Rebecca Little filed a petition against the City of Chattanooga under the Tennessee Public Records Act after she was denied access to certain records related to the city's provision of services in Area 12, which had been annexed in 1972. Little contended that the city was obligated to publish annual reports on service progress per Tennessee Code Annotated section 6-51-108(b). The trial court found that the city did not outright refuse to disclose the records but had been slow in producing them. Since Little did not demonstrate that the city's delay was in bad faith, her request for attorney's fees was denied. The Court of Appeals reversed the trial court's judgment and remanded the case for further proceedings. The background details highlighted the city's commitments made during the Hicks v. City of Chattanooga case, where the annexation was deemed reasonable, emphasizing the city's promise to provide various municipal services to the annexed area.
Little submitted six requests under the Tennessee Public Records Act, specifically referencing Tennessee Code Annotated section 10-7-501 et seq. The requests aimed to obtain information about the development of sanitary sewer systems in an area annexed in 1972. Four of the requests were nearly identical, seeking various documents related to sewer development in designated Area 12 over different time frames: from 2003 to 2011, 1993 to 2002, 1983 to 1992, and from 1973 to 1982. The remaining two requests focused on identifying records connected to sewer plans in the annexed area, including details on parcels with installed sewers and the corresponding installation dates, as well as all relevant documents discussing sewer plans during that period. The requests were structured to provide sufficient detail for the records custodian to identify the specific documents sought.
Janina Muller was responsible for managing open records requests for the City during the period of inquiry by Little. Initially, the City believed that Little's June 7, 2011, requests were repetitive, as Muller noted they appeared to be the same request submitted six times. On June 10, she communicated this observation to Little and sought clarification regarding the requests. Little responded the same day, explaining the distinctions among them. Muller then asked for specific search terms to assist in retrieving the requested information.
On June 21, Muller provided Little with records received from Mike Patrick, including only one document, the 30th Annual Report on the Sanitary and Interceptor Sewer System, along with some sewer plans. Little pointed out that her request had sought all annual reports, but only one was provided. On June 30, she submitted a new request, focused on a specific area (Area 12) and limited to four city services, seeking various records related to sewer contracts and other municipal services.
Little sent this request to Cathy Watts, Muller's backup, and detailed the specific documents sought. After not receiving confirmation of her June 30 request by July 7, Little inquired via email and attached what she claimed was the request. However, the City indicated that the attachment differed from her original request and sought items previously provided. Muller, who was studying for the bar examination and working part-time, did not recall when she received the June 30 request and had yet to forward it to the relevant City departments, believing it resembled the earlier request.
Muller was absent from the office on July 7 and did not respond to Little's email until July 8, when she informed Little that she was processing the records request and expected the documents to be available within seven business days. She then reached out to several department heads, including Steve Leach from Public Works, to facilitate the request. The records request was sent in two separate documents, which led to confusion. Leach responded that he was unaware of the requests and assumed his staff was handling them. Muller interpreted his reply as confirmation that his staff would manage the records. She did not forward the June 30 request to the Parks and Recreation Department, believing it only pertained to Public Works.
On July 13, Muller reminded Leach of the approaching deadline for the records. After receiving no response, Little filed a petition for access to the records on July 26 under Tennessee law. Following this, Leach inquired about the possibility of seeking an injunction against Little, suggesting her motives were to harass staff. Deputy City Attorney Phil Noblett noted that Little was using the open records act to gather information for an ongoing lawsuit regarding deannexation due to sewer service issues. Subsequently, Leach directed his staff to search for records across a broader area, despite Little's request being specifically limited.
During a show cause hearing on August 4, the City claimed to have provided all responsive documents but had not disclosed missing requested emails. After the hearing, Muller requested specific search terms from Little to locate the emails, claiming the City needed these terms to proceed. On August 15, Little provided the descriptive terms from her June 30 request, asserting that the City should be better positioned to identify effective search terms. When the City conducted the email search, it used the terms from the June 30 request. On August 18, Little informed the court that the City had not produced records related to Contract 79 or any emails from before June 2006, and stated that around 75% of the documents received were not responsive to her requests.
Little received communication from the City Attorney indicating that the search for emails was restricted to the timeframe of June 30, 2011, to June 30, 2006, due to the City's adoption of MTAS guidelines, which require a five-year retention period for emails. Noblett clarified that regardless of the existence of older emails, the City would not search for them based on these guidelines. During court hearings, several City employees provided testimony regarding the handling of Little's records requests. Leach, overseeing the Public Works Department, admitted to an oversight in missing a second page of Little's request and only recognized the error after the lawsuit was filed. He stated that responsive materials were brought to the courthouse for review on August 4. Patrick, a sewer department employee, testified about his efforts to locate Contract 79 but found discrepancies in contract numbering. He initially believed he had provided all necessary records but later discovered four additional sketches relevant to Little’s requests. Deborah Mikel, the IT Manager, described her department's process for gathering both electronic and paper records, confirming that they worked 142 hours to compile documents before the August 4 hearing. She presented further materials at court, including correspondence and records from the Public Works central file.
