IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

July 27, 2010 Session

THOMAS GREER v. CITY OF MEMPHIS, TENNESSEE

Direct Appeal from the Circuit Court for Shelby County

No. CT-005049-00 Charles McPherson, Special Judge

No. W2010-00337-COA-R3-CV - Filed August 19, 2010

This case involves the award of attorney’s fees and costs against the Appellant City of

Memphis for its alleged failure to comply with the Appellee’s document request, made under

the Tennessee Public Records Act, Tenn. Code Ann. §10-7-501 et seq. The trial court

awarded fees and costs against the City under Tenn. Code Ann. § 10-7-505(g), which

requires a finding of knowledge and willful failure to comply with the public records act.

Based upon the record, we conclude that the trial court abused its discretion because: (1) the

trial court made no specific finding concerning the City’s alleged willful failure to comply,

and (2) the record does not support a finding of willful failure to comply on the part of the

City. Reversed.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed.

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which DAVID R. FARMER, J.,

and HOLLY M. KIRBY, J., joined.

Philip E. Oliphant, Memphis, Tennessee, for the appellant, City of Memphis.

R. Sadler Bailey and Wilton H. McNeely, Memphis, Tennessee, for the appellee, Thomas R.

Greer.

OPINION

The Tennessee Public Records, Tenn. Code Ann. §10-7-501 et seq. (the “Act”),

provides, in relevant part, that:

(2)(A) All state, county and municipal records shall, at all times

during business hours, which for public hospitals shall be during
the business hours of their administrative offices, be open for

personal inspection by any citizen of this state, and those in

charge of the records shall not refuse such right of inspection to

any citizen, unless otherwise provided by state law.

(B) The custodian of a public record or the custodian's designee

shall promptly make available for inspection any public record

not specifically exempt from disclosure. In the event it is not

practicable for the record to be promptly available for

inspection, the custodian shall, within seven (7) business days:

(i) Make the information available to the

requestor;

(ii) Deny the request in writing or by completing

a records request response form developed by the

office of open records counsel. The response shall

include the basis for the denial; or

(iii) Furnish the requestor a completed records

request response form developed by the office of

open records counsel stating the time reasonably

necessary to produce the record or information.

Tenn. Code Ann. §10-7-503(a)(2).

Pursuant to the foregoing statute, on August 20, 2009, Appellee Thomas R. Greer

(“Mr. Greer”) submitted a request to the Appellant City of Memphis (the “City”). By his

request, Mr. Greer sought to inspect and photocopy any and all records “pertaining to any

monetary payments made by the City of Memphis in conjunction with the City of Memphis’

attempt to collect unpaid taxes from Lehman Brothers Holdings, Inc. in the United States

Bankruptcy Court....” Despite the City’s statutory obligation to respond to the records

request within seven days, Tenn. Code Ann. §10-7-503(a)(2)(B), Mr. Greer received no

response from the City concerning his request. Accordingly, on October 9, 2009, Mr. Greer

mailed a second records request to the City, by certified mail, return receipt requested, again

asking to inspect and photocopy any documents pertaining to the Lehman Brothers matter.

According to the record, the City received Mr. Greer’s second request and signed the

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certified mail receipt on October 13, 2009. However, again Mr. Greer received no response

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from the City. Two weeks later, on October 27, 2009, Mr. Greer filed a petition with the

Circuit Court at Shelby County, seeking access to public records and judicial review of the

alleged denial of his request by the City. In his petition, Mr. Greer specifically averred that

the City’s “refusal to produce the requested records is willful and in bad faith, which justifies

the assessment[] of all reasonable costs and attorney fees associated with this action.”

On November 6, 2009, Assistant City Attorney Philip Oliphant filed a notice of

appearance with the trial court, indicating that he would be representing the City in this

matter. According to Mr. Greer’s brief, as of November 16, 2009, he still had not received

any response from the City regarding his multiple requests to view the Lehman Brothers

documents. On November 16, 2009, an order was entered, transferring the case from

Division V to Division VII of the Circuit Court. Following entry of the November 16 order,

Mr. Greer’s attorney spoke with Mr. Oliphant to inform him that Mr. Greer would be seeking

a hearing date for his petition. During this conversation, Mr. Oliphant informed Mr. Greer’s

attorney that he was faxing over a preliminary draft of the City’s response to Mr. Greer’s

petition, and that a City employee had mailed Mr. Greer a response to his records request on

the previous Friday, November 13, 2009. Following this conversation, this piece of mail

was, in fact, delivered to Mr. Greer’s office. The City’s submission consisted of four pages

of records pertaining to the Lehman Brothers matter.

On November 17, 2009, the City filed its response to Mr. Greer’s petition, along with

the Affidavit of Bridgett Handy-Clay in support thereof. According to her Affidavit, Ms.

