includes numerous provisions that permit the disclosure of otherwise confidential information when required by law, including disclosures by a district attorney to a defense counsel when required to protect the defendant's constitutional rights. See, e.g., Tenn. Code Ann. § 10-7-504(a)(2)(A), (a)(4)(A), (a)(8), (a)(15)(H), (a)(16)(H), (f)(8)(C)(ii), (m)(1)(E), (q)(3), (u)(2). Other privacy laws have similar provisions permitting disclosure when required by law, including by court order. See, e.g., id. § 47-18-2204(b)(1)(B) (permitting disclosure of consumer records "[p]ursuant to a court order" if certain conditions are met); id. § 49-1-708(4)(B) (disclosure of student information permitted "[t]o ensure legal and regulatory compliance"); id. § 67-1-1709(a) (establishing a felony for disclosures of tax information "except as authorized by law").

Common law similarly recognizes a defense to liability for disclosures made pursuant to court order or other legal obligation. For example, the Restatement (Second) of Torts § 592A recognizes that an individual required by law to publish defamatory material is absolutely privileged to publish it. That section "rests upon the principle that one who is required by law to do an act does not incur any liability for doing it." Restatement (Second) of Torts § 592A, cmt. a. As the U.S. Supreme Court has recognized, it would be "unconscionable" to "permit[] civil and perhaps criminal liability to be imposed for . . . conduct [a] statute demands." Farmers Educ. & Co-op. Union of Am. v. WDAY, Inc., 360 U.S. 525, 531 (1959); see also Cucinotta v. Deloitte & Touche, LLP, 302 P.3d 1099, 1101-02 (Nev. 2013) (holding that an accounting firm could not be held liable for a disclosure because the disclosure was required by federal securities laws). The same principle is true for conduct a court order demands.

The Code of Professional Responsibility governing lawyers incorporates a similar principle. Under the confidentiality rules, a lawyer shall not reveal client confidences except in enumerated circumstances. One of the circumstances in which disclosure is permitted is when the disclosure is reasonably necessary "to comply with an order of a tribunal requiring disclosure," so long as the lawyer has asserted all non-frivolous claims of privilege in an attempt to prevent disclosure. Tenn. Sup. Ct. R. 8, Rule 1.6(c)(2).

Because each disclosure of potentially confidential or privileged information is unique, any liability for such a disclosure and each defense to any such liability would ultimately be determined by the statutes, common law doctrines, ethical rules, and particular circumstances relevant to that disclosure. Accordingly, it is not possible to determine in the abstract that a district attorney turning over information to defense counsel pursuant to a court order is, in all circumstances, immune from liability. For example, some confidentiality obligations require an individual to make reasonable efforts to protect information. In a given circumstance, a district attorney may have failed to make reasonable efforts by, among other things, neglecting to inform the court of the potential disclosure of information of a privileged or confidential nature.

In general, however, a district attorney turning over information to defense counsel pursuant to a mandate from the court will not be liable for the disclosure of confidential or privileged information. To subject an individual to liability for an act required by a court order would be, in the words of the U.S. Supreme Court, "unconscionable." Farmers Educ., 360 U.S. at 531.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Amy P. Weirich
District Attorney General
201 Popular Avenue, Third Floor
Memphis, TN 38103-1947

Mr. Jerry Estes
Executive Director, Tenn. District Attorneys General Conference
226 Capitol Boulevard, Suite 800
Nashville, Tennessee 37243