Dennis Malone, Assistant City Engineer, reported that he spent approximately 100 hours gathering documents related to capital projects in Area 12, following a request from Little. He first encountered Little's June 30 request on August 1 and initially believed it pertained to all of Area 12, only realizing the request was limited to three specific roads just before his testimony. Lawrence Zehnder, Parks and Recreation Administrator, provided a document outlining the City’s facilities and parks, noting previous expenditures on Tiftonia area parks over the past 30 years. He did not produce construction plans for the John A. Patten Recreational Center, claiming Little's request focused on facility locations and services. Zehnder mentioned the possibility of relevant documents being stored in a city warehouse, but indicated ignorance about their existence or location, describing the warehouse as a junk room.
Leanne Tinker, Deputy CIO of the Information Services Department, explained that effective email searches require specific key terms and names due to the large volume of electronic information. She noted that the City retains emails for five years before they are overwritten. Steve Faulkner, Support Services Manager for the Information Services Department, described the process for searching email records, which requires search criteria, designated mailboxes, and date parameters. He conducted searches based on a list from the City Attorney’s Office, retrieving 755 emails from July 30, 2006, onward, which Little reviewed. A second search, requested by the trial court, yielded an additional 46 emails from before July 30, 2006.
On August 25, the trial court instructed counsel to file briefs by September 20. Little submitted her closing argument on September 20, while the City submitted its brief a day later. Little's counsel requested the court to disregard the City’s late brief during a hearing, where it was agreed to address the admissibility of two CDs by September 26. However, the CDs were found to be inaccessible, preventing timely objections. On September 30, Little’s counsel raised evidentiary issues, but also reargued unrelated matters.
On October 11, the trial court issued a memorandum denying Little's requests for attorney's fees and reimbursement for the CDs, allowing the clerk's costs against the City. The court noted that the City had not claimed any requested documents were not public records and had not refused to disclose them, despite their slow production. The court found no evidence of bad faith on the City’s part, attributing delays to issues including the similarity of Little’s requests, staff absences due to exam preparations, and a failure to properly manage the requests. Citing legal precedent, the court concluded that the City’s actions did not meet the threshold for bad faith, leading to the denial of Little's attorney’s fees request.
On November 9, Little filed a motion to alter or amend the order, seeking a determination on the completeness of the City’s document production and claiming that the City acted willfully in withholding documents, which would justify attorney’s fees.
Little contended that the Court incorrectly accepted the City’s late-filed brief. Following a hearing on November 21, the trial court issued a memorandum opinion and final order on December 7, which revised its October 11 order to indicate that Ms. Little did not receive all requested information from Chattanooga. The court upheld its prior decisions and mandated that the costs related to the motion be borne by Little. The trial court addressed the issue of alleged missing documents, stating that the City could not locate sewer contract number 79, and that additional documents related to parks and recreation were not part of Little's request. It emphasized that if Little was dissatisfied with the City’s response, she should have made more specific requests.
In its December 7 order, the court reviewed public records statutes, noting they had been amended since its last comprehensive assessment. Key statutes highlighted included Tenn. Code Ann. 10-7-503(a)(4), which indicates public officials are not required to sort through files to compile information but allow inspection of nonexempt records; and Tenn. Code Ann. 10-7-503(a)(5), which states officials are not required to create nonexistent records. Testimony revealed that sewer contract number 79 was untraceable, suggesting Little could utilize specific payment information to request further details or inspect records personally at the Public Works office.
Additionally, Tenn. Code Ann. 10-7-503(a)(7)(B) requires that requests for public records be detailed enough for the records custodian to locate them. While direct requests for public records can be quicker and less costly than formal litigation discovery, the statutory limitations may make pursuing discovery under the Tennessee Rules of Civil Procedure more advantageous for Little’s case, given the broad nature of her initial public records requests. Four of her requests were identical, differing only in the dates for the records sought.
The sixth request pertains to obtaining all sanitary sewer plans in Area 12 from 1972 to 2011. The court noted that Ms. Little's June 30, 2011 request mirrored her earlier June 7 request but limited it to specific contracts (79, 64B, and 64C), while her other requests sought records from 1972 to the present. The court indicated that Ms. Little's requests might necessitate sorting through files, which could render them invalid under Tenn. Code Ann. 10-7-503(a)(4). Additionally, the court clarified that it did not penalize Ms. Little for her attorney's lengthy letter or for not calling Mr. Noblett as a witness; the letter served to illustrate waiver and revisiting prior issues. The court pointed out that if Ms. Little could submit arguments post-September 20, 2011, then it was reasonable for it to consider Chattanooga’s brief submitted shortly before. Chattanooga was not permitted to recover production fees from Ms. Little, indicating no punitive intent from the court. The court reflected on the importance of civility in legal representation, noting tensions between attorneys during the proceedings. There was discussion regarding the applicability of Tenn. Code Ann. 6-51-108(b) to a 1972 ordinance, but the court concluded that the Public Records statutes do not obligate the government to produce non-existent records, rendering 6-51-108(b) irrelevant to Ms. Little’s case. The court also addressed Chattanooga's email retention policy, which deletes emails older than five years based on MTAS recommendations, while Ms. Little claimed some emails older than that were still available.
