                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 27, 2012 Session

ALEX FRIEDMANN, INDIVIDUALLY AND AS AN ASSOCIATE EDITOR
  OF PRISON LEGAL NEWS v. CORRECTIONS CORPORATION OF
                       AMERICA

                 Appeal from the Chancery Court for Davidson County
                   No. 08-1105-I   Claudia Bonnyman, Chancellor


               No. M2012-00212-COA-R3-CV - Filed February 28, 2013


This is the second appeal in an action seeking settlement agreements and settlement reports
from Corrections Corporation of America pursuant to the Public Records Act, Tennessee
Code Annotated § 10-7-301 et seq. In the first appeal, this court determined that CCA is the
functional equivalent of a governmental entity in operating correctional facilities and
remanded the action to the trial court to determine whether the documents requested by the
petitioner fell within the statutory definition of public records set forth at Tennessee Code
Annotated § 10-7-301. On remand, CCA refused to turn over two categories of documents,
settlement agreements and settlement reports, arising out of inmate litigation, arguing that
they did not fall within the statutory definition of public records and are confidential. CCA
additionally argued that the settlement reports are protected as attorney work product. The
trial court held that both the settlement agreements and reports are public records, that the
settlement reports do not constitute attorney work product, that CCA is required to produce
the settlement agreements and reports, and that the petitioner is entitled to reasonable
attorney’s fees pursuant to Tennessee Code Annotated § 10-7-505(g). We affirm the finding
that the settlement agreements are public records and that CCA is required to produce the
settlement agreements. We also affirm the trial court’s findings that the settlement reports
are public records and that CCA has failed to demonstrate that the settlement reports were
produced “in anticipation of litigation;” therefore, the reports are not attorney work product
and CCA must produce the reports. Further, we affirm the award of attorney’s fees incurred
at trial that pertained to requiring CCA to produce the settlement agreements. Finally, we find
the petitioner is entitled to recover attorney’s fees and expenses incurred on appeal to the
extent they pertain to the settlement agreements, but not the settlement reports. On remand,
the trial court shall make the appropriate award.
      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed and Remanded

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Joseph F. Welborn, III, and Jason W. Callen, Nashville, Tennessee, for the appellant,
Corrections Corporation of America.

Andrew C. Clarke, Memphis, Tennessee, for the appellee, Alex Friedmann, Individually and
as Associate Editor of Prison Legal News.

                                         OPINION

      Petitioner, Alex Friedmann, is the editor of Prison Legal News. Defendant,
Corrections Corporation of America (“CCA”), is a privately incorporated correctional service
company headquartered in Nashville, Tennessee, which owns, operates, and manages
numerous correctional facilities, five of which are in the State of Tennessee.

       In April 2007, Friedmann contacted CCA requesting numerous documents pursuant
to the Public Records Act. A few weeks after receiving Friedmann’s initial request for
documents, CCA sent a response stating in summary:

       (1) that it was a private corporation and not subject to the Public Records Act;
       (2) CCA was not operating as the functional equivalent of a governmental
       agency; (3) even if CCA was subject to the Public Records Act, many of the
       requested documents nevertheless exceeded the scope of the Public Records
       Act because they were protected by the attorney work product doctrine or
       sealed by order of a court; (4) many of the requested documents were
       obtainable by Plaintiff either through the applicable court clerk’s office or the
       governmental agency with which CCA had contracted; and (5) gathering all
       of the requested documents would be overly burdensome.

Friedmann v. Corrections Corp. of Am., 310 S.W.3d 366, 370 (Tenn. Ct. App. 2009).

       On May 19, 2008, Friedmann filed a petition in the Davidson County Chancery Court
seeking access to the requested documents on the grounds that the documents were public
records under the Tennessee Public Records Act (“the Act”), Tennessee Code Annotated §
10-7-301 et seq., that he had requested the documents, and that CCA had refused his request.
Friedmann asserted that because CCA operated prisons for the State of Tennessee and local

                                              -2-
governments, it was the functional equivalent of a governmental agency and, therefore,
subject to the Act. CCA contended it was a private corporation and not subject to the Act.
Following a hearing, the trial court found in favor of Friedmann and held that CCA was the
functional equivalent of a governmental agency and ordered production of the requested
documents. CCA appealed that decision.

