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TN Newspaper Entitled to Full Attorney Fees in Actions to Compel Disclosure of Public Records

TN Newspaper Entitled to Full Attorney Fees in Actions to Compel Disclosure
of Public Records

Police in Lebanon, Tennessee conducted a drug raid at the wrong house and
fatally shot the man who lived there. His wife, without filing suit,
negotiated a settlement with the city. A newspaper reporter asked for a
copy of the Settlement Agreement (Agreement) but was turned down by the
city attorney. The city attorney then moved the local trial court for a
protective order to keep the Agreement confidential. The trial court
granted the motion and the newspaper appealed. The newspaper also sued to
compel disclosure in the Chancery Court. Meanwhile, the Court of Appeals
vacated the protective order, and the trial court awarded attorney fees to
the newspaper for everything but its costs in the Chancery Court
($20,038.52). The Chancery Court ruled that the city must disclose the
Agreement and both sides appealed the attorney fee award.

On appeal, the Court of Appeals of Tennessee found that the Agreement
should have been disclosed when the newspaper asked for it. Therefore, any
costs incurred in getting it, including the $4,000 in the Chancery Court
must be awarded to the newspaper. Thus, after modifying the fee award to
include the $4,000 in Chancery Court costs, the Court of Appeals affirmed
the trial court. See: In re the Matter of John Adams, Deceased v. City of
Lebanon, Tennessee v. The Tennessean, 2004 Tenn. App. LEXIS 99.

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Related legal case

City of Lebanon, Tennessee v. The Tennessean

THE TENNESSEAN, ET AL. v. THE CITY OF LEBANON, TENNESSEE



No. M2002-02078-COA-R3-CV



COURT OF APPEALS OF TENNESSEE, AT NASHVILLE



2004 Tenn. App. ; 32 Media L. Rep. 2304



May 7, 2003 Session

February 13, 2004, Filed



PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded. Appeal from the Chancery Court for Wilson County. No. 01014. Charles K. Smith, Chancellor. Adams v. City of Lebanon, 2002 Tenn. App. (Tenn. Ct. App., Feb. 7, 2002)



DISPOSITION: Affirmed as modified, and remanded.




COUNSEL: Charles W. Cook, III, Nashville, Tennessee; Peggy F. Williams, Lebanon, Tennessee, for the appellant, the City of Lebanon, Tennessee.



Alfred H. Knight, Alan D. Johnson, Nashville, Tennessee, for the appellees/cross-appellants, The Tennessean and Warren Duzak.



JUDGES: PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM C. KOCH, JR., J., joined.



OPINION BY: PATRICIA J. COTTRELL



OPINION: The City of Lebanon appeals the trial court's award of partial attorney fees to The Tennessean newspaper under the provisions of the Public Records Act, Tenn. Code Ann. § 10-7-501 et seq. The City argues that the trial court erred in ordering it to pay any attorney fees at all, because its refusal to make a public record available to The Tennessean was justified by a good faith belief that it was not required to. The newspaper argues that the trial court should have awarded it all the fees it incurred in the effort to [*2] compel the City of Lebanon to comply with the Public Records Act, instead of just a portion of those fees. We agree with The Tennessean, and we accordingly affirm the award of attorney fees, but modify it to include those fees that had been excluded by the trial court.

The sole issues in this appeal involve questions relating to the trial court's award of attorney fees. Since those fees arose from underlying litigation under the Public Records Act, and those records were created as the result of a private citizen's claims against the City of Lebanon, we must begin this opinion with a brief history.

I. A REQUEST UNDER THE PUBLIC RECORDS ACT

In the year 2000, the Lebanon Police Department's Drug Task Force staged a raid on a private residence within the City of Lebanon. They went to the wrong house because of a faulty search warrant, entered the house without properly identifying themselves, and wound up shooting and killing John Adams, a private citizen who was wholly unconnected with the target of the warrant.

The City of Lebanon admitted liability. Mr. Adams' widow, Lorrine Adams, did not file a complaint, and she did not initiate a lawsuit against the City of Lebanon [*3] at any time. Instead, she entered into negotiations with the City's insurance carrier, Corregis Insurance. On December 16, 2000, the parties reached a settlement agreement. One provision of the agreement was that the details of the settlement would remain confidential.