Handy-Clay is the Public Records Coordinator for the City; as such, she is responsible for

fulfilling all records requests received by the City. Both the response and Ms. Handy-Clay’s

affidavit assert that the delay in providing Mr. Greer the requested records was not willful,

but rather due to confusion caused by the transfer of the responsibility of responding to

public records requests from Ms. Handy-Clay’s office to another office, and then back to her

office, as well as by the change of administrations in the mayor’s office. Further, the

response and affidavit assert that on October 13, 2009, Ms. Handy-Clay received notice from

Mr. Greer that he had not received a response to his August 20, 2009 request; that upon

receiving this notice Ms. Handy-Clay investigated the matter and determined that the request

had not been responded to; and that on November 13, 2009 Ms. Handy-Clay sent the

requested records to Mr. Greer via certified mail.

A hearing on Mr. Greer’s petition was held on January 11, 2010. On January 15,

 The receipt is signed by Kenya Kirkwood. 1

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2010, the trial court entered its Order, which provides:

THIS CAUSE CAME TO BE HEARD...upon Thomas R.

Greer’s Petition for Access to Public Records and to Obtain

Judicial Review of Denial of Access, and the arguments of

counsel for the respective parties, from all of which this

Honorable Court finds that the Petition is well taken and is

GRANTED. The Court Orders as follows:

1. The City of Memphis, Tennessee shall pay to the Petitioner,

Thomas R. Greer, reasonable attorney’s fees associated with the

bringing of this action in the amount of Seven Hundred and

Fifty Dollars ($750).

2. The City of Memphis, Tennessee shall pay all court costs

associated with the bringing of this action pursuant to Tennessee

Code Annotated §10-7-505(g).

The City appeals, raising one issue for review as stated in its brief:

Under Tennessee law, attorney’s fees may be imposed when a

municipality’s failure to disclose a public record is willful and

in “bad faith.” The City of Memphis’ delay in fulfilling

Appellee’s records request was undisputedly inadvertent. Did

the court err in imposing attorney’s fees for the delay in

fulfilling Appellee’s request?

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The trial court granted Mr. Greer’s request for attorney’s fees and costs pursuant to

Tenn. Code Ann. § 10-7-505(g), which provides:

If the court finds that the governmental entity, or agent thereof,

refusing to disclose a record, knew that such record was public

As stated in its appellate brief, although the City maintains that the court’s January 11, 2010 grant 2

of Mr. Greer’s petition for access to public records was improper because the City had fulfilled Mr. Greer’s

public records request on November 13, 2009, thus allegedly rendering the matter moot, the City indicates

that it does not wish to appeal this portion of the trial court’s decision. Consequently, we will only address

the trial court’s grant of attorney’s fees under Tenn. Code Ann. §10-7-505(g).

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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....

This attorney fee provision of the Act is, “by its terms[,] a limited award provision.”

Memphis Publishing Co. v. City of Memphis, 871 S.W.2d 681, 689 (Tenn.1994). The

decision whether to award attorney’s 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 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.” Eldridge v.

Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted). A trial 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.” Id. The abuse

of discretion standard does not permit the appellate court to substitute its judgment for that

of the trial court. Id.

While our Supreme Court did not elaborate, in Memphis Publishing Co. v. City of

Memphis, on what it meant by the descriptive term “limited,” case law flowing from that

decision has clarified the issue. First, an award of fees under the Act must meet the threshold

requirement that the trial court find that the governmental entity or official “knew” the record

was public and “willfully” failed to disclose it. In other words,

... the Public Records Act does not authorize a recovery of

attorneys' fees if the withholding governmental entity acts with

a good faith belief that the records are excepted from the

disclosure. Moreover, in assessing willfulness, Tennessee

courts must not impute to a governmental entity the “duty to

foretell an uncertain juridical future.”

Schneider v. City of Jackson, 226 S.W.3d 332, 346 (Tenn. 2007) (quoting Memphis Publ'g

Co. v. City of Memphis, 871 S.W.2d at 689).

The “willful” element has been described as “synonymousto a bad faith requirement,”

Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App.1999). In Arnold, the

court quoted Black's Law Dictionary to conclude that “willful,” being synonymous with “bad

faith,” is not simply bad judgment or negligence but “implies the conscious doing of a moral

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wrong because of dishonest purpose or moral obliquity.” Id. at 789; accord Henderson v.

City of Chattanooga, 133 S.W.3d 192, 215-16 (Tenn. Ct. App. 2000). Likewise, in

Contemporary Media, Inc., v. City of Memphis, No. 02A01-9807-CH00211, 1999 WL

292264, *4 (Tenn. Ct. App.1999), the Court stated that “[n]ot every refusal to disclose a

public record is wrongful. The statute expresses a ‘knowing and willful’ standard which is

synonymous with ‘bad faith.’” Id. (quoting Capital Case Resource Ctr. Of Tennessee, Inc.

v. Woodall, No. 01-A-019104CH00150,1992 WL 12217 (Tenn. Ct. App. 1992)).

Although the standard for determining whether the refusal was willful and knowing

has been expressed in varying ways, 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. See, e.g.,

Schneider, 226 S.W.3d at 346-47. Critical to that determination is an evaluation of the

clarity, or lack thereof, of the law on the issue involved. As reiterated by our Supreme Court

in Schneider, as quoted above, courts will not impute to a governmental entity “a duty to

foretell an uncertain juridical future.” Accordingly, requests for fees have been denied where

the question of whether the record sought was public was “not straightforward or simple,”

Memphis Publ'g Co. v. City of Memphis, 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.