        This court’s opinion in the first appeal of this case was filed on September 16, 2009.
We held that CCA was operating its facilities as the functional equivalent of a governmental
agency and remanded the matter to the trial court for the determination of several issues.1 Id.
at 380. On remand, the trial court was to determine if the records sought by Friedmann fell
outside the scope of the definition of public records found at Tennessee Code Annotated §
10-7-301(6). Id. Such a determination was necessary because Friedmann would not be
entitled to the records if they were not ‘“made or received pursuant to law or ordinance or
in connection with the transaction of official business by [CCA acting as a] governmental
agency.”’ Id. (quoting Tenn. Code Ann. § 10-7-301(6)). On remand, the trial court was also
instructed to determine if the requested documents were not subject to production because
they were protected from disclosure by the attorney work product doctrine or any other law.
Id. at 381. In the first appeal, we also affirmed the trial court’s denial of Friedmann’s request
for attorney’s fees. Id. Both parties sought permission to appeal to the Tennessee Supreme
Court pursuant to Tennessee Rule of Appellate Procedure 11; the request was denied on
March 1, 2010. Id. at 366.

       On remand, the parties engaged in extensive discovery, and the dispute regarding
which records were to be produced was narrowed to two categories of documents: 1)
releases, settlement agreements, and other documents reflecting the settlement and/or
payment of claims and/or litigation against CCA facilities in Tennessee (“the settlement
agreements”), and 2) spreadsheets or summaries of claims and/or litigation concluded against
CCA in Tennessee (“the settlement reports”). The trial court held a hearing in November
2011 on the issues on remand as to these documents. The sole witness at the hearing was the
Vice-President and General Counsel for CCA.

      On December 1, 2011, the trial court issued a ruling from the bench, which was later
incorporated into an order entered on January 3, 2012. In its order, the trial court held that


        1
         The court also held that one facility, the South Central Correctional Center, was being operated
pursuant to the Private Prison Contracting Act of 1986 (“PPCA”), and thus the provisions of that limited the
documents which CCA was required to produce. Friedmann, 310 S.W.3d at 377-80. The other facilities,
however, were not operated pursuant to that statute and therefore the PPCA did not apply to those facilities.
Id. at 380. The court held that Friedmann failed to request documents properly as to the SCCC under the
PPCA and therefore his request as to that facility was dismissed. Id. at 381.

                                                    -3-
the documents fell within the definition of public records in Tennessee Code Annotated § 10-
7-301(6) as the documents were “made or received pursuant to law or ordinance or in
connection with the transaction of official business by [CCA] acting as a governmental
agency.” The court held that the settlement agreements were public records because they
were “connected to CCA’s official business in part because the corrections business is of
necessity a high volume litigation business.” The court also found these documents were not
confidential, and further held that the documents were not protected by the attorney work
product doctrine or any other state law. The court held that the second set of documents
requested, the settlement reports, were not exempt from the Act because “reports about
resolution of claims which contain the claim name and settlement amount are not work
product.” Therefore, the documents were required to be produced under the Act. The court
reserved the issue of whether Friedmann was entitled to recover his attorney’s fees.

        Thereafter, Friedmann submitted an affidavit on his attorney’s fees and, following a
hearing, the trial court awarded Friedmann his attorney’s fees upon the finding that the
failure to furnish the settlement agreements was in bad faith, because the law was well-
settled that they should be disclosed. The court found that the issue of the settlement reports
was a closer call and therefore found no bad faith in their failure to be furnished. The court
then awarded attorney’s fees in the amount of $28,367.50. CCA filed a timely appeal.

                                          A NALYSIS

        On appeal, CCA reiterates its arguments made before the trial court. First, CCA
contends that the trial court erred in finding that the requested documents, the settlement
agreements and settlement reports, are public records as defined in the Public Records Act,
Tennessee Code Annotated § 10-7-301(6). Second, CCA contends that the settlement reports
are protected from disclosure because they are attorney work product. Third, CCA contends
that the trial court erred in awarding Friedmann his reasonable attorney’s fees because he
failed to demonstrate that CCA acted willfully and in bad faith when it refused disclosure as
required by the Act. We shall address each issue in turn.

