The Tennessee Court of Appeals recently upheld the Davidson County Chancellor Carol McCoy’s ruling that the plaintiff was not entitled to recover attorneys’ fees and costs associated with filing a lawsuit to obtain public records from the Metro-Nashville Police Department (MNPD).
In Custis v. Metro. Nashville Police Department, the plaintiff (through her attorney) had submitted an open records request on December 2, 2010, and after a few months of additional communication (but no documents), filed a Petition on March 17, 2011 in an attempt to obtain the documents. The documents were ultimately produced on April 25, 2011.
The Tennessee Public Records Act requires that all state, county, and municipal records be open for personal inspection during business hours and provides that the keeper of a public record should “promptly make available” any public record not specifically exempt from disclosure. [See Tenn. Code Ann. § 10-7-503(a)(2].) The act also provides that if the court finds that the governmental entity responsible for the record “knew the record was public and willfully refused to disclose it,” the court may assess all reasonable costs involved in obtaining the record, including reasonable attorneys’ fees, against that responsible entity. [See Tenn. Code Ann. § 10-7-505(g).] The Tennessee Supreme Court previously adopted a “bad faith” analysis in deciding whether to award attorneys’ fees under the Public Records Act. [See Schneider v. Jackson, 226 S.W.2d 332 (Tenn. 2007).]
In the case referenced above, the trial court found that although there was a long delay in producing the requested documents, uncontradicted evidence suggested that the delay was caused by carelessness, and there was no bad faith or willfulness on the part of the MNPD. As a result, the plaintiff was not entitled to recover their costs. The Court of Appeals did specifically mention the facts that the MNPD did not flatly refuse to produce the documents, but there was a mere delay in answering a voluminous records request, as being less prejudicial to the party.
Although the threat of attorneys’ fees and costs for the failure or refusal by a governmental entity to produce public documents should still serve as an incentive to respond promptly, the Custis case is a reminder that recovering costs is a difficult burden for a citizen to prove.
