IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 10, 2015 Session

ANDREW C. CLARKE v. CITY OF MEMPHIS

Appeal from the Chancery Court for Shelby County

No. CH13033371 Walter L. Evans, Chancellor

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No. W2014-00602-COA-R3-CV – Filed July 23, 2015

_________________________________

This appeal stems from a public records dispute, pursuant to the Tennessee Public 

Records Act, Tennessee Code Annotated § 10-7-101 et seq., litigated in the Shelby 

County Chancery Court. The trial court awarded Appellee/Cross-Appellant $3,500.00 in 

attorneys‘ fees and costs due to the City of Memphis‘ (―the City‖) failure to timely 

respond to Appellee/Cross-Appellant‘s open records request. The City appealed

concerning the propriety of the award of attorneys‘ fees. Appellee/Cross-Appellant 

cross-appealed concerning the amount of the fees awarded and additionally prayed for an 

award of attorneys‘ fees on appeal. Although we conclude that Appellee/Cross-Appellant 

is entitled to attorneys‘ fees, we modify the amount awarded from $3,500.00 to 

$2,340.00. Further, we deny Appellee/Cross-Appellant‘s request for attorneys‘ fees on 

appeal. 

Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Chancery Court Affirmed 

as Modified and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN 

STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Allan J. Wade, and Brandy S. Parrish, Memphis, Tennessee, for the appellant The City of 

Memphis.

Andrew Clarke, Memphis, Tennessee, Pro Se.
2

OPINION

I. Background and Procedural History

On February 15, 2013, Andrew C. Clarke (―Mr. Clarke‖), a Memphis attorney, 

wrote a letter to Senior Assistant City Attorney Chandell Ryan (―Ms. Ryan‖) seeking ―to 

inspect and potentially copy any and all documents provided to and/or received by the 

City of Memphis and the Memphis Police Department as a result of the Police Oversight 

Committee established by Mayor Wharton.‖ Mr. Clarke‘s letter indicated that his request 

was made pursuant to the authority in the Tennessee Public Records Act (―TPRA‖ or the 

―Act‖), and he noted that his request included, but was not limited to, ―all contracts, 

documents, payments, reports, [and] notes provided to and/or received from the City of 

Memphis, Bill Garrett, Bishop Mays[,] and Reverend Keith Norman pertaining to [the] 

evaluation and oversight committee from any source whatsoever.‖ Although Tennessee 

Code Annotated § 10-7-503(a)(2)(B) required the City to respond to Mr. Clarke‘s records 

request within seven business days, Mr. Clarke did not receive a timely response.

Given the absence of a response, Mr. Clarke contacted the City again on February 

27, 2013, to inquire into the status of his February 15 request. When still no response to 

his records request was forthcoming, Mr. Clarke contacted the City once more on March 

6, 2013. Mr. Clarke‘s March 6 email stated that if the requested records were not made 

available for inspection immediately, he would have no option but to file a petition for 

access and to ―seek appropriate attorney fees.‖

On March 7, 2013, Mr. Clarke commenced the present action by filing a petition 

for judicial review in the Shelby County Chancery Court. In addition to seeking access to 

the requested public records, Mr. Clarke prayed that he be awarded reasonable costs and 

attorneys‘ fees pursuant to the authority in Tennessee Code Annotated § 10-7-505(g). On 

March 8, 2013, Ms. Ryan emailed Mr. Clarke and acknowledged that the City was in 

receipt of his public records request. Ms. Ryan‘s email stated that additional time was 

needed to process Mr. Clarke‘s request, and she informed him that he could ―expect a 

follow up or any applicable records by March 22, 2013.‖ On March 22, 2013, Ms. Ryan 

contacted Mr. Clarke again and stated that the City still needed more time. She informed 

him that he could expect a response by March 25, 2013. By letter dated March 25, 2013,

Mr. Clarke finally received the City‘s response to his public records request. In pertinent

part, the City‘s response stated as follows:

We are in receipt of the enclosed request for public records. It appears that 

your request is the subject of pending litigation involving your client and 

the City of Memphis in the matter of Iris Wright v. City of Memphis. As 

this matter involves current litigation, it is subject to the rules of discovery 

under the Tennessee Rules of Civil Procedure.
3

* * * *

In an effort to ensure compliance with both the Tennessee Open Records 

Act and the Tennessee Rules of Civil Procedure, please process your 

request through the discovery process as part of the aforementioned 

litigation.