                                  I. S TANDARD OF R EVIEW

        The determination of whether the requested documents fell within the statutory
definition of public records contained in Tennessee Code Annotated § 10-7-301(6) is a
question of law. Memphis Publishing Co. v. Cherokee Children & Family Servs., 87 S.W.3d
67, 74 (Tenn. 2002). Thus, our review of the trial court’s decision is de novo upon the record
with no presumption of correctness. Id.




                                              -4-
            II. W HETHER THE R EQUESTED D OCUMENTS ARE P UBLIC R ECORDS

        “The Tennessee Public Records Act ‘governs the right of access to records of
government agencies in this state.’” Memphis Publishing Co. v. Cherokee Children & Family
Servs., Inc., 87 S.W.3d at 74 (quoting Cole v. Campbell, 968 S.W.2d 274, 275 (Tenn. 1998)).
When construing the Act, the General Assembly has directed that public records statutes are
“to be broadly construed so as to give the fullest possible public access to records.” Brennan
v. Giles Cnty. Bd. of Educ., No.M2004-00998-COA-R3-CV, 2005 WL 1996625, at *2 (Tenn.
Ct. App. Aug. 18, 2005) (quoting Tenn. Code Ann. § 10-7-505(d); citing Chattanooga
Publishing Co. v. Hamilton Co. Election Comm’n, No. E2003-00076-COA-R3-CV, 2003
WL 22469808, at * 4 (Tenn. Ct. App. Oct. 31, 2003)). In Memphis Publishing Co. v.
Cherokee Children & Family Servs., our Supreme Court addressed the applicability of the
Public Records Act to private entities performing government functions. The court
recognized that “public access to information may be obstructed when governmental
functions are transferred to the private sector.” Id. at 77. The court stated that “the public’s
fundamental right to scrutinize the performance of public services and the expenditure of
public funds should not be subverted by government or by private entity merely because
public duties have been delegated to an independent contractor.” Id. at 78. The court held that
“[w]hen a private entity’s relationship with the government is so extensive that the entity
serves as the functional equivalent of a governmental agency, the accountability created by
public oversight should be preserved.” Id. at 78-79. The court then, again recognizing the
liberality of construing the Public Records Act, held “that this included records in the hands
of any private entity which operates as the functional equivalent of a state agency.” Id. at 79.
“[W]hen an entity assumes responsibility for providing public functions to such an extent that
it becomes the functional equivalent of a governmental agency, the Tennessee Public
Records Act guarantees that the entity is held accountable to the public for its performance
of those functions.” Id. The court then set forth the appropriate criteria for determining if a
private entity is operating as the functional equivalent of a government agency. See id.

        In Friedmann v. Corrections Corp. of Am., 310 S.W.3d 366, this court applied the
criteria established by our Supreme Court in Memphis Publishing and held that CCA was
subject to the Public Records Act because it was the functional equivalent of a governmental
agency. The court stated:

       With all due respect to CCA, this Court is at a loss as to how operating a state
       prison could be considered anything less than a governmental function. As
       noted by the Trial Court, the Tennessee Constitution requires the State to
       provide for its prisoners. See Tenn. Const. [a]rt. 1, § 32 (“That the erection of
       state prisons, the inspection of prisons, and the humane treatment of prisoners,
       shall be provided for.”).

                                              -5-
Id. at 375. As to the facilities at issue in this appeal,2 the court recognized that:

        [W]e readily find that these facilities likewise are being operated by CCA as
        the functional equivalent of a governmental agency. Specifically, by statutory
        authorization, instead of contracting directly with a private entity, the State has
        contracted with a county government which, in turn, has contracted with a
        private entity. By operating these facilities, CCA is, nevertheless, providing a
        governmental function. In short, private entities cannot legally imprison
        someone. This must be done by the government, whether federal, state, or
        local. In other words, it is the act of imprisonment that is the governmental
        function, regardless of whether the inmate is imprisoned pursuant to federal,
        state, or local laws. In addition, pursuant to the County Correctional Incentives
        Act, there still is significant oversight for prisoners being housed in accordance
        with this Act.

Id. at 379 (footnote omitted). This court then remanded the action for a determination of
whether the requested documents fell within the statutory definition of public records set
forth at Tennessee Code Annotated § 10-7-301(6), which defines public records that are
subject to disclosure under the act as follows:3

        (6) “Public record or records” or “state record or records” means all
        documents, papers, letters, maps, books, photographs, microfilms, electronic
        data processing files and output, films, sound recordings, or other material,
        regardless of physical form or characteristics made or received pursuant to law
        or ordinance or in connection with the transaction of official business by any
        governmental agency;

(Emphasis added).