On December 19, Warren Duzak, a reporter for The Nashville Tennessean asked for a copy of the settlement agreement and other documents relating to it, pursuant to the Public Records Act, Tenn. Code Ann. § 10-7-501 et seq. The City Attorney denied the request.

II. COURT PROCEEDINGS

The day after the City's refusal, the City Attorney filed a Motion in the Wilson County Circuit Court seeking a protective order to maintain the confidentiality of the settlement agreement, even though there was no litigation pending in that court between Ms. Adams and the City. The City styled its Motion "In re the Matter of John Adams, deceased and Lorrine Adams v. City of Lebanon, Tennessee." The motion specifically asked for a protective order to keep the "terms of the settlement agreement" confidential and stated, in pertinent part:

The confidentiality provision was included in the Agreement to [*4] prevent any influence it may or may not have on the state's pending suit in criminal court against a former police officer involved in the wrongly executed search warrant; and, for the protection of the privacy of Mrs. Adams and the estate of John Adams. The Nashville Tennessean, a Nashville daily newspaper, now demands that the city provide a copy of the settlement agreement under the Public Records Act and the Freedom of Information Act. The City avers that revelation of the terms of the Agreement will have an adverse effect on the mediation process, which will outweigh the public's right to know, and will jeopardize the city's future use of the mediation process in settlement of civil claims against it. The city further avers that revelation of the terms of the Agreement, if made public, could influence a jury, either way, in the criminal trial now pending.

A hearing on the City's motion was conducted ex parte, without notice to The Tennessean. Notwithstanding the jurisdictional requirements of the Public Records Act, the Circuit Court granted the protective order on December 21. The order reiterated that it had been sought "to keep confidential the terms of a settlement agreement [*5] . . . " and specifically found that "the terms of the settlement agreement are entitled to a Protective Order." Despite the court's statement regarding the purpose of the motion, the court also found that any and all records of the investigation into the death of Mr. Adams were not subject to inspection under the Public Records Act. In support of the protection of the settlement agreement, the court found that Rule 31 of the Tennessee Supreme Court required that agreements resulting from mediation remain confidential.

Upon learning of the protective order, The Tennessean filed a Motion to Intervene and a Motion to have the Protective Order set aside on the ground of lack of jurisdiction. n1 The Circuit Court granted the Motion to Intervene, but denied the Motion to Set Aside. The primary basis for the court's denial was that Rule 31 authorized the confidentiality of the settlement. The Tennessean then appealed.



n1 Prior to its court filings, The Tennessean, through its counsel, sent a letter to the City attorney formally requesting access to the settlement agreement and correspondence relating to Ms. Adams' claim against the City.



[*6]

The Tennessean also filed a Petition for Access to Public Records in the Chancery Court of Wilson County pursuant to Tenn. Code Ann. § 10-7-505. The Chancery Court conducted a hearing on the newspaper's Petition on March 8, 2001, but declined to rule, because the appeal of the Circuit Court's decision was pending, and the Chancery Court decided to withhold its decision until the Court of Appeals acted.

This court rendered its opinion on February 7, 2002. See In re: John Adams, 2002 Tenn. App. LEXIS 113, No. M2001-00662-COA-R3-CV, 2002 WL 192575 (Tenn. Ct. App. Feb. 7, 2002) (No Tenn. R. App. P. 11 application filed). We held that the Circuit Court's ruling was void and of no effect because that court did not have jurisdiction to enter a protective order in this case for two reasons.

First, no Complaint had been filed, and therefore no action had been commenced to give the trial court jurisdiction to issue the protective order. Second, subject matter jurisdiction over demands for public documents is vested in the Chancery Court under Tenn. Code Ann. § 10-7-505. We further held that the confidentiality provisions of Rule 31 did not [*7] apply in this case because the parties were never before the court and the settlement negotiations were not initiated pursuant to Rule 31.

After this Court issued its opinion, The Tennessean set a show cause hearing in the Chancery Court on its Petition for Access. The City's concerns about the disclosure of the records had been allayed by this time, and it tendered the requested records before the hearing. The show cause hearing was then converted into a hearing on the newspaper's request for attorney fees, which are authorized under Tenn. Code Ann. § 10-7-505(g) for a governmental entity's willful refusal to disclose a public record.