On the same day that he received the City‘s response, Mr. Clarke emailed Ms. Ryan to 

advise her that the basis for the City‘s objection was not supported by existing law. In 

particular, he quoted the Tennessee Supreme Court‘s decision in Konvalinka v. 

Chattanooga-Hamilton County Hospital Authority, which in part, states as follows:

It may very well be that the General Assembly neither intended nor 

anticipated that the public records statutes they enacted would be used by 

persons litigating with government entities to obtain records that might not 

be as readily available through the rules of discovery. However, at present, 

neither the discovery rules nor the public records statutes expressly limit or 

prevent persons who are in litigation with a government entity or who are 

considering litigation with a government entity from filing petitions under 

Tenn. Code Ann. § 10–7–505(a) seeking access to public records relevant 

to the litigation. A growing number of courts, construing public records 

statutes similar to ours, have decided that persons should not be denied 

access to public records solely because they are involved, or may be 

involved, in litigation with a governmental entity.

Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 360˗61 (Tenn. 

2008) (internal citation omitted).1 Mr. Clarke contacted the City again on March 26, 

2013, by sending an email to Deputy City Attorney Regina Newman (―Ms. Newman‖). 

In his email to Ms. Newman, Mr. Clarke asked the City to reconsider its position in light 

of the Konvalinka case.

On March 27, 2013, Mr. Clarke filed an amended petition for judicial review and 

access in the trial court. The amended petition outlined the history of the communication 

between the parties regarding Mr. Clarke‘s public records request and specifically 

averred that the City‘s March 25, 2013, response was not proper based on the applicable 

law. Like Mr. Clarke‘s original petition, the amended petition sought access to the 

requested documents and prayed for an award of reasonable costs and attorneys‘ fees 

pursuant to Tennessee Code Annotated § 10-7-505(g). Following the filing of the 

 

1

In addition to referencing the Konvalinka opinion, Mr. Clarke‘s email informed the City that the same 

arguments it used in objecting to this request had previously been addressed and rejected in another case 

against the City by a prior Shelby County Chancery Court decision several years earlier. The email stated 

that a copy of the order from this prior Chancery Court case was included as an attachment. 
4

amended petition, efforts were made by counsel for both parties to set the case for a 

hearing. The matter was eventually set to be heard on August 15, 2013.

Prior to the hearing, the City filed an answer to Mr. Clarke‘s amended petition. 

Moreover, by letter dated August 13, 2013, Assistant City Attorney Maya Siggers (―Ms. 

Siggers‖) provided Mr. Clarke with an updated response concerning his public records 

request. As before, the City maintained that it would not provide any records pertaining 

to matters that were the subject of pending litigation. The City also stated that it did not 

have any records related to a ―Police Oversight Committee‖ because such a committee 

had not been established. Nevertheless, Ms. Siggers informed Mr. Clarke that some 

records would be made available for his inspection beginning on August 14, 2013. 

Specifically, the letter stated that ―[c]ontracts, documents and reports provided to Bill 

Garrett, Bishop Mays and Reverend Keith Norman are available for review[.]‖

On August 15, 2013, the hearing on Mr. Clarke‘s petition for judicial review took 

place as scheduled. Mr. Clarke was represented by counsel at the hearing. At the 

conclusion of the hearing, the Chancellor made the following oral remarks:

Let me say this. It‘s without dispute that the City did not respond to the 

numerous efforts of Mr. Clarke to receive a response from the City 

regarding his request for information under the open meetings [sic] law. It 

would appear to the Court that the refusal or the non-response by the City 

of the request is the moving factor that required Mr. Clarke to file his 

petition and amended petition for access to public records that he was 

seeking, although it appears to the Court that the City has filed affidavits 

from Ms. Patrice Thomas and Ms. Regina Newman relative to the 

substance of the request for access to those public records establishing that 

no such committee or records exist. What the Court is going to do is to 

determine that the City was, in fact, late in filing a response to the open 

meetings [sic] law, but the Court will reserve for future determination as to 

what sanction in the way of attorney fees or otherwise will be appropriate 

for such delay.