       CCA’s argument centers on the italicized language in the statute quoted above. CCA
contends that in this court’s first opinion in Friedmann, this court “implicitly recognized”
that CCA was different from cases where our courts have held that private entities were the
functional equivalent of a governmental agency. CCA contends that it is the functional


        2
         The court found that one facility not at issue in this appeal, the South Central Correctional Facility,
which was operated pursuant to a direct contract between the State of Tennessee and CCA pursuant to the
Private Prison Contracting Act, was an obvious delegation of the constitutional function of imprisonment.
        3
         This court also remanded for a determination of whether any of the documents requested were
protected as attorney work product, which issue we shall address in the next section of this opinion.

                                                      -6-
equivalent of a governmental agency only with respect to its “operation of correctional
facilities,” therefore the requested documents, “litigation materials” as CCA refers to them,
are not public records, because they were not created in connection with the transaction of
the official business of operating the correctional facilities. Instead, CCA contends the
requested documents were created in connection with a completely separate aspect of its
business, that of litigation; therefore, they do not fall within the definition of public records.

        We respectfully disagree with CCA’s conclusion. Settlement agreements have
consistently been held to be public records by our courts. In Allen v. Day, this court found
that the rule regarding alternative dispute resolution did not exempt confidential mediated
settlement agreements from disclosure under the Public Records Act. Allen v. Day, 213
S.W.3d 244, 261-62 (Tenn. Ct. App. 2006). In Allen, the court addressed whether the
management company was the functional equivalent of a government agency and thus
subject to the Public Records Act. Id. at 252-56. The court, using the factors set forth in
Memphis Publishing v. Cherokee Children & Family Servs., determined that the management
company was the functional equivalent of a government agency. Id. at 256. Once the court
determined that the management company was the functional equivalent of a government
agency, the court then addressed whether the Rule 31 mediated settlement was subject to
disclosure under the Public Records Act. Id. at 261. The court noted that the parties agreed
the settlement agreement was not exempt under the Act and that there was no exception for
such disclosure under the Act because the settlement was reached in Rule 31 mediation. Id.
at 261-62.

        Further support that settlement agreements are subject to the Public Records Act is
found in Contemporary Media, Inc. v. City of Memphis, No. 02A01-9807-CH00211, 1999
WL 292264 (Tenn. Ct. App. May 11, 1999). In Contemporary Media, this court addressed
the issue of whether the trial court erred in awarding attorney’s fees and costs in a public
records request action. Id at *1. The action began when Contemporary Media, Inc. requested
from the City of Memphis all documents relating to a settlement agreement reached between
the city and a family in a civil rights action. Id. The City and family contended that the
settlement agreement was confidential and not subject to disclosure. Id. The trial court ruled
that the settlement agreement was a public record except to the extent that it may have been
encompassed by a confidentiality order by a federal court. Id. at *2. Following a federal
court’s ruling that the confidentiality order did not prevent disclosure of the settlement
agreement’s terms, Contemporary Media sought attorney’s fees pursuant to Tennessee Code
Annotated § 10-7-505(g) and was awarded such fees by the trial court. Id. The City of
Memphis appealed. Id. On appeal, the City of Memphis conceded that the settlement
agreement constituted a public record; however, it argued that it withheld disclosure based
on its belief that the confidentiality order prevented the disclosure. Id. at *4. This court in
determining whether the City’s argument that confidentiality prevented disclosure looked at

                                               -7-
several cases and opinions and determined that a government agency cannot enter into
confidential settlement agreements. Id. at *4-6 (citing Cleveland Newspaper, Inc. v. Bradley
Cnty. Mem. Hosp. Bd. of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981); State ex rel. Sun
Newspapers v. Westlake Bd. of Educ., 601 N.E.2d 173 (Ohio App. 1991); Tenn. Atty. Gen.
Op. No. 96-144 (Dec. 3, 1996) (“An agreement by a governmental agency to restrict public
access to public records that are not exempt under state law violates public policy and is
unenforceable.”)). In The Tennesseean v. City of Lebanon, No. M2002-02078-COA-R3-CV,
2004 WL 290705 (Tenn. Ct. App. Feb. 13, 2004), this court in holding that The Tennesseean
was entitled to its attorney’s fees in a public records request action noted that “[t]he question
of whether a settlement agreement in litigation against a city is subject to disclosure under
the Public Records Act was decided in Contemporary Media, Inc. v. City of Memphis,” and
thus found there was no basis to argue that a settlement agreement was confidential and not
subject to disclosure under the Act. Id at *4.

