               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 23, 2012 Session

     KIMBERLY CUSTIS v. METROPOLITAN NASHVILLE POLICE
                        DEPARTMENT

            Rule 3 Appeal from the Chancery Court for Davidson County
                    No. 11-363-II   Carol L. McCoy, Chancellor


               No. M2011-02169-COA-R3-CV - Filed October 10, 2012


This case involves a claim for attorney’s fees and costs under the Public Records Act. The
trial court declined to award fees and costs to appellant under Tenn.Code Ann. § 10-7-
505(g), which requires a finding of a willful and knowing failure to comply with requests
filed pursuant to the Act. We conclude that the trial court did not abuse its discretion in
denying an award of attorney’s fees and costs because the court made specific findings
concerning the willfulness of appellee’s failure to respond, and the evidence does not
preponderate against those findings. Affirmed.

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

B EN H. C ANTRELL, SR.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and R ICHARD H. D INKINS, JJ., joined.

Elliot Ozment, Nashville, Tennessee, for the appellant, Kimberly Custis.

Saul Solomon, Lora Barkenbus Fox and Jeff Campbell, Metropolitan Nashville Department
of Law, for the appellee, The Metropolitan Nashville Police Department.

                                        OPINION

                                        I. FACTS

      On October 20, 2010 The Metropolitan Nashville Police Department (“MNPD” or
“Department”) along with federal immigration officers conducted an investigation at the
Clairmont Apartment Complex in Nashville. During this operation, they searched several
apartments including the home of Ms. Custis.
      On December 2, 2010, Ms. Custis, through counsel, submitted a public records request
pursuant to the Tennessee Public Records Act, Tenn.Code Ann. § 10-7-501 et seq. On
December 7, 2010 the request was sent to various entities including the Chief of Police, the
MNPD Gang Unit and the Metropolitan Nashville Department of Law.

        Not having received a response by February 22, 2011, Ms. Custis’ attorney sent a
certified letter to the Department requesting immediate action. This letter was received by
the MNPD Central Records Division on February 28. On that day, the Department sent two
communications to Ms. Custis. One was from the records division and contained a
spreadsheet of 56 service calls to the Clairmont Apartment complex in October of 2010. The
other notified Ms. Custis’ attorney that dates of birth of individuals listed in the records
request would assist the Department in providing further information and records.

       Also on February 28, a Lieutenant from the MNPD gang unit contacted Ms. Custis’
attorney and stated that he was working with the Metropolitan Department of Law and that
he had hoped to provide the requested documents in the following two weeks.

       On March 17, appellant filed a Petition for Show Cause Order in the court below. On
March 18, appellee provided numerous documents responsive to the request to the appellant
and appellant responded with a letter broadening the scope of her request including records
pertaining to a MNPD officer. The Petition was served on the Department on March 25.
There were several communications between appellant and appellee during March.
Ultimately, the complete records production occurred on April 25.

       Hearings on the Petition were held on April 25 and July 19. During these two
hearings the court admitted evidence from MNPD via affidavit and live testimony. This
evidence included testimony of three MNPD officers and a Records Division official. Their
testimony showed, among other things, that the initial request was sent to a prior employee
and used the wrong name; that members of the Department were new to the process of
records requests; the records requested were numerous and located in various locations; that
employees had multiple tasks in addition to responding to appellant’s request(s) and that
MNPD sought advice from the Metropolitan Legal Department as to what could or could not
be produced. The records custodians all testified that they responded promptly and that at
no time did any of them withhold any documents requested.

       On September 13, the court entered a Final Order denying Ms. Custis’ Motion for
Attorney’s fees under Tenn.Code Ann. § 10-7-505(g) and in the Order the court stated that
“for the reasons set forth in Greer as to what willful is as a requirement under the Open
Records Act, I do not find the requisite bad faith or willful element present under the
circumstances of this case.” Ms. Custis then appealed to this Court.

                                            -2-
                                        III. A NALYSIS
A. The Public Records Act.

      The Tennessee Public Records Act, 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 an 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 th office of open records counsel stating the time reasonably
       necessary to produce the record or information.

      Tenn.Code Ann. § 10-7-503(a)(2).

B. Costs and Attorney’s Fees.

      The Act also contains the following provision;

               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 attorney’s fees, against
       the nondisclosing governmental entity.

      Tenn.Code Ann. § 10-7-505(g).

                                              -3-
       The attorney’s 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). Although
our Supreme Court did not elaborate, in Memphis Publishing Co., what it meant by the
descriptive term “limited,” case law following it 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 public1 and “willfully” failed to
disclose it. Greer v. City of Memphis, 356 S.W.3d 917 at 921 (Tenn.Ct.App.2010).