An order memorializing the substance of the Chancellor‘s comments was entered on 

January 16, 2014.2 In pertinent part, the Chancellor‘s order stated that it ―will reserve for 

future determination as to what sanction in the way of fees or otherwise will be 

appropriate for [the City‘s] delay.‖

On August 20, 2013, Mr. Clarke filed a motion for attorneys‘ fees and costs

pursuant to the TPRA. In his motion, Mr. Clarke requested attorneys‘ fees in the amount 

of $11,685.00. The motion was supported by declarations from both himself and his 

 

2

In fact, we note that the Chancellor‘s oral ruling was specifically incorporated by reference. 
5

attorney, Thomas Greer, attesting to the reasonableness of the fees requested. The record 

does not reflect that the City filed any response disputing the reasonableness of the 

Petitioner‘s attorneys‘ fees and costs. The trial court heard the motion on January 16, 

2014. Although a transcript of that proceeding is not included in the record transmitted to 

us on appeal, the trial court did approve a statement of the evidence concerning the 

hearing. In describing the January 16 motion hearing, the statement of the evidence 

recited as follows: 

Regina Morrison Newman, Deputy City Attorney, testified for the City 

about the efforts made by her and the City Attorney‘s Office to improve the 

response time of the City to public records requests, since the issues arose 

with regard to Petitioner‘s request. Ms. Newman testified that since the 

dispute with Mr. Clarke arose, the City Attorney‘s office was charting the 

response times for all public records requests received by the City as 

evidenced by a chart prepared by the City Attorney‘s Office. This Chart 

was offered into evidence by the City during Regina Newman‘s testimony 

and admitted into evidence by the Court as Exhibit ―1‖ to the hearing. Ms. 

Newman also testified that the facts and statements contained in her 

Affidavit were true and correct as of the date of the hearing; her affidavit 

was offered into evidence by the City during Regina Newman‘s testimony 

and admitted into evidence by the Court as Exhibit ―2‖ to the hearing. 

Petitioner offered into evidence Declarations of Andrew C[.] Clarke and 

Thomas R. Greer relied on during Petitioner‘s statements to the Court, 

which were admitted into evidence by the Court as Exhibit ―3‖ to the 

hearing.

On February 21, 2014, the trial court entered an order awarding Mr. Clarke a $3,500.00 

judgment ―for attorney fees and other discretionary costs due to the failure of the City to 

timely respond to Petitioner‘s open records requests.‖ This appeal subsequently ensued.

II. Issues Presented

On appeal, the City raises one issue for our review, stated as follows:

1. Whether the trial court abused its discretion by awarding Plaintiff

Attorney‘s Fees?

Mr. Clarke‘s appellate brief raises two additional issues for our consideration, 

stated as follows:

1. The Trial Court erred by failing to provide Petitioner with all requested 

attorney fees.

2. Petitioner is entitled to attorney fees for work on the instant appeal.
6

III. Discussion

Under the TPRA, attorneys‘ fees are available pursuant to the terms outlined in 

Tennessee Code Annotated § 10-7-505(g). In pertinent part, that section provides as 

follows:

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.

Tenn. Code Ann. § 10-7-505(g) (2012) (emphasis added). By its terms, the attorneys‘ fee 

provision is ―a limited award provision.‖ Memphis Publ’g Co. v. City of Memphis, 871 

S.W.2d 681, 689 (Tenn. 1994) (citing Abernathy v. Whitley, 838 S.W.2d 211 (Tenn. Ct. 

App. 1992)). Because the award of attorneys‘ fees is within the discretion of the trial 

court, we review the trial court‘s actions for an abuse of discretion. Konvalinka v. 