         The above cases demonstrate that settlement agreements are considered public records
under the Public Records Act. Thus, as the functional equivalent of a government agency,
CCA was required to turn over settlement agreements related to the operation of the
correctional facilities unless otherwise provided by state law. See Tenn. Code Ann. § 10-7-
503(a)(2)(A). Accordingly, we turn our attention to CCA’s argument that the settlement
agreements were not made in the operation of the correctional facilities, but were made in
its litigation department.

        CCA asserts that the facts of this case are distinguishable from other cases where
private entities have been held to be the functional equivalent of government agencies and
states that this court “implicitly” limited our finding regarding CCA as a government entity.
We did not. In the first appeal, we affirmed the trial court’s determination that CCA was the
functional equivalent of a government agency in its management of correctional facilities.
Nevertheless, in support of this argument, CCA cites to Allen v. Day, 213 S.W.3d 244, and
Memphis Publishing Co. v. City of Memphis, 871 S.W.3d 687, to argue that, in these cases,
the two private entities had contracts that were dedicated entirely to the state contract. CCA
argues here that “CCA’s performance of its Tennessee contracts encompasses only a tiny
fraction of the company’s overall operations” and that this was implicitly recognized by our
previous holding.

       In Allen, the settlement agreement subject to disclosure arose from a suit against the
management company based on actions by its employees that occurred during the
management of a public arena, which was the government function. Allen, 213 S.W.3d at
246, 252-56. As for Memphis Publishing v. Cherokee Children & Family Servs., our
Supreme Court held that records of the child care entity were subject to disclosure because
the entirety of its business activities were servicing the government contracts, child care

                                               -8-
services for indigent families. 87 S.W.3d at 79. Therefore, the court ruled that all of its
records were subject to disclosure. Id. In this action, the litigation documents requested from
CCA are related to its operation of the correctional facilities in Tennessee, not its operation
of correctional facilities outside of Tennessee; therefore, CCA’s reliance on the above cases
is misplaced.

       CCA additionally asserts that a document is not a public record if it was not created
“for the purpose” of its operation of a correctional facility. Once again, we must respectfully
disagree with this assertion. The language of the statute and the vast majority of case law
clearly flies in the face of this interpretation. CCA is a private entity acting as the functional
equivalent of a government agency in its operation of the correctional facilities on behalf of
the local governments. Thus, the settlement agreements and reports were made “in
connection with the transaction of official business by [CCA acting as a] governmental
agency”, therefore, they are public records as defined by Tennessee Code Annotated § 10-7-
301(6).

        This conclusion is supported by the ruling in Memphis Publishing v. City of Memphis.
In that matter, deposition transcripts taken by an attorney hired by the city during a
bankruptcy proceeding were found to be public records subject to disclosure under the Public
Records Act as the depositions were made “in connection” with the official business of the
city. Memphis Publishing v. City of Memphis, 871 S.W.2d 681 (Tenn. 1994). The court
stated:

       With the proper expansive definition of “records” in mind, and in view of the
       fact that § 10-7-504 does not specifically except these documents from public
       view, we cannot say that these depositions transcripts are not material “made
       or received in connection with the transaction of official business” of these
       entities. The City and County took these depositions in a bankruptcy
       proceeding in an attempt to protect a substantial public investment in a large
       construction project. Given the broad construction placed on the above-quoted
       phrase in Griffin, and the liberal access provisions of the Act, the “official
       business” of the City and County cannot be interpreted so as to exclude legal
       action aimed at protecting the legitimate economic interests of those
       governmental entities.

Id. (emphasis added).