C. The Standard of Review.

         A 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 the 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). Tennessean v. City of Lebanon, 2004 WL
290705 (Tenn.Ct.App.).

       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). 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.


D. The Bad Faith Standard.

       A brief discussion of the development of the “bad faith” standard as it pertains to the
fee shifting provision in the Act is helpful. In what appears to the Court to be the first case
to address the issue, Capital Case Res. Ctr. of Tenn. v. Woodall, 1992 WL 12217
(Tenn.Ct.App.), attorneys for a convicted felon in a federal habeas corpus action requested
police and prosecution files from the District Attorney General. The DA refused to produce
the records, saying that the habeas action made the files part of a “pending or contemplated”
criminal case, and as such were exempt under existing state law. Petitioners sued to compel
production of the records and the trial court found in their favor. Petitioners then moved for
costs and fees under 505(g). The trial judge denied the motion saying that the “willful”
element of the statute indicated the need to show bad faith in a refusal to produce records and


        1
         There is no dispute in the present case as to the public nature of the records at issue, therefore we
will focus only on the analysis of “willful” and “knowing” as used in the Act.

                                                    -4-
that there had been no such showing. The Court of Appeals agreed and said the “willful and
knowing” element was “essentially synonymous with bad faith.” The Court further held that
while the exception for production of records did not apply to the facts at issue, it could not
say that Respondent’s arguments to the contrary were not “warranted by existing law or a
good faith argument for the extension, modification, or reversal of existing law,” Id., at 9,
citing Rule 11, Tenn.R.Civ.P. (emphasis in original).

       The “willful” element was further discussed as “synonymous to a bad faith
requirement” in Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn.Ct.App.1999). The
Arnold Court concluded that “willful” is not simply bad judgment or negligence and clarified
“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.

 Id at 789. See also Contemporary Media, Inc., v. City of Memphis, 1999 WL 292264, *4
(Tenn.Ct.App.1999), (“[t]he statute expresses a ‘knowing and willful’ standard which is
synonymous with ‘bad faith’”) Id. at 8.; Greer v. City of Memphis, 356 S.W.3d 917
(Tenn.Ct.App.2010).

        Appellant points to the Tennessean case, supra, in which the Court states in a footnote
that the Court did “not believe that inserting this [bad faith] element into the statutory standard
is consistent with the Act or purpose of the attorney fee provision.” Id. at 9 n.9. But in 2007,
the Tennessee Supreme Court adopted the “bad faith” analysis in deciding whether to award
attorney’s fees under the Public Records Act. See Schneider v. Jackson, 226 S.W.3d 332
(Tenn.2007). In determining that attorney’s fees were proper, the Court in Schneider noted
that respondents willfully failed to provide records and had relied upon a common law
precedent that had not been adopted in Tennessee and had in fact been implicitly rejected by
state case law. In its analysis the Court stated “[t]he element of ‘willfully’ required by this
statute has been described as synonymous to a bad faith requirement.” Id at 346 (citing
Arnold). The Court then proceeded to consider the parties’ good faith and bad faith
arguments in reaching its decision, determining that the respondent’s refusal was “willful” and
the award of attorney fees was proper.

                                                -5-
        It is worth noting, that in all of these cases the Courts were dealing with a respondent’s
flat denial to produce records and an analysis of the nature of the records themselves. It is our
opinion that a mere delay in answering a voluminous records request, such as in the case
before us, is a far less egregious act and is less likely to be prejudicial to the party making the
request.

         Greer, supra, is more on point. In that case the records custodian produced the
requested documents, but only after an approximate three month delay. The Greer Court
overturned the trial court’s award of attorneys fees applying the bad faith standard, and citing
Schneider and Memphis Publishing. The Court stated that the delay in production was
“undisputedly inadvertent” and therefore did not equate to willfulness under the statute. A
similar situation exists in the present case. The appellee presented uncontradicted evidence
at trial showing that there was inadvertance and that the Department was making efforts to
produce the requested documents.

        As set out above, the finding of willfulness on the part of the governmental entity
requires more than mere negligence, inadvertance or mistake. Rather, the finding of
willfulness requires evidence that the withholding entity acted consciously in furtherance of
a dishonest purpose. The trial court specifically mentioned Greer and the other cases when
deciding that there was no bad faith, i.e. no “willfulness” on the part of MNPD which resulted
in the delay in producing the records. The trial court based that finding on evidence it heard
from the Department itself. We therefore find that the record supports the trial court’s
determination that appellant was not entitled to an award of attorney’s fees.

                                      IV. CONCLUSION

       The order of the trial court is affirmed. We remand this case to the Chancery Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Kimberly Custis.




                                              _______________________________
                                              BEN H. CANTRELL, SR. JUDGE




                                                -6-