Chattanooga-Hamilton Cnty. Hosp. Auth., 358 S.W.3d 213, 226 (Tenn. Ct. App. 2010) 

(citing Henderson v. City of Chattanooga, 133 S.W.3d 192, 215˗16 (Tenn. Ct. App. 

2003)).

As is evident from the statute, the Act provides that attorneys‘ fees may be 

awarded only if the trial court finds that the governmental entity, or agent thereof, acted 

willfully in refusing to disclose public records. Tenn. Code Ann. § 10-7-505(g) (2012). 

We recently discussed the standard required for willfulness under the TPRA in 

Friedmann v. Marshall County, No. M2014-01413-COA-R3-CV (Tenn. Ct. App. June 

24, 2015). Although in Friedmann we acknowledged that varying judicial statements had 

been made on the topic, we stressed that willfulness should be measured ―in terms of the 

relative worth of the legal justification cited by a municipality to refuse access to 

records.‖ Friedmann v. Marshall Cnty., No. M2014-01413-COA-R3-CV, slip op. at 13

(Tenn. Ct. App. June 24, 2015). In other words, the determination of willfulness ―should 

focus on whether there is an absence of good faith with respect to the legal position a 

municipality relies on in support of its refusal of records.‖ Id. at 12.

In The Tennessean v. City of Lebanon, this Court explained that courts employ the 

following analysis in assessing willfulness:

Th[e] 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.
7

The Tennessean v. City of Lebanon, No. M2002-02078-COA-R3-CV, 2004 WL 290705, 

at *9 (Tenn. Ct. App. Feb. 13, 2004). If a municipality denies access to records by 

invoking a legal position that is not supported by existing law or by a good faith 

argument for the modification of existing law, the circumstances of the case will likely 

warrant a finding of willfulness. The Tennessee Supreme Court‘s decision in Schneider 

v. City of Jackson aptly demonstrates this principle. In Schneider, newspaper reporters 

with The Jackson Sun sought access to field interview cards generated by police officers 

employed by the City of Jackson. Schneider v. City of Jackson, 226 S.W.3d 332, 334˗35 

(Tenn. 2007). When no response to the reporters‘ public records request was 

forthcoming, a petition for access was filed in the Madison County Chancery Court. Id. 

at 335˗36. In answering the petition, the City of Jackson alleged that the field interview 

cards were ― ̳privileged documents‘‖ because they ―concerned  ̳police tactics on 

investigations.‘‖ Id. at 336. The trial court rejected this argument and held that 

Tennessee law did not recognize the law enforcement privilege as an exception to the 

TPRA. Id. at 338. Although this Court reversed the trial court and adopted the law 

enforcement privilege as an available exception to public records requests, id. at 339, the 

Supreme Court granted permission to appeal and ultimately held that the law enforcement 

privilege did not exist. Id. at 344. In its analysis of whether the reporters were entitled to

attorneys‘ fees under the TPRA, the Schneider court appeared to focus on the validity of 

the legal position that the City of Jackson relied on in support of its refusal of the 

requested records. The Court stated:

We conclude that the record supports the trial court‘s determination that 

Petitioners are entitled to recover attorneys‘ fees and the trial court‘s award 

of attorneys‘ fees. Petitioners requested the field interview cards on two 

occasions, yet the City never reviewed the cards. Rather, the City 

maintained that the field interview cards were exempt ―period,‖ pursuant to 

a common law privilege that had neither been adopted in Tennessee nor 

even mentioned in a Tennessee case, and which had been implicitly 

rejected in Holt. Moreover, the City asserted the law enforcement privilege 

as if it were a blanket privilege, yet the Court of Appeals, and other 

jurisdictions in which it is applied, emphasize that the law enforcement 

privilege is a qualified privilege and does not under any circumstances 

provide blanket protection to governmental records. Thus, recognizing that 

at least a portion of the field interview cards were subject to disclosure 

would not have required the City ―to foretell an uncertain juridical future.‖ 

The record supports the trial court‘s finding [that] the City willfully refused 

to disclose the field interview cards.