        The language of the constitutional provision lends credence to our position. “That the
erection of state prisons, the inspection of prisons, and the humane treatment of prisoners,
shall be provided for.” Tenn. Const. art. 1, § 32. Thus, any documents created in litigation

                                               -9-
arising from the imprisonment of citizens of this state, which is a governmental function,
would clearly be made “in connection with the transaction of official business,” which would
be the operation of a correctional facility. For example, suits arising from the treatment of
a prisoner would directly correlate to the governmental function, thus, documents created
from this litigation would fall within the definition of public records. Further, the Vice-
President and General Counsel for CCA testified that CCA defends the lawsuits filed against
it based upon its operation of the correctional facilities regardless of whether a government
entity is also named and makes all litigation-related decisions, including whether a case is
settled, without governmental input or approval. Nevertheless, CCA is required by its
contract to notify the government entity when it is being sued, the government entity must
approve defense counsel, and CCA must indemnify the government entity. The contract also
provides for a “contract monitor,” which is entitled to access any documents from CCA upon
request. As our Supreme Court recognized in Memphis Publishing v. Cherokee Children &
Family Servs., “the public’s fundamental right to scrutinize the performance of public
services . . . should not be subverted by government or by private entity merely because
public duties have been delegated to an independent contractor.” 87 S.W.3d at 78. Therefore,
we find that the settlement agreements fall within the definition of public records set forth
in Tennessee Code Annotated § 10-7-301(6).

        As for the settlement reports, while CCA contends that the settlement reports are not
made in connection with the operation of the correctional facilities, but are created by CCA’s
litigation department solely to track its own litigation, we note that nothing contained in the
report as set forth in an Exhibit entered before the trial court, contains any information
outside of what is contained in the settlement agreement. The settlement report merely
contains the case number and name, the CCA facility involved, the nature of the action, and
the date and amount of the settlement. Thus, we find that the settlement reports also fall
within the definition of public records set forth at Tennessee Code Annotated § 10-7-301(6).

                            III. A TTORNEY W ORK P RODUCT D OCTRINE

       We now turn our attention to CCA’s assertion that the settlement reports, even though
public records, are not subject to disclosure because they are protected as attorney work
product.4

        “All state, county and municipal records shall at all times during business hours . . .
be open for personal inspection by any citizen of Tennessee, and those in charge of such
records shall not refuse such right of inspection to any citizen, unless otherwise provided by
state law.” Tenn. Code Ann. § 10-7-503(a)(2)(A). Our courts have interpreted this language

       4
           CCA does not contend that the settlement agreements are attorney work product.

                                                   -10-
to include exceptions contained in “the state constitution, common law, rules of court, and
properly authorized rules and regulations.” The Tennesseean v. Tenn. Dep’t of Personnel, No.
M2005-02578-COA-R3-CV, 2007 WL 1241337, at *5 (Tenn. Ct. App. Apr. 27, 2007) (citing
Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004)). The attorney work product
doctrine is one of the exceptions to the Public Records Act. Id. at *10 (holding “[a]ny
document that meets the definition of work product under Rule 26.02(3) of the Rules of Civil
Procedure is exempt from the Act”).

       As the United States Supreme Court has explained, the essential purpose of the work
product doctrine is to protect an attorney’s mental processes. Boyd v. Comdata Network, Inc.,
88 S.W.3d 203, 222 (Tenn. Ct. App. 2002) (citing Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001)). Attorney work product can take one of three forms:
“opinion” work product, “fact” or “ordinary” work product, or a combination of both. Id. at
221.

       “Opinion” work product contains “an attorney’s mental impressions, conclusions,
opinions, or legal theories regarding the pending litigation.” Id. “‘Fact” or “ordinary” work
product includes documents prepared in anticipation of litigation or for trial that [does] not
contain the mental impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party in the litigation.” Id.

        By rule of procedure, Tennessee protects “any document prepared in anticipation of
litigation by or for the attorney.” Tenn. R. Civ. P. 26.02(3). To qualify as work product, it
must be established: “(1) that the material sought is tangible, (2) that the documents were
prepared in anticipation of litigation or trial, and (3) that the documents were prepared by or
for legal counsel.” The Tennesseean, 2007 WL 1241337, at *10 (citing Tenn. R. Civ. P.
26.02(3); State ex rel Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d
602, 617 n.15 (Tenn. Ct. App. 2006)). The foregoing notwithstanding, the attorney work
product doctrine “does not protect documents prepared in the regular course of business.”
Boyd, 88 S.W.3d at 225 n.33 (citing Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir.
1987); Columbia/HCA Healthcare Corp. v. Eighth Judicial Dist. Ct., 936 P.2d 844 (Nev.
1997); Cook v. Wake Cnty. Hosp. Sys., 482 S.E.2d 546 (N.C. Ct. App. 1997); Federal
Practice and Procedure § 2024, at 346).

