Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 27, 2007

Appeals Court Affirms Denial of Fees to Newspaper in Open Records Lawsuit

The Nashville Post sued the Tennessee Education Lottery Corporation over its failure to produce the "unredacted termination letter of [an] individual who had been investigated for alleged workplace harassment" approximately one day after the Corporation refused to produce it. The trial court eventually ruled that the Corporation must produce the letter but declined to award attorneys' fees to the newspaper because the Lottery had not acted in "bad faith" as required by the statute. The paper sued.

In analyzing the provision, the appellate court determined that the statute's requirement of "willfulness" is equivalent to "bad faith."

"The “willful” element has been described as “synonymous to a bad faith requirement,”...and the standard for determining whether the refusal was willful and knowing has been expressed in varying ways. Nonetheless, 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 reiterated by our Supreme Court in Schneider, as quoted above, courts will not impute to a governmental entity “a duty to foretell an uncertain judicial future.” Accordingly, requests for fees have been denied where the question of whether the record sought was public was “not straightforward or simple,”...or involved “complex interpretation of controlling case law,”....Most of the cases on attorneys’ 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. Herein, the Lottery based its position of refusing disclosure on the attorney-client privilege and the attorney work product doctrine. In another case involving an attorney-directed investigation of allegations of harassment by a governmental employee, we have held that the attorney-client privilege and/or the work product doctrine apply, in appropriate circumstances, to create an exception to disclosure under the Act...." 

Further, held the appellate court, "As the language of the attorneys’ fee provision makes clear, there is another step in the fee award analysis. Even if the trial court makes a finding of knowledge and willfulness, the statute does not require the trial court to award attorneys’ fees. If the trial court makes such a finding, Tenn. Code Ann. §10-7-505(g) provides the trial court “may, in its discretion” assess costs and fees....

"A brief history of the sequence of events is helpful. On Thursday, January 5, 2006, the Lottery terminated Mr. Adams’ employment by giving him the Termination Letter in question. The next day, the Lottery issued a press release about the firing. On Sunday, January 8, 2006, the Nashville Post e-mailed the Lottery requesting Mr. Adams’ personnel file, agreements regarding his compensation, e-mails among and mobile phone records of various Lottery officials for the 6 month period prior to the request, and all documents about the investigation leading to Mr. Adams’ departure. While the Termination Letter was clearly within Nashville Post's request (as part of the personnel file or the investigation) it was not mentioned by name. This request involved a large number of files and documents. The Lottery responded on the same day of this request, approximately two hours after the request was e-mailed. The Lottery spokesperson replied that she would release a redacted copy of the personnel file; would need to get advice on the compensation agreements and the mobile phone records and would respond the next day; needed clarification on the e-mail request; and that access to information regarding the investigation was being denied as exempt from disclosure because of attorney-client privilege and work product doctrine. As to Mr. Adams’ personnel file, the Lottery responded that the personnel files would be produced with information made confidential by statute to be redacted. The Lottery's response, likewise, did not reference the Termination Letter. The Lottery's response also stated that the Lottery would contact the Nashville Post the next day, Monday, January 9 with more information. On Monday morning at 8:37 a.m., Nashville Post filed this Public Records Act lawsuit. While the Lottery provided the Nashville Post with a copy of a redacted Termination Letter after the petition was filed, the Lottery's attorneys later acknowledged at the January 18 hearing that it was not privileged since it had been seen by a third party, Mr. Adams. Given this sequence of events, we do not believe the trial court abused its discretion in refusing to award fees. The award of fees is appropriate when incurring those fees by bringing an action under the Act is necessary to gain access. By filing its petition at 8:30 Monday morning, Nashville Post did not allow time for any conversation or communication between the parties or their counsel. Nor did it allow any time for the Lottery to obtain further legal advice or clarification regarding the privileged nature of the Termination Letter. The Lottery acted promptly in responding to a request made on a Sunday and informed Nashville Post that it would provide more information on the next day. Nashville Post did not wait, but immediately filed its petition.  A petitioner is not required to communicate with a governmental entity to clarify positions or engage in discussions about possible fallacies in the entity's positions as to nondisclosure, but may file a petition upon the initial refusal to produce. The burden is then on the government to prove the documents are protected. However, failure to allow the governmental entity time to adequately assess what has been requested and failure to engage in any discourse with the governmental entity makes it difficult to argue that the governmental entity acted in bad faith when the first time the error of government's legal position is pointed out is after the petition has been filed. Here, the Lottery was given less than 24 hours, including a Sunday night, to respond to the request before Nashville Post filed suit. After the suit was filed, the Lottery continued in its efforts, albeit erroneous, to comply with Nashville Post's request by providing a redacted version of the Termination Letter. Even when governmental officials are proceeding in the best of faith, it takes time to understand the nature of the request and the breadth of documents that may be included, research applicable law on exceptions to the Act, make judgments often on questionable legal issues and then articulate an accurate response to the request. With many requests, such as the one made by Nashville Post, the analysis must be done quickly for numerous documents. The Termination Letter was not the only document requested but was one of many documents included in the request and turned over to the requestor. Based on the foregoing, we cannot conclude that the trial court abused its discretion in declining to award costs and attorneys’ fees under Tenn. Code Ann. §10-7-505(g). Costs of this appeal are assessed against the Nashville Post Company for which execution may issue if necessary."
Read the entire ruling here. The case is Nashville Post v. Tennessee Education Lottery Corp., No. M2006-01863-COA-R3-CV (2007).

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