Id. at 347 (internal citations omitted). In short, the analysis in Schneider indicates that an 

award of attorneys‘ fees will be warranted under the TPRA when a municipality denies a 

records request by invoking a legal argument that has no good faith basis in light of 

existing law.
8

Propriety of a Fee Award

Although the trial court exercised its discretion to award Mr. Clarke attorneys‘ 

fees in this case, we observe that the Chancellor‘s February 21, 2014, order is devoid of 

any reference to the City‘s willfulness, a standard that we have previously equated to an 

absence of good faith in the legal position used to support a denial of requested records. 

See Friedmann, slip op. at 12. Pursuant to Tennessee Rule of Civil Procedure 52.01, in 

all actions tried upon the facts without a jury, ―the court shall find the facts specially and 

shall state separately its conclusions of law and direct the entry of the appropriate 

judgment.‖ Tenn. R. Civ. P. 52.01. Despite the Chancellor‘s failure to make the specific 

finding of willfulness that is required to support an award of attorneys‘ fees pursuant to 

the TPRA, 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. See 

Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *5 (Tenn. 

Ct. App. Feb. 22, 2013) (citation omitted) (noting that, on occasion, the appellate court 

may ―soldier on‖ despite the absence of findings of fact and conclusions of law when the 

case involves only a clear legal issue or when the court‘s decision is readily 

ascertainable).

In considering the facts presented in the record, we conclude that the evidence 

supports a finding that the City acted willfully in this case. As noted, when the City 

finally responded to Mr. Clarke‘s public records request on March 25, 2013, it indicated 

that it would not process his request, but instead directed Mr. Clarke to pursue access to 

the requested records via the discovery process in other pending litigation. We note that 

the City‘s March 25 correspondence did not claim that any of the requested records were 

specifically exempt from inspection by either the TPRA or other applicable law. Rather, 

the City‘s response merely stated that Mr. Clarke‘s records request should be pursued in 

connection with the civil discovery process. Although Mr. Clarke subsequently informed 

the City that its objection was not a proper one, no records were made readily available. 

It was not until the eve of the hearing in this case—a date nearly six months after his 

February 2013 records request—that the City made some records available for Mr. 

Clarke‘s inspection.3

The City‘s initial objection in this case to Mr. Clarke‘s records request supports a 

finding that it acted willfully. Again, as the Tennessee Supreme Court commented in its 

2008 Konvalinka decision:

[A]t present, neither the discovery rules nor the public records statutes 

expressly limit or prevent persons who are in litigation with a government 

entity or who are considering litigation with a government entity from 

 

3 The hearing in this matter took place on August 15, 2013. By letter dated August 13, 2013, the City 

informed Mr. Clarke that certain records would be available for inspection beginning on August 14, 2013.
9

filing petitions under Tenn. Code Ann. § 10-7-505(a) seeking access to 

public records relevant to the litigation. A growing number of courts, 

construing public records statutes similar to ours, have decided that persons 

should not be denied access to public records solely because they are 

involved, or may be involved, in litigation with a governmental entity.

Konvalinka, 249 S.W.3d at 360˗61.4 Here, the City‘s March 25 response does not 

articulate a valid legal reason as to why Mr. Clarke‘s records request cannot be 

entertained. We know of nothing in the rules of discovery or the TPRA that would deny 

a citizen the right to make a public records request simply because that citizen is an 

attorney involved in litigation with the municipality. Certainly, the rules of discovery or 

other applicable law may circumscribe the ability of attorney-citizens to obtain records 

under certain circumstances, see Swift v. Campbell, 159 S.W.3d 565, 576 (Tenn. Ct. App. 