On July 17, 2002, the Chancellor ruled from the bench, without an evidentiary hearing. The court found that the newspaper was entitled to the attorney fees and costs it incurred because of the filings and proceedings in Circuit Court, including its appeal of the Circuit Court's ruling. It also ruled that The Tennessean should be reimbursed for the costs it incurred in applying for attorney fees, other than the cost of attending the July 17 hearing. The total award amounted to $ 20,038.52. But the court excluded from [*8] reimbursement those costs directly arising from or generated by the newspaper's Petition for Access in the Chancery Court, which we calculate from the attorney's affidavit to amount to about $ 4,000. The City of Lebanon appealed the trial court's award of fees. The Tennessean also appealed the trial court's denial of the remainder of its requested fees.

III. ATTORNEYS FEES AND PUBLIC RECORDS

The Public Records Act makes it possible for a petitioner to recover the attorney fees and costs it incurs in the process of judicially compelling a governmental entity to comply with the provisions of the Act. Tenn. Code Ann. § 10-7-505(g) reads:

If the court finds that the governmental entity, or agent thereof, refusing to disclose a record, knew that such record was public and willfully refused to disclose it, such court may, in its discretion, assess all reasonable costs involved in obtaining the record, including reasonable attorneys' fees, against the nondisclosing governmental entity.

The reason for this legislative exception to the general "American" rule that each party pays its own attorney fees is to discourage wrongful refusals to disclose [*9] public documents. Contemporary Media Inc. v. City of Memphis, 1999 Tenn. App. LEXIS 298, No. 02A01-9807-CH00211, 1999 WL 292264, at *3 (Tenn. Ct. App. May 11, 1999) (No Tenn R. App. P. 11 application filed). It also recompenses a party who has been required to expend time and money to enforce the public's right to access to public documents. Id. Consequently, it furthers the purpose of the Act, which is "to give the fullest possible public access to public records." Tenn. Code Ann. § 10-7-505(d).

The statute is a limited award provision. Memphis Publishing Co. v. City of Memphis, 871 S.W.2d 681, 689 (Tenn. 1994). The decision whether to award attorneys' fees under Tenn. Code Ann. § 10-7-505(g) is left to the discretion of the trial court, and appellate courts will not disturb that decision absent an abuse of that discretion. Memphis Publishing Company v. Cherokee Children & Family Services, Inc., 87 S.W.3d 67, 80 n. 15 (Tenn. 2002).

Under the abuse of discretion standard, a trial court's ruling "will be upheld so long as reasonable minds can disagree as to the propriety of the decision made." A trial [*10] court abuses its discretion only when it "applies an incorrect legal standard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining." The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court.



Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

The statute allows the court to award fees upon a finding that the governmental entity knew the record was public and willfully refused to disclose it. These two requirements have sometimes been stated as one combined standard, willfulness. Because the knowledge component of the standard implicates the issue of the clarity of the law regarding the settlement agreement's status as a public record, we begin with some basic principles.

Whether a document is a public record is, in the first instance, determined by whether it was made or received by a governmental entity pursuant to law or ordinance or in connection with the transaction of official business. Tenn. Code Ann. § 10-7-503(b); Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn. 1991). [*11] The Act creates a presumption of openness as to government documents. Arnold v. City of Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 2000). There are specific exceptions that make otherwise public records confidential and not subject to disclosure, see Tenn. Code Ann. § § 10-7-503(b) through (e) & -504, none of which are relevant herein, as well as a general exception to the access requirement where "otherwise provided by state law," Tenn. Code Ann. § 10-7-503(a), which effectively exempts from disclosure documents that are made privileged or protected from disclosure by law other than the Act itself. Arnold, 19 S.W.3d at 786.

The legislature has declared that when courts are called upon to decide petitions for access, the Public Records Act "shall be broadly construed so as to give the fullest possible public access to public records." Tenn. Code Ann. § 10-7-505(d). Tennessee courts have adhered to the policy of full public access and interpreted the Act liberally to further the public interest as defined by the legislature. Memphis Publishing Co. v. Cherokee Children & Family Services, Inc., 87 S.W.3d at 74; [*12] Tennessean v. Electric Power Bd. of Nashville, 979 S.W.2d 297, 301 (Tenn. 1998). When a request for access to a record is denied, the burden is placed on the governmental entity to justify nondisclosure. Tenn. Code Ann. § 10-7-505(c).