        In this action, the settlement reports are tangible documents and the record reveals that
the settlement reports were prepared by or at the request of legal counsel at CCA. Thus, two
of the three essential elements have been established by CCA. The remaining element, and
dispositive issue, is whether the settlement reports were “prepared in anticipation of litigation
or trial” or prepared in the regular course of business of CCA in its operation of the
correctional facilities. See Boyd, 88 S.W.3d at 225 n.33; The Tennesseean, 2007 WL

                                              -11-
1241337, at *10. If CCA failed to establish the documents were prepared in anticipation of
litigation, then the work product exception to disclosure does not apply and the documents
must be disclosed pursuant to the Public Records Act.5 The Tennesseean, 2007 WL 1241337,
at *10.

        This court addressed the attorney work product doctrine as an exception to the Public
Records Act in Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 1999). In
Arnold, a newspaper publisher filed a Public Records Act petition seeking to inspect a
management firm’s reports on the city’s acquisition of a water company. Id. at 782. The city
contended that the reports were attorney work product. Id. The trial court held that the reports
were not protected under Rule 26.02 because the action was not a “normal lawsuit” but one
filed by a publisher because the city refused to produce the records, and that the reports were
not protected because they were not prepared “to be used in this lawsuit (Public Records Act)
to defeat the rights of the Petitioners.” Id. at 782-83. We disagreed with both rulings and
concluded that “materials which are prepared in anticipation of litigation need not be
prepared for the specific case in which discovery is sought in order to be protected by the
work product doctrine.” Id. at 783-84 (citing Downing v. Bowater, 846 S.W.2d 265 (Tenn.
Ct. App. 1992)). We also disagreed with the trial court’s finding that the reports were not
protected because a suit had not yet commenced, stating:

        The fact that [a] document may have been created before [a] complaint was
        actually filed does not exempt it from [the] scope of [the] work product
        doctrine. Litigation need not necessarily be imminent as long as the primary
        motivating purpose behind the creation of the document is to aid in possible
        future litigation.

Id. at 784. We further stated: “The possibility of avoiding litigation would not render the
document any less ‘work product’ created in anticipation of litigation than if the suit had
already been filed . . . [a]n attorney and client should not be disadvantaged simply because
they were hoping to settle a case without filing a suit.” Id. After examining all issues, we
concluded that the documents sought by Arnold were created by the city in anticipation of



        5
          Disputes concerning work product are generally in the context of discovery disputes, where one
party serves a request for production of documents upon an adversary pursuant to Tennessee Rules of Civil
Procedure 26.02 and 34. In that context, the requesting party must establish (1) that it has a substantial need
for the materials and (2) that it is unable to obtain these materials or their substantial equivalent by other
means without undue hardship. See Boyd, 88 S.W.3d at 221; see also Tenn. R. Civ. P. 26.02(3). As a general
rule, the party seeking these documents pursuant to the above rules of discovery must establish that the facts
in the requested documents are essential elements of its prima facie case. Boyd, 88 S.W.3d at 221-22.
However, that is not the case when the documents are requested pursuant to the Public Records Act.

                                                     -12-
litigation because the city was contemplating either filing a condemnation action or acquiring
the water company through a negotiation. Id.

       In another instructive case, Guardsmark v. Blue Cross and Blue Shield, 206 F.R.D.202
(W.D. Tenn. 2002), the federal district court addressed the issue of whether audit reports
were protected as attorney work product under Federal Rule of Civil Procedure 26.02. The
party opposing discovery insisted the audit reports were protected because they were
“prepared in anticipation of litigation.” Id. at 207. The district court determined that the “test
question” for whether a document was work product was:

       “[W]hether, in light of the nature of the document and the factual situation in
       the particular case, the document can fairly be said to have been prepared or
       obtained because of the prospect of litigation;” and that “[f]or a document to
       meet this standard, the lawyer must at least have had a subjective belief that
       litigation was a real possibility, and that belief must have been objectively
       reasonable.”

