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Willful Violation of Tennessee FOIA Occurs by Requiring Unauthorized Fees

A Tennessee state appellate court reversed a trial court’s ruling that a custodian of records’ denial of access to public records was “not willful." The court found the denial was “willful." Where the prior ruling prevented the trial court from exercising its discretion to consider awarding costs and attorney fees, the court remanded the case back to the trial court to determine if costs and fees should be awarded for the trial court proceedings. The appellate court also awarded costs and fees for proceedings on appeal.

Rickey Taylor, a citizen of Lynnville, filed a lawsuit against the town because it unlawfully denied his repeated requests to review public records of no charge. His first request was orally presented to the town’s mayor in December of 2015. The mayor admitted that a request was made, but he disputed the time and place. He asserted that the request was made outside of business hours. Per Tennessee Public Records Act (TPRA), Tenn. Codes. Ann. §10-7-503(a)(2)(A) (T.C.A.), the defendants were only required to provide access to public records “during business hours”. The court found that no denial occurred for that December 2015 event because it was not made during business hours.

On January 6, 2016, Taylor submitted a written request to inspect specified records. The custodian gave written permission to review the records on January 11 or 13, following Taylor’s payment of a $150 upfront charge lodged to cover labor ($12 an hour) and cost of copies ($0.30 per copy). Taylor refused to pay the upfront charges because T.C.A. §10-7-503 (a)(7)(A) prohibited assessing a charge unless required by law. Taylor appeared in person on January 20, 2016 to inspect the specified records. The custodian informed him that she was too busy at that time to allow him to inspect the records, but she promised him that if he would return that afternoon, he would be allowed to inspect the records.

When Taylor returned that afternoon along with his attorney, the custodian refused to give him access because she was unable to contact her attorney and Taylor had not paid the $150 upfront charges. On February 16, 2016, Taylor filed a petition moving that he be allowed to exercise his right to inspect the public record without payment of an upfront charge, and that he be awarded costs and attorney fees per T.C.A. §10-7-505(g).

During a March 9, 2016 show cause hearing, defendants' counsel gave Taylor a copy of the records free of charge, although Taylor never requested a copy. On June 8, 2016, the circuit court ruled that the defendants did deny access to the public records. It further held that the denial was not willful because the custodian’s delay was based on her efforts to contact her counsel. As the court found the denial was not willful, it held that it had no authority to grant an award of costs and fees.

Taylor appealed the appellate court ruled that per T.C.A. §10-7-503(a)(2)(A), he had a clear legal right to inspect the record. The record on appeal led the court to find that the specified records were not exempt from disclosure, and it was not impracticable for the custodian to promptly make the records available because she had already authorized the review on January 11, 13, and 20, 2016. The court concluded that the primary reason for the denial was Taylor’s failure to pay the $150 upfront fee. The court deemed that charge unlawful where Taylor never requested copies of the records, only access to review them, and T.C.A. §10-7-503(a)(7)(A) expressing prohibited such a charge.

The court went on to decide and clarify standards for determining if the denial was willful. It recognized division even in the appellate court’s panel. The court admitted that some believe the Tennessee Supreme Court adopted a “bad faith” standard of review in Schneider v. City of Jackson, 226 S.W. 3d 332 (Tenn. 2007). Such standard would require a showing of dishonesty and ill will in denying access to the records. The court rejected that standard of review and classified that the proper standard was the one relied on in Clarke v. City of Memphis, 473 S.W. 3d 285 (Tenn. Ct. App. 2015). The court must determine if the legal reason for denial of access is supported by existing law. In this case, denial based on failure to pay an unlawful charge did not support the denial. The court also found that inability to contact the town’s attorney did not justify the denial where there was no claim that the records were exempt from disclosure, and the custodian had already confirmed that prompt access was not impracticable. Accordingly, the court ruled the denial was willful.

The appellate court ruled that its reversal required it to remand the case to the trial court for reconsideration of the need to award costs and attorney fees. Per T.C.A. §10-7-505(g), the court’s reversal authorized accessing costs and fees. The court added that the fact that the portions of the record in question had been copied and provided to Taylor before the trial court’s June 8, 2016 ruling was not controlling. Taylor was forced to file a lawsuit to obtain access to public records, so the government’s actions caused the legal action. The appellate court granted the costs and fees on appeal and remanded for the award of costs and fees at the trial court level.

See: Taylor v. Town of Lynnville, Tennessee Court of Appeals, S.W. Zd (Tenn. Cr. Appeals 2017)

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