There is no dispute or question that the settlement agreement was created or received by the City in the transaction of official business and was presumptively a public record subject to disclosure under the Act. The question, therefore, is whether there existed some exception to justify the refusal of access.

IV. A DUTY TO DISCLOSE



The question of whether a settlement agreement in litigation against a city is subject to disclosure under the Public Records Act was decided in Contemporary Media, Inc. v. City of Memphis, 1999 Tenn. App. LEXIS 298, No. 02A01-9807-CH00211, 1999 WL 292264 (Tenn. Ct. App. May 11, 1999) (No Tenn. R. App. P. 11 application filed). In that case, the family of a man who died in police custody had filed a civil rights lawsuit in federal court against the city. The lawsuit was settled by an agreement that included a confidentiality provision, and the city procured a "confidentiality [*13] order" which was placed under seal in the federal court lawsuit. This order reiterated the confidentiality provision, but the settlement agreement's other terms were not included. After the media requested and was denied access to the agreement by the city, Contemporary Media filed a petition for access in the chancery court. The city agreed that the requested documents were public records, but asserted that their disclosure was prohibited by the federal court confidentiality order. Subsequently, the federal court entered an order finding that the confidentiality order did not prohibit the city from disclosing the terms of the settlement agreement. The city then released the documents.

The issue then became Contemporary Media's entitlement to attorney's fees it incurred in gaining access to the settlement agreement. This court stated that the first inquiry was whether the city knew that the record was public, and that question involved a determination of whether the city could make an agreement to treat the record as confidential. We found that the city could not and held:

A governmental entity cannot enter into confidentiality agreements with regard to public records. The [*14] idea of entering into confidentiality agreements with respect to public records is repugnant to and would thwart the purpose and policy of the Act. Thus, the City could not lawfully enter into the agreement which it entered into with the . . . family to keep the terms of the public record confidential.



Contemporary Media, Inc., 1999 Tenn. App. LEXIS 298, 1999 WL 292264, at *5.

In reaching this conclusion, the court relied in part upon a 1996 Opinion of the Attorney General of Tennessee which opined that an agreement by a governmental agency to restrict public access to public records that are not exempt under law violates public policy and is unenforceable. 1999 Tenn. App. LEXIS 298, at [WL] at *5, quoting OP TENN. ATTY. GEN. 96-144 (December 3, 1996).

Thus, at the time The Tennessean made its request to the City of Lebanon, there existed an opinion of the Court of Appeals holding and an Opinion of the Attorney General indicating that the City could not agree to make the settlement document confidential and that such an agreement would not be effective to remove the settlement document from the disclosure requirements of the Public Records Act.

The City does not address this authority or attempt to explain [*15] why it does not apply or why it did not put the City on notice that the settlement agreement was a public document whose disclosure was required. Instead, the City argues that its refusal to grant access to the settlement agreement was "warranted by existing law or a good faith argument for the extension, modification or reversal of existing law."



In specific, the City argues that after it refused to disclose the settlement agreement it "sought guidance" from the Circuit Court and was thereafter entitled to rely on the Circuit Court's decisions regarding the protective order and deny access. But the City did not simply "seek guidance;" it sought and obtained ex parte a protective order in a court without jurisdiction where no case was pending in order to prevent or delay access. In fact, the City's motion stated that a protective order was necessary because the newspaper has requested access to the settlement agreement. In our earlier opinion, this court described the City's actions in seeking the protective order in Circuit Court as "an attempt to thwart the Public Records Act" and a "pre-emptive strike" for which there was no authority. In re: the Matter of John Adams, Deceased, 2002 WL 192575,at *3. [*16]

The question before us is not whether the City's continued refusal was justified by pending court proceedings. Instead, the relevant question is whether the City's refusal to produce the requested documents was willful and with the knowledge that the record was public.

V. THE CITY'S RATIONALE FOR REFUSING TO DISCLOSE

In this appeal, the City asserts three substantive bases for refusal of access: (1) that Tennessee Supreme Court Rule 31 required that the settlement agreement remain confidential, (2) that the then pending criminal investigation of the shooting precluded disclosure of investigative reports that were also part of the City's file, and (3) that Ms. Adams' desire for confidentiality based on privacy and security concerns justified the refusal of access.