2004) (―The clear public policy of Tennessee, reflected in Tenn. Code Ann. § 40-30-

109(b), Tenn. S. Ct. R. 28, § 6(B)(3)(c), (C)(7), and Tenn. R. Crim. P. 16(a)(2), is that the 

documents described in Tenn. R. Crim. P. 16(a)(2) are not discoverable in either 

proceedings to which the Tennessee Rules of Criminal Procedure apply or separate 

proceedings under Tenn. Code Ann. § 10-7-505 as long as the criminal conviction 

associated with the records being sought is being collaterally attacked.‖), but there is no 

authority supporting a blanket prohibition. Moreover, as the Konvalinka court noted, a 

growing number of courts have expressly rejected such a proposition. Konvalinka, 249 

S.W.3d at 361. In this case, the City failed to provide a specific legal reason as to why 

Mr. Clarke should be denied records, but instead relied upon a hypothesized general 

barrier to access. Similar to the Tennessee Supreme Court‘s holding in Schneider, we 

conclude that such reliance is willful in light of existing law. See Schneider, 226 S.W.3d 

at 347 (affirming a finding of willfulness when a municipality (1) relied upon a privilege 

that had not been adopted in Tennessee and had been implicitly rejected by other caselaw 

and (2) applied the privilege as if it were a blanket privilege, contrary to the application 

of the privilege in other jurisdictions where it had actually been adopted). Accordingly, 

we conclude that the record supports an award of attorneys‘ fees against the City.

The Amount of Attorneys’ Fees To Be Awarded

Although we have concluded that an award of attorneys‘ fees is appropriate in this 

case, we must now consider the reasonableness of the attorneys‘ fees awarded by the trial 

 

4 Although the Konvalinka court was specifically reviewing issues related to a civil contempt proceeding 

and accordingly stated that the appeal before it did ―not provide an appropriate vehicle to determine 

whether persons who are in litigation with a governmental entity can be prevented from using the public 

records statutes to obtain information relevant to the litigation[,]‖ Konvalinka, 249 S.W.3d at 361, its 

comments regarding the TPRA are certainly pertinent to the present discussion. We note, as the 

Konvalinka court observed, that there is nothing in the TPRA or discovery rules imposing a general 

prohibition against a citizen from making a public records request just because that citizen is in litigation 

or contemplating litigation against a governmental entity.
10

court and the issues presented by Appellee‘s cross-appeal. In addition to asserting that 

the trial court erred by failing to provide him with all of his requested attorneys‘ fees, Mr. 

Clarke claims that he is entitled to attorneys‘ fees for work done on this appeal. We will 

first turn to the amount of the fee award ordered by the trial court.

In his August 20, 2013, motion for attorneys‘ fees, Mr. Clarke sought to recover a 

total of $11,685.00 in attorneys‘ fees. This amount, which was predicated on work 

performed by Mr. Clarke and his trial counsel, Attorney Thomas Greer, was supported by 

declarations attesting to the reasonableness of the fees requested. Whereas Mr. Clarke‘s 

declaration stated that he performed $9,345.00 in services in connection with his public 

records action, Attorney Greer‘s declaration attested to work performed in the amount of 

$2,340.00. These declarations were submitted into evidence at the January 16, 2014, 

hearing.

Although the trial court awarded $3,500.00 in attorneys‘ fees against the City, Mr. 

Clarke asserts that he is entitled to recover all of his requested fees due to the City‘s 

failure to file any response or submit any proof contesting the reasonableness or necessity 

of the amount requested. For the reasons discussed below, we conclude that Mr. Clarke 

is not entitled to any additional fees. As previously noted, Tennessee Code Annotated § 

10-7-505(g) provides that a ―court may, in its discretion, assess all reasonable costs 

involved in obtaining the record, including reasonable attorneys’ fees, against the 

nondisclosing governmental entity.‖ Tenn. Code Ann. § 10-7-505(g) (2012) (emphasis 

added). In construing this statute, as with any other, our goal is to give full effect to the 

General Assembly‘s purpose, ―stopping just short of exceeding its intended scope.‖ Lee 

Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010) (citations omitted). Because 

―[w]e . . . construe statutes as we find them,‖ Waldschmidt v. Reassure Am. Life Ins. Co., 

271 S.W.3d 173, 176 (Tenn. 2008), we ―must . . . begin with the words that the General 

Assembly has chosen‖ and ―give these words their natural and ordinary meaning.‖ Lee 

Med., Inc., 312 S.W.3d at 526 (citations omitted). We must presume that the General 

Assembly intended that each word be given full effect. Waldschmidt, 271 S.W.3d at 176.

