                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                     April 8, 2015 Session

      ALEX FRIEDMANN, ET AL. v. MARSHALL COUNTY, TN, ET AL.

             Direct Appeal from the Chancery Court for Marshall County
                         No. 17017    J.B. Cox, Chancellor


                   No. M2014-01413-COA-R3-CV – Filed June 24, 2015


BRANDON O. GIBSON, J., concurring.

       I concur with the majority Opinion‟s ruling, but I write separately to address only
the attorneys‟ fee issue. Over the years, two schools of thought apparently developed
regarding the “willfulness” standard under the Public Records Act attorneys‟ fee
provision. Tenn. Code Ann. § 10-7-505(g). One school of thought adopted the Black‟s
Law Dictionary definition of bad faith, which includes phrases like “the conscious doing
of a wrong,” “dishonest purpose,” and “moral obliquity.” See Capital Case Res. Ctr. of
Tenn., Inc. v. Woodall, No. 01-A01-9104-CH-00150, 1992 WL 12217, at *8 (Tenn. Ct.
App. Jan. 29, 1992) (no. perm. app. filed) (holding that Section 10-7-505(g)‟s “knowing
and willful” standard is synonymous with “bad faith,” without defining “bad faith”);
Contemporary Media v. City of Memphis, No. 02A01-9807-CH-00211, 1999 WL
292264, at *4-5 (Tenn. Ct. App. May 11, 1999)1 (citing Capital Case Res. Ctr. but
defining “bad faith” by quoting the Black‟s Law Dictionary definition of the term);
Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999).

       The other school of thought equated “willfulness” with a lack of Tennessee Rule
of Civil Procedure 11 “good faith.” See Combined Commc’ns, Inc. v. Solid Waste Region
Bd., No. 01A01-9310-CH-00441, 1994 WL 123831, at *3 (Tenn. Ct. App. Apr. 13, 1994)
(explaining that Tenn. Code Ann. § 10-7-505(g) “does not apply where a governmental
entity‟s unsuccessful attempt to protect a public record from disclosure is „warranted by
existing law or a good faith argument for the extension, modification or reversal of
existing law.‟”); Tennessean v. City of Lebanon, No. M2001-02078-COA-R3-CV, 2004
WL 290705, at *9, fn. 9 (Tenn. Ct. App. Feb. 13, 2004) (opining that inserting an element
of “fraud, sinister motive, dishonest purpose, ill will, or similar intent” is inconsistent
with the Public Records Act or the purpose of the attorney fee provision).
1
 This case was appealed to the Tennessee Supreme Court and certiorari was granted. Before the case was
heard by the supreme court, however, the parties agreed to dismiss the case. An order dismissing the
appeal was entered on January 14, 2000.
       When the Tennessee Supreme Court considered attorneys‟ fees in Schneider v.
City of Jackson, 226 S.W.3d 332 (Tenn. 2007), it said:

       The element of “willfully” required by this statute has been described as
       synonymous to a bad faith requirement. Arnold, 19 S.W.3d at 789. Stated
       differently, 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. Id. Moreover,
       in assessing willfulness, Tennessee courts must not impute to a
       governmental entity the “duty to foretell an uncertain juridical future.”
       Memphis Publ’g Co. v. City of Memphis, 871 S.W.3d [681, 689 (Tenn.
       1994)].

Schneider, 226 S.W.3d at 346. In my view, additional confusion arises regarding the
appropriate standard because the supreme court relied on Arnold, which adopted the
Black‟s Law Dictionary definition of “bad faith,” but the court also stated that attorneys‟
fees are inappropriate if the governmental entity “acts with a good faith belief that the
records are excepted from [] disclosure.” However, I agree with the majority that the
appropriate standard for “willfulness” under the Public Records Act is an absence of a
“good faith belief that the records are excepted from [] disclosure.” Schneider, 226
S.W.3d at 346. This standard is considerably lower than the Black‟s Law Dictionary
definition of “bad faith.”

        Since Schneider, at least two opinions of this Court have indicated that the Black‟s
Law Dictionary definition of “bad faith” applies. As the majority points out, in Little v.
City of Chattanooga, No. E2011-02724-COA-R3-CV, 2012 WL 4358174, (Tenn. Ct.
App. Sept. 25, 2102), perm. app. denied (Tenn. Feb. 12, 2013), the eastern section of the
court of appeals held that attorneys‟ fees were appropriate because “the City acted
consciously to withhold the records with a dishonest purpose” and therefore tracked the
Black‟s Law Dictionary definition of “bad faith.” Little, 2012 WL 4358174, at *15. The
western section, in Greer v. City of Memphis, 356 S.W.3d 917 (Tenn. Ct. App. 2010),
said “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,” and therefore also tracked the Black‟s Law Dictionary
definition of “bad faith.” Id. at 923, (citing Arnold, 19 S.W.3d at 789). However, the
Greer court did not actually apply the “willfulness” standard it articulated, as it
determined that the trial court failed to make a specific finding of willfulness, and the
parties presented no evidence whatsoever at the hearing and instead relied solely on the
arguments of counsel.

       This case presents an interesting question regarding the “willfulness” standard
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under the Public Records Act attorney fee provision. The trial court noted that neither
party disputed that the records Mr. Friedmann sought were subject to disclosure. Rather,
the parties disagreed on how those records were to be disclosed. The trial court found
that the Sheriff‟s “reliance upon his counsel‟s advice and his willingness to produce the
records upon personal appearance show the Court that he was not willfully denying Mr.
Friedmann his access to the records.” I do not believe the Sheriff‟s actions amount to
“fraud [or] … the conscious doing of a wrong because of dishonest purpose or moral
obliquity.” Contemporary Media, Inc., 1999 WL 292264, at *4 (quoting Black‟s Law
Dictionary 127 (5th ed. 1979). However, the Sheriff did act “willfully” because he failed
to heed the direction of the Open Records counsel and his position was “not warranted by
existing law or a good faith argument for the extension, modification or reversal of
existing law.” Tennessean, 2004 WL 290705, at *9, fn. 9.

       For the foregoing reasons, I concur in the majority opinion. Clarity and
consistency in the application of the Tennessee Public Records Act‟s “willfulness”
standard is much needed.


                                               _________________________________
                                               BRANDON O. GIBSON, JUDGE




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