This court discussed the Rule 31 argument in its prior opinion in this matter, holding:

Rule 31 applies to court ordered mediation, which may be ordered by the court on its own motion, or on motion of a party. Harris v. Hall, 2001 Tenn. App. LEXIS 856, No. M2000-00784-COA-R3-CV, 2001 WL 21504893, at *4 (Tenn. Ct. App. Nov. 28, 2001). To be so ordered, there must therefore be an underlying matter before the court. The [*17] rule expressly does not govern private alternative dispute resolution. Sup. Ct. R. 31 § 1. Mrs. Adams never initiated a claim against the City of Lebanon. Accordingly, the settlement mediation between Mrs. Adams and the City did not take place in the context of a Rule 31 court order. Although the courts and legislature of this State recognize and commend arbitration as a means of dispute resolution, (citation omitted), Rule 31 governing court annexed arbitration cannot be invoked here to justify a preemptive protective order in a matter that was never before the court.



In re: John Adams, 2002 Tenn. App. LEXIS 113, 2002 WL 192575, at *7.

As this quotation makes clear, there was no legal basis for the assertion that Rule 31 exempted the settlement agreement from disclosure, either at the time the City refused the newspaper's request for the document or later. Rule 31 itself provides in its Section 1 that the standards and procedures in Rule 31 "do not affect or address the general practice of alternative dispute resolution in the private sector outside the ambit of Rule 31," which can only be called into play when there is pending an "eligible civil action," as defined in Tenn. R. S. Ct. [*18] 31 § 2(d).

As its second ground for refusing access, the City asserts that The Tennessean's request for access was so broad as to include investigative files or other materials relating to a pending criminal investigation into the conduct of a police officer involved in the search warrant or its execution. n2 The City relies upon the Circuit Court's finding in its Protective Order that the City's files related to Ms. Adams' claim contained investigative reports prepared by law enforcement agencies and the Chancery Court's observation that the newspaper was also seeking investigative reports. The City argues that not only were the investigative reports protected from disclosure, but that the mediation agreement and settlement agreement were also properly withheld "until such time as the Circuit Court determined that the criminal investigation and/or trial has concluded so that any criminal trial will be fair, impartial and just." n3



n2 In a letter written after the issuance of the protective order, the City attorney informed The Tennessean's attorney that she was declining the newspaper's request for access "to the settlement agreement . . . and any other documents relating to her claim."

[*19]





n3 The motion for protective order, quoted earlier, the letter from The Tennessean's attorney referenced in footnote 1, and the letter from the City's attorney referenced in footnote 2 all refer to a request for the settlement agreement and correspondence or documents relating to that settlement. Nowhere is there mention of the criminal investigative reports. From the motion the City filed, we interpret its position at that time as concern about the potential effect on the pending or prospective criminal trial of publicity about the settlement, not the release of any investigative reports. That interpretation is consistent with the City's argument in its brief that "if the jury pool found out that the City's insurance company had settled a wrongful death suit with Ms. Adams, it is very likely that such knowledge would cause the jury to believe that the police officer was guilty" and the continuation of that argument quoted above. This is a public policy argument related to disclosure of the settlement agreement itself.



The City correctly asserts that records relating to a pending criminal [*20] action are not subject to disclosure under the Public Records Act because they are protected by other state law, specifically Tenn. R. Crim. P. 16(a)(2). Appman v. Worthington, 746 S.W.2d 165, 166 (Tenn. 1987); Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 361 (Tenn. Ct. Crim. App. 1998). However, the mediation and settlement agreements between the City and Ms. Adams are not criminal investigative records. The fact that the City may have included those documents in the same files as police and TBI investigative reports does not make them confidential by association.

It is well-settled that a governmental entity must disclose records or portions of records that are public, even if it must delete confidential information contained in those records. Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d at 303; Hickman v. Tenn. Bd. of Paroles, 2003 Tenn. App. LEXIS 187, No. M2001-02346-COA-R3-CV, 2003 WL 724474, at *9-10 (Tenn. Ct. App. March 4, 2003) (No Rule 11 Perm. App. filed). Those cases placed on the governmental entity an obligation to create computer programs to produce new reports containing only public information, while eliminating [*21] confidential information. In the case before us, no such burden would be imposed on the City; all it had to do was pull the public records from its files.