Pursuant to the TPRA‘s attorneys‘ fees provision, ―reasonable attorneys‘ fees‖ 

may be awarded if they are a ―cost[] involved in obtaining the record[.]‖ Tenn. Code 

Ann. § 10-7-505(g) (2012). A ― fee‖ is commonly defined as ―[t]he charge to a client for 

services performed for the client[.]‖ Black’s Law Dictionary 154 (10th ed. 2014). A 

―cost‖ is commonly defined as ―[t]he amount paid or charged for something; price or 

expenditure.‖ Black’s Law Dictionary 422 (10th ed. 2014). Based on the language

utilized in Tennessee Code Annotated § 10-7-505(g), the statute contemplates that 

attorneys‘ fees may be recovered only if they are incurred in efforts to obtain requested 

public records. We see no authority in the statute that would permit a self-represented 

litigant—even a licensed attorney such as Mr. Clarke—to recover ―attorneys‘ fees‖ for

personal efforts expended on a public records case. Self-represented efforts involve no 

costs in the form of attorneys‘ fees because the incurring of such fees implies an agency 
11

relationship. See Black’s Law Dictionary 153 (10th ed. 2014) (defining an attorney as 

―one who is designated to transact business for another; a legal agent‖). Although Mr. 

Clarke is entitled to recover attorneys‘ fees he actually incurred as a cost, he is not 

entitled to recover attorneys‘ fees he billed while working on his own case. His rights to 

the public records under the TPRA are as a citizen; his status as an attorney does not 

automatically afford him rights superior to that of any other citizen under the Act. As 

such, he cannot recover any attorneys‘ fees unless he actually incurs such fees as a ―cost[] 

involved in obtaining the record[.]‖ Tenn. Code Ann. § 10-7-505(g) (2012).5 

Based on our interpretation of the statute, we must deny Mr. Clarke‘s assertion 

that the trial court should have awarded him additional attorneys‘ fees. In fact, we must 

conclude that the fees awarded to him exceed the recovery that is permitted under the 

 

5

From our research, we have failed to locate a Tennessee decision directly addressing this issue. We 

observe that in two cases where attorneys were proceeding pro se on appeal, this Court denied requests 

for attorneys‘ fees under the TPRA, although, unlike in this case, on the basis that the statutory standard 

of ―willfulness‖ had not been met. See Moncier v. Bd. of Prof’l Responsibility, No. M2012-00779-COAR3-CV, 2013 WL 2490576, at *9 (Tenn. Ct. App. June 6, 2013); Konvalinka v. Chattanooga-Hamilton 

Cnty. Hosp. Auth., 358 S.W.3d 213, 226 (Tenn. Ct. App. 2010). It is not entirely clear whether the 

attorneys/records requestors in those cases were represented by counsel at the trial court level. We note 

that, under the Freedom of Information Act, although there has not been a consensus among the federal 

Circuit Courts of Appeal as to whether a pro se lawyer is entitled to attorneys‘ fees, compare Falcone v. 

I.R.S., 714 F.2d 646, 647˗48 (6th Cir. 1983) (holding that pro se attorney plaintiffs are not entitled to 

attorneys‘ fees under the Freedom of Information Act), and Aronson v. U.S. Dep’t of Hous. and Urban 

Dev., 866 F.2d 1, 4˗6 (1st Cir. 1989) (agreeing with Falcone), with Cazalas v. U.S. Dep’t of Justice, 709 

F.2d 1051, 1057 (5th Cir. 1983) (―That a litigant attorney represents herself or himself does not preclude 

an award of attorney fees under the [Freedom of Information Act].‖), it appears most Circuits that have 

addressed the question recently have answered it in the negative. See Pietrangelo v. U.S. Army, 568 F.3d 

341, 344˗45 (2d Cir. 2009); Burka v. U.S. Dep’t of Health and Human Servs., 142 F.3d 1286, 1292 (D.C. 

Cir. 1998); Ray v. U.S. Dep’t of Justice, 87 F.3d 1250, 1252 (11th Cir. 1996). We note that the D.C. 

