                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. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, 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, 2009.1 However, again Mr. Greer received no response
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,



       1
           The receipt is signed by Kenya Kirkwood.

                                                  -3-
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? 2


      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


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

                                               -6-
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.3

        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’s response, 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,


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

                                                    -7-
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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