Consequently, whether or not The Tennessean's request included confidential investigative reports, which the newspaper disputes n4, it is abundantly clear that The Tennessean requested the settlement agreement and the City refused access to the settlement agreement. It is equally clear that the confidentiality of the investigative reports has no relevance to and no effect upon the public status of the totally separate settlement agreement related to the City's potential civil liability. Thus, the City's argument as to this ground for refusing disclosure is without merit. n5



n4 The Circuit Court, in its order refusing to set aside the protective order, specifically found that the Tennessean had requested investigative reports along with the settlement agreement and correspondence related to Ms. Adams' claim. The Petition for Access which initiated the proceeding herein states that the newspaper and its reporter had requested a copy "of this settlement agreement, along with correspondence and other documents that relate to it." There is no reference to criminal investigative reports, but it is not clear whether the chancellor interpreted the language used as broad enough to cover such reports. We simply note that the correspondence preceding this filing clearly referred to the settlement agreement, and the City never stated it considered the request as including investigative reports.

[*22]





n5 Again, we are compelled to point out that the City's reliance on court action after its refusal to grant access is misplaced. The question is whether, at the time of the refusal, the City knew the record was public and willfully refused to disclose it.



The third ground for refusing access asserted by the City is that Ms. Adams wanted the terms of the agreement to be kept confidential because of her concerns for her personal privacy and security. We can find no legal authority supporting an exclusion from the Public Records Act for an otherwise public record based on the wishes of the citizen involved. The City has provided us with no such authority, but argues that it would be appropriate to adopt a "rule of reason" denying The Tennessean access until such time as the citizen's privacy concern abated.

Ms. Adams' sincere concerns for her privacy and security do not provide the City with a basis for refusing access to the settlement agreement. Citizens who apply for permits, apply for government jobs, buy electricity from a governmental utility, or otherwise do business with a governmental [*23] entity may share those concerns with regard to information about them contained in governmental records. Nonetheless, the General Assembly has made the policy decision that, as a general rule, the interest of the public as a whole in information about the operation of government outweighs individual privacy concerns. The General Assembly has also determined that countervailing interests outweigh full access in certain situations and has identified those situations in the Act and by providing that governmental records shall be open for inspection . . . "unless otherwise provided by state law," in recognition of other legal authority making a record confidential or privileged.

Our courts have found that records otherwise public are not subject to disclosure under the Public Records Act because of other law prohibiting their release. See, e.g., Ballard v. Herzke, 924 S.W.2d 652, 661-62 (Tenn. 1996); Memphis Publishing Co. v. City of Memphis, 871 S.W.2d at 686 (Tenn. 1994); Arnold, 19 S.W.3d at 785-86. However, our courts have not departed from the requirement that the record be protected from disclosure by existing law. To the contrary, [*24] the Tennessee Supreme Court has consistently refused to create any public policy exception to the Public Records Act. Tennessean v. Electric Power Bd., 979 S.W.2d at 301. In Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986), the court held that closed police investigative reports were public records subject to disclosure because such records were not otherwise exempted by law n6 and rejected an argument it should imply an exception to the Act based on public policy. The court stated:

It is the prerogative of the legislature to declare the policy of the state touching the general welfare. And where the legislature speaks upon a particular subject, its utterance is the public policy of the state upon that subject. . . .



n6 The statute at that time read "unless otherwise provided by state statute." Holt, 710 S.W.2d at 515.







Id. 710 S.W.2d at 517. The Court has adhered to this position. n7 See Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999) [*25] (holding that the confidentiality of records is a statutory matter left to the legislature, and absent a fundamental right or other compelling reason it would not extend constitutional protection to the non-disclosure of personal information.) Thus, neither this court nor either trial court was free to substitute its public policy judgment for that expressed by the legislature in the Act or to create an exemption not otherwise provided by law. Invocations of public policy or private detriment are not in themselves legally sufficient justifications for withholding public records from citizens of Tennessee.



n7 The Holt court also referred to the then-existing provision allowing exceptions to public access only where "otherwise provided by state statute" and stated the legislature, by that language, had reserved to itself the public policy exceptions to the Act's requirement of disclosure. 710 S.W.2d at 517. Although that provision has been amended to create exceptions where "otherwise provided by law," the Court has not veered from its refusal to recognize judicial authority to create exceptions based on public policy.



[*26]

None of the arguments propounded by the City to justify its denial of access is well-founded. The City has failed to meet its burden of justifying nondisclosure of the records as required by Tenn. Code Ann. § 10-7-505(c).