Id. at 209 (quoting In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998)). Applying this test, the
district court found the audit reports were not prepared “because of the prospect of litigation”
as there was no showing in the record that a lawyer, or any representative of the company
seeking protection of the audit reports, had a subjective belief that litigation was a real
possibility, and, even if someone had such a subjective belief, it would not have been
objectively reasonable. Id. at 210.

        The only evidence in this record pertaining to the settlement reports was the testimony
of CCA’s General Counsel and Vice-President Steve Groom. Mr. Groom testified that the
database from which the settlement reports were created is a system CCA acquired to manage
high-volume litigation and it is used by CCA to anticipate which types of cases may be filed
and to aid the company in future litigation and settlements. He further stated that the database
contains evaluations by attorneys of ongoing cases. As for the settlement reports, Mr. Groom
testified that the reports were used to look back to see which areas were of concern and to
be able to give advice on cases going forward.

        Based upon the foregoing, we have concluded that CCA failed to satisfy the
Guardsmark work product test and that the evidence preponderates in favor of the finding
that the settlement reports at issue were prepared in the regular course of business of CCA’s
operation of the correctional facilities. Although other aspects of CCA’s database and records
that are not at issue here may qualify as attorney work product, the settlement reports
Friedmann seeks pursuant to the Public Records Act do not.



                                               -13-
       We, therefore, affirm the trial court’s ruling that the settlement reports requested
pursuant to the Public Records Act at issue herein are public records and the reports do not
qualify as attorney work product. Accordingly, CCA must disclose the settlement reports.

                                    V. A TTORNEY’S F EES

        Last, we address CCA’s contention that the trial court erred in awarding Friedmann
his attorney’s fees pursuant to Tennessee Code Annotated § 10-7-505(g), which provides
that:

       (g) 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. In determining whether the action was
       willful, the court may consider any guidance provided to the records custodian
       by the office of open records counsel as created in title 8, chapter 4.

       The willfulness requirement of the statute is synonymous with bad faith. Arnold v.
City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999).

       ‘Bad faith’ is defined 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.
              Term ‘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.

              Contemporary Media [1999 WL 292264] (citing Black’s Law
              Dictionary 127 (5th Ed. 1979)).

Id. Under the Public Records Act, the burden is on the refusing entity to justify a refusal of
access. The Tennesseean v. City of Lebanon, 2004 WL 290705, at *9.



                                              -14-
        The trial court awarded Friedmann attorney’s fees finding that the refusal of CCA to
furnish the settlement agreements was in bad faith because the law was well-settled that the
agreements were subject to disclosure as public records. The trial court, however, found that
there was not bad faith by CCA in its refusal to furnish the settlement reports because it was
a “close call” on whether they were subject to disclosure. Based upon these two findings, the
trial court awarded Friedmann attorney’s fees that pertained to the issue of the settlement
agreements.

        The award of attorney’s fees pursuant to Tennessee Code Annotated § 10-7-505(g)
is within the trial court’s discretion. Contemporary Media, 1999 WL 292264, at *6. We will
not disturb that decision absent a showing of an abuse of discretion. Id. We find the trial
court did not abuse its discretion in finding CCA acted in bad faith in its refusal to disclose
the settlement agreements. As the trial court noted, the law is well-settled that settlement
agreements are subject to disclosure under the Public Records Act. As this court had
previously held that CCA was acting as the functional equivalent of a government entity in
its operation of the correctional facilities, the settlement agreements entered into in litigation
made in connection with the operation of those facilities would be subject to disclosure. We,
therefore, affirm the trial court’s award of attorney’s fees to Friedmann.

        Friedmann also requests his reasonable attorney’s fees incurred in this appeal.
Although we have concluded that CCA is required to produce the settlement agreements and
reports, we agree with the trial court that the issue of the settlement reports was a close call;
thus, we find that Friedmann is not entitled to recover attorney’s fees incurred that pertain
to the settlement reports. It is within the discretion of the trial court to determine the amount
of attorney’s fees and expenses incurred on appeal Friedmann is entitled to recover. See
Schneider v. City of Jackson, 226 S.W.3d 332, 348 (Tenn. 2007) (finding petitioners were
entitled to their reasonable attorney’s fees incurred on appeal in a Public Records Act action).

                                        In Conclusion

      The judgment of the trial court is affirmed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal assessed against the Appellant,
Corrections Corporation of America.


                                                         ______________________________
                                                         FRANK G. CLEMENT, JR., JUDGE




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