Circuit‘s decision in Burka was in contrast to a prior rule it had articulated in Cuneo v. Rumsfeld, 553 

F.2d 1360 (D.C. Cir. 1977), which had held that a self-represented party should not be denied attorneys‘ 

fees simply because he or she was an attorney. The Burka court explained that its change in position was 

influenced in large part by the United State Supreme Court‘s decision in Kay v. Ehrler, 499 U.S. 432 

(1991). In Kay, the Supreme Court concluded that a pro se attorney was not entitled to attorneys‘ fees 

under 42 U.S.C. § 1988. Kay, 499 U.S. at 437˗38. Although recognizing that the Kay decision dealt with 

a request for attorneys‘ fees under 42 U.S.C. § 1988 as opposed to a request for fees under the Freedom of 

Information Act, the Burka court observed that Kay ―implicitly rejected a distinction between fee claims 

arising under section 1988 and FOIA by referring with approval to Falcone v. IRS, 714 F.2d 646 (6th Cir. 

1983)[.]‖ Burka, 142 F.3d at 1289. The Burka court concluded that it was ―obvious‖ that the Supreme 

Court ―intended its ruling in [Kay] to apply beyond section 1988 cases to other similar fee-shifting 

statutes, particularly the one in [the Freedom of Information Act].‖ Id. Moreover, it noted that 

―[v]irtually all other courts that have considered this issue since Kay have reached a similar conclusion.‖ 

Id. Among the many reasons the federal Circuits cite in support of denying pro se attorneys a recovery of 

attorneys‘ fees are (1) a ―fear of creating a  ̳cottage industry‘ for claimants using the Act solely as a way 

to generate fees[,]‖ see, e.g., Falcone, 714 F.2d at 648 (citation omitted), and (2) a fear that treating pro se

lawyers differently from other pro se litigants would ―appear to be especially solicitous for the economic 

welfare of lawyers[,]‖ thereby threatening the image and public respect for the bar. Aronson, 866 F.2d at 

6. 
12

statute. As previously noted, Mr. Clarke requested an award of $11,685.00 in attorneys‘ 

fees. Of this amount, only $2,340.00 was attributed to the work of his attorney, Thomas 

Greer; the rest was attributed to fees billed by Mr. Clarke himself. Although the trial 

court had discretion to award attorneys‘ fees of up to $2,340.00, a cost corresponding to 

services Mr. Greer performed on behalf of Mr. Clarke, it did not have the authority to 

make an award of attorneys‘ fees in the amount of $3,500.00.6 Nevertheless, because we 

have determined that Mr. Clarke is entitled to recover attorneys‘ fees and no proof was 

submitted by the City contesting the reasonableness of the amounts billed by Mr. Greer, 

we hereby modify the trial court‘s award of attorneys‘ fees from $3,500.00 to $2,340.00. 

Although Mr. Clarke‘s last issue for review requests attorneys‘ fees for work 

performed on the instant appeal, our discussion above does not support his request for 

relief. Throughout the entirety of this appeal, both in his brief and at oral argument, Mr. 

Clarke has proceeded pro se and advocated on his own behalf. Without deciding whether 

a recovery of attorneys‘ fees would otherwise be appropriate if Mr. Clarke had actually 

incurred costs for legal representation on this appeal, we conclude that his request for 

relief must be denied.

IV. Conclusion

For the reasons explained above, we hereby find that the trial court did not abuse 

its discretion in awarding attorneys‘ fees to Appellee/Cross-Appellant. However, we

modify the trial court‘s award of attorneys‘ fees against the City from $3,500.00 to 

$2,340.00. We further conclude that Mr. Clarke is not entitled to any attorneys‘ fees for 

work performed on this appeal. Costs of the appeal are hereby assessed against the 

Appellant/Cross-Appellee, City of Memphis, for which execution may issue if necessary. 

This matter is remanded to the trial court for enforcement of the judgment, the collection 

of costs, and further proceedings as may be necessary and are consistent with this 

Opinion.

_________________________________

ARNOLD B. GOLDIN, JUDGE

 

6 An award of $3,500.00 would necessarily include fees attributable to amounts Mr. Clarke billed while 

working on his own case.