VI. WILLFUL REFUSAL

The trial court considered the newspaper's request for fees in the context of the two separate lawsuits involved in its efforts to obtain access to the records. The court felt that the City's pre-emptive action in seeking a protective order from a court without jurisdiction was wrongful and resulted in additional fees, including the fees on appeal, that The Tennessean would not otherwise have incurred. The trial court reasoned that the City, after its refusal, should simply have waited for The Tennessean to file a petition for access under the Act and let the chancellor sort through the issues and determine what was protected.

The court indicated that the City would probably have lost in such an action, with the exception of any request for criminal investigative reports. Nonetheless, the court stated it felt that if the City had just said no, "that wouldn't have been any bad faith. I feel like The [*27] Tennessean would have been out that amount of attorney fees as well anyway." The court further stated:

I feel like that based upon reviewing this and the record, that the Tennessean would have been out anyway regardless of what would have happened unless the City would have just revealed all the records. I really don't think they could have turned over all of the records at that time, because there was somewhat of a criminal investigation pending. I feel like they were justified. Also, because there was a contract saying that they could not do it, I think they would have been justified at that point, and then let the Tennessean file the action in Chancery Court. n8



n8 The court also observed that the City would probably have been justified in simply refusing the request "out of ignorance, if nothing else." We respectfully disagree. A governmental entity cannot remain unknowledgeable of the Public Records Act and authority interpreting it and thereby immunize itself from liability for attorneys fees. A request for access to a public record imposes a duty on the entity to inform itself of its legal obligations. The Public Records Act ensures citizens broad access to information about the operation of their governments, and a governmental entity cannot impede that access without at least attempting to ensure it is acting in compliance with that Act. The attorneys fee provision of the Act furthers the purpose of broad access. Consequently, the requirement of that provision that the entity or official "knew that such record was public" must be read to include what a reasonably prudent governmental official should have known, i.e., at least the well-established law on the question.



[*28]

If a refusal of access was willful and knowing, then the party seeking access may be awarded "all reasonable costs involved in obtaining the record, including reasonable attorney's fees. . . ." Tenn. Code Ann. § 10-7-505(g). Thus, while we agree with the trial court's view of the City's detour through the Circuit Court, the City's liability for fees incurred in that action rests on the same conduct as its liability in the Chancery Court action: the validity of its refusal of access. The fees incurred by The Tennessean in the Circuit Court action were necessitated by the City's actions and were involved in obtaining the settlement agreement. However, so were the fees incurred in the action in Chancery Court which was properly initiated by The Tennessean with a petition for access.

In determining whether the refusal was justified, the court must decide whether the governmental entity knew the documents were public record and willfully refused to provide access. The Act places the burden on the refusing governmental official or entity to justify a refusal of access. Tenn. Code Ann. § 10-7-505(c). A public official can meet [*29] that burden and justify denial of access only by showing that the document at issue is not a public record or is exempt from disclosure by the exceptions enumerated in the Public Records Act or by an exception created in other law. See Holt, 710 S.W.2d 513.

Regardless of the sometimes varying statements expressed by this court as to a standard for determining whether the refusal was willful and knowing, n9 in actuality our courts have consistently applied the same analysis. That analysis emphasizes the component of the statutory standard that the entity or its officials know that the record sought is public and subject to disclosure. It evaluates the validity of the refusing entity's legal position supporting its refusal; critical to that determination is an evaluation of the clarity, or lack thereof, of the law on the issue involved. As our Supreme Court has stated, courts will not impute to a governmental entity "a duty to foretell an uncertain judicial future." Memphis Publishing Co. v. City of Memphis, 871 S.W.2d at 689. Accordingly, requests for fees have been denied where the question of whether the record sought was public was "not straightforward [*30] or simple," Id., 871 S.W.2d at 689, or involved "complex interpretation of controlling case law," Memphis Publishing Co. v. Cherokee Children & Family Services, 87 S.W.3d at 80.