Chattanooga is advised by the court to broaden its public records request timeframe beyond five years to potentially include older emails. Tennessee statutes authorize the municipal technical advisory service to create records retention manuals that guide municipal officials in establishing retention schedules. There is no legal requirement for governmental entities to maintain all public records indefinitely.
The issues raised by Little in the appeal include: the trial court's application of legal standards for attorney fee awards in public records cases, the court’s discretion regarding the appropriateness of attorney's fees, the acceptance of the city's closing argument brief, and the denial of Little's motion for broader document production.
On appeal, the trial court's factual findings are presumed correct unless contrary evidence is presented, while legal issues are reviewed de novo. Tennessee Code Annotated section 10-7-503 establishes a broad right to public access to governmental records, mandating that such records be available for inspection during business hours, unless otherwise exempted by law. The court emphasizes that the public records law should be interpreted liberally to promote government accountability and public oversight, requiring custodians to promptly make records available or respond to requests within seven business days.
The legal document outlines the obligations of a governmental entity in responding to public records requests under Tennessee law. It specifies that a failure to respond as required by Tennessee Code Annotated section 10-7-503(a)(2) constitutes a denial of the request, allowing the requester to seek judicial review under section 10-7-505. The court is instructed to interpret these provisions broadly to ensure maximum public access to records. If a governmental entity knowingly and willfully refuses to disclose a public record, it may be liable for the requester’s reasonable costs and attorney fees.
In this case, the City acknowledged its failure to respond to Little’s request within the mandated seven business days but contended that it did not act willfully or in bad faith. The burden of proof lies with the City to justify its lack of response. The document reiterates that the requested records are public and should have been available for inspection or, if that was not practicable, responded to in a timely manner, including a written denial or an explanation of the time needed to produce the records. The City’s failure to respond appropriately amounted to a denial, prompting Little to pursue her legal action. The excerpt references the case of Contemporary Media, Inc. v. City of Memphis, which clarifies that not all refusals to disclose records are wrongful, emphasizing a 'knowing and willful' standard synonymous with bad faith. The definition of bad faith includes neglecting duties driven by self-interest rather than honest mistakes.
The City’s failure to produce public records was determined to be knowing and willful. Evidence indicated that City officials believed the records were being improperly requested by Little, who was using the Public Records Act to aid another lawsuit involving her father. Consequently, legal counsel for the City was asked to seek an injunction against disclosing the records. The City incorrectly claimed in court that all documents had been produced, despite not having begun the search for responsive emails. The critical issue is whether the City was aware the records were public and intentionally chose not to disclose them. Under Tennessee Code Annotated section 10-7-505(g), if a court finds that a governmental entity willfully refused to disclose a public record, it may, at its discretion, assess reasonable costs, including attorneys' fees, against the entity. While some argue against including a "bad faith" element in the assessment of fees, the statute allows for discretionary awarding of fees even when knowledge and willfulness are established. The trial court's decision-making is subject to an abuse of discretion standard on appeal, which allows for review only if the court applied an incorrect legal standard or reached an illogical decision.
An award of attorney's fees under Tennessee Code Annotated section 10-7-505(g) is discretionary for the trial court, and its determination will only be overturned if there is an abuse of discretion. In this case, the trial court did abuse its discretion by failing to award fees to Little, as it improperly focused on the quantity of documents produced rather than the adherence to procedural requirements or the justification for withholding records. The court concluded that the City deliberately withheld documents, undermining Little's right to access public records, for which she should be compensated.
Little contended that the trial court erred by considering the City's late closing argument and brief. The court justified this decision by indicating that the case was not ready for submission as anticipated on September 21, 2011, and that Little had opportunities to review evidence and present her arguments. Despite Little's claims of prejudice due to the late filing, the court's choice to accept the City's brief was not found to be an abuse of discretion, as the record indicated Little had sufficient opportunity to respond thereafter.
Additionally, Little asserted that the City did not produce many requested records, including emails from top administrative officers and various financial documents related to contracts and projects.
The City is aware of the records requested by Little and is instructed to collaborate with her to identify any further documents that may fulfill her requests. The trial court has ordered the City to allow Little to inspect non-exempt records at her convenience, without the presence of City employees. Specifically regarding Contract 79, the court states that Little should visit the appropriate Public Works office to search for the document, acknowledging it might be listed under a different name. Requests should not necessitate sorting through files, as such actions are deemed improper under Tennessee Code Annotated section 10-7-503 (a)(4). Additionally, the City is advised not to restrict the timeframe for its public records search. The judgment of the trial court is reversed, and the case is remanded to determine the amount of attorney fees to be awarded and for further proceedings consistent with this opinion, with costs of the appeal assigned to the City of Chattanooga.