Most of the cases on attorney’s fees under the Act have involved appellate review of

an award of fees, and the emphasis has been on the good faith involved in the assertion that

the records at issue were exempt from disclosure. That is not the case in the instant appeal.

Here, the City does not assert that the documents sought by Mr. Greer were exempt from

disclosure; rather, the City asserts that its admitted failure to disclose these documents was

inadvertent. In other words, the City argues that it did not act in bad faith in denying Mr.

Greer’s request. In full context, the Arnold Court defined “bad faith” as:

[t]he opposite of ‘good faith,’ generally implying or involving

actual or constructive fraud, or a design to mislead or deceive

another, or a neglect or refusal to fulfill some duty or some

contractual obligation, not prompted by an honest mistake as to

one's rights or duties, but by some interested or sinister motive.

[The t]erm ‘bad faith’ is not simply bad judgment or negligence,

but rather it implies the conscious doing of a wrong because of

dishonest purpose or moral obliquity; it is different from the

negative idea of negligence in that it contemplates a state of

mind affirmatively operating with furtive design or ill will.

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Arnold, 19 S.W.3d at 789 (citation omitted).

As set out above, the trial court did not make a specific finding of willfulness on the

part of the City in its January 15, 2010 order. Prior to awarding attorneys fees, under Tenn.

Code Ann. §10-7-505, the trial court must make a finding that the governmental entity acted

willfully in withholding the requested records, i.e. with bad faith. Arnold, 19 S.W.3d at 789.

In reviewing the record, the only basis for the court’s decision to award attorney’s fees under

Tenn. Code Ann. § 10-7-505(g) is its statement from the bench, which statement is addressed

to the City’s attorney, Mr. Oliphant, to wit:

THE COURT: I[’ve] got to disagree with you, [Mr.] Oliphant.

I think when you get a request for something that you’re legally

entitled to last August and they get them just recently, I think

that’s more than–

I think that’s a little bit more than dilatory. We’ll award

you a $750 attorney fees as part of the cost of this cause.

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The Court’s statement that the City’s actions are “a little bit more than dilatory”

simply does not indicate that the trial court found that the City acted willfully under

Tennessee law. Arnold, 19 S.W.3d at 789. In the absence of a specific finding that the City

acted willfully (as opposed to negligently, carelessly, or dilatorily), we must conclude that

the trial court abused its discretion in awarding Mr. Greer’s attorney’s fees under Tenn.

Code Ann. § 10-7-505(g).

Moreover, we have conducted our own independent review of the record to determine

if the evidence presented at trial would support a finding that the City acted willfully in not

producing the requested records within the statutory time period. After reviewing the record,

we find that the facts contained therein would not support a finding of willfulness in the

instant case. We first note that the record is very sparse, consisting only of the Technical

Record, which contains Mr. Greer’s petition, and the City’sresponse, along with the attached

affidavit of Ms. Handy-Clay. There is also a three-and-one-half page transcript of the

January 11, 2010 hearing; however, the transcript is comprised only of the respective

arguments of the parties’ attorneys as neither party attempted to introduce any testimony at

the hearing. It is well settled that allegations contained in pleadings are not evidence.

Hillhaven Corp. v. State ex rel. Manor Care Inc., 565 S.W.2d 210, 212 (Tenn.1978). Also,

the arguments of counsel and the recitation of facts contained in a brief, or a similar pleading,

We note that these comments from the bench are not incorporated, by reference, into the final 3

order.

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are not evidence. Price v. Mercury Supply Co., Inc., 682 S.W.2d 924, 929 n. 5 (Tenn. Ct.

App.1984). The same is true of statements made by counsel during the course of a hearing,

trial, or argument in this Court. Trotter v. State, 508 S.W.2d 808, 809 (Tenn. Crim.

App.1974); Davis v. State, 673 S.W.2d 171, 173 (Tenn. Crim. App.1984).

As set out above, the finding of willfulness on the part of a municipality in failing to

disclose public records is a high standard, requiring more than mere inadvertence, mistake,

or negligence. Rather, the finding that a municipality willfully withheld public documents

requires evidence that the withholding entity acted consciously in furtherance of a dishonest

purpose or moral obliquity. Arnold, 19 S.W.3d at 789. While it may be possible in certain

circumstances for the passage of time to support a finding of willfulness, we do not find that

to be the case in this situation. Any inference of willfulness that arose as the result of the

City's failure to timely produce the requested documents was negated by the affidavit filed

by Ms. Handy-Clay. Because the record lacks any evidence to support a finding of

willfulness, we conclude that the trial court abused its discretion in awarding fees against

the City.

For the foregoing reasons, we reverse the order of the trial court awarding Mr.

Greer attorneys fees. Costs of this appeal are assessed against the Appellee, Thomas R.

Greer, for which execution may issue if necessary.

________________________________

J. STEVEN STAFFORD, JUDGE

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