n9 This court has, in some cases, defined the willful and knowing standard as synonymous with bad faith. Arnold, 19 S.W.3d at 789; Contemporary Media, 1999 Tenn. App. LEXIS 298, 1999 WL 2922264, at *4-5; Capital Case Resource Center of Tennessee, Inc. v. Woodall, 1992 Tenn. App. LEXIS 94, No. 01-A01-9104-CH-00150, 1992 WL 12217 (Tenn. Ct. App. Jan. 29, 1992) (no Tenn. R. App. P. 11 application filed). Despite the language used, however, the courts in each of these cases actually applied an analysis based on the state of existing law. The Arnold and Contemporary Media courts also adopted the Black's Law Dictionary definition of bad faith, which includes an element of fraud, sinister motive, dishonest purpose, ill will, or similar intent. Arnold, 19 S.W.3d at 789. We do not believe that inserting this element into the statutory standard is consistent with the Act or the purpose of the attorney fee provision. The equation of the knowing and willful statutory standard with bad faith was first made in the Capital Case Resource Center opinion, but that court did not adopt the definition used in the later opinions. In fact, the court analyzed the existence of bad faith by applying the Tenn. R. Civ. P. 11 standard of whether the argument for the refusal of access was warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. 1992 Tenn. App. LEXIS 94, 1992 WL 12217, at *9. Thus, the Capital Case Resource Center court defined bad faith as the absence of Rule 11 good faith in the context of the legal arguments made. In Combined Communications, 1994 Tenn. App. LEXIS 205, 1994 WL 123831 at *4, this court held that the Act's attorneys fee provision did not apply where a governmental entity's unsuccessful attempt to protect a public record from disclosure meets the Rule 11 standard. No reference was made to bad faith.



[*31]

In Arnold, the court concluded that the record did not support a finding that the City knew the documents were public records and willfully refused to disclose them, largely because the City's position that the documents were privileged was found to be correct, even though the court found the privilege had been waived. 19 S.W.3d at 789. In Contemporary Media, 1999 Tenn. App. LEXIS 298, 1999 WL 2922264, at *6, the court held that because of the existence of prior legal authority contrary to the City's position, "the City must be deemed to have known that it cannot make public records confidential by agreement."

Similarly, in Capital Case Resource Center of Tennessee, Inc., this court held that its ultimate decision that the record at issue was public "did not equate with a finding that, at the time he refused the request, respondent knew he was obligated to grant it," 1992 Tenn. App. LEXIS 94, 1992 WL 12217, at *8. This court noted that the respondent had refused the request only after being advised by the Attorney General that the file was not subject to public inspection. The court also found that at the time the request for access was denied, the state of the law was not clear [*32] as to the type of record involved, and, therefore, the court could not say that the respondent's arguments were not "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." The court held, "given the lack of controlling precedent in this state at that time, we find that the evidence of record does not preponderate against a finding that he did not know the file was subject to public inspection." 1992 Tenn. App. LEXIS 94, [WL] at *9. In Combined Communications, 1994 Tenn. App. LEXIS 205, 1994 WL 123831, this court also applied the Rule 11 standard for good faith legal arguments, concluded there was no basis for the City's claim the documents were privileged, and stated, "It is hard to imagine a situation better calculated to frustrate the public's right to be informed of the workings of government or to thwart the purpose of the Public Records Act." 1994 Tenn. App. LEXIS 205 at *8. Accordingly, the court found the City's action willful and awarded fees.

This approach of examining the grounds asserted for denial of access in view of existing law is consistent with another provision of the Act which provides that when a trial court orders disclosure, the records are to be [*33] made available to the petitioner unless there is a timely appeal and the trial court certifies that "there exists a substantial legal issue with respect to the disclosure which ought to be resolved by the appellate courts." Tenn. Code Ann. § 10-7-505(e)(2).

As explained earlier, we can find no basis in existing law for the City's refusal to provide the settlement agreement. To the contrary, existing authority, including the Contemporary Media holding, required disclosure, and we find no lack of clarity in that authority. Accordingly, we hold that the City's denial of access was not justified and the City is liable for all the reasonable fees the newspaper incurred in vindicating its right to access. That includes the fees incurred in the Chancery Court action as well as the Circuit Court action.

VII. CONCLUSION

The trial court's order awarding attorney fees and costs to The Tennessean is affirmed, but is modified to include all reasonable fees and costs incurred by the newspaper in its quest for the disputed public records. This case is remanded to the Chancery Court of Wilson County for a determination of the amount to be awarded and for [*34] other proceedings consistent with this opinion. Tax the costs on appeal to the City of Lebanon.

PATRICIA J. COTTRELL, JUDGE