Jetmore v. City of Memphis, W2018-01567-COA-R3-CV

• Decision Date: 26 September 2019
• Docket Number: No. W2018-01567-COA-R3-CV,W2018-01567-COA-R3-CV
• Parties: BRADLEY JETMORE v. CITY OF MEMPHIS
• Court: Tennessee Court of Appeals

BRADLEY JETMORE v. CITY OF MEMPHIS

No. W2018-01567-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

June 19, 2019 Session

September 26, 2019

Appeal from the Chancery Court for Shelby County

No. CH-17-1754-3

JoeDae L. Jenkins, Chancellor

In this case involving the Tennessee Public Records Act ("TPRA"), Tenn. Code Ann. §§ 10-7-101 - 10-7-702 (2012 & Supp. 2019), the petitioner filed a petition alleging that the respondent, the City of Memphis ("the City"), had violated the TPRA by failing to promptly disclose unredacted crash reports for all traffic accidents to which the City's police officers had responded on two specific days in November 2017. The City filed a motion to dismiss the petition or, in the alternative, to stay proceedings pending resolution of what it averred would be a determinative issue in a related federal case. Following a non-evidentiary hearing, the trial court denied the City's motion to dismiss and motion to stay pending resolution of the federal action. Finding that the City had violated the TPRA by failing to promptly disclose unredacted crash reports for public inspection, the trial court ordered such disclosure; however, upon also finding that a substantial legal issue was to be determined, the trial court stayed its disclosure order pending resolution of this appeal pursuant to Tennessee Code Annotated § 10-7-505(d)-(e) (2012). Upon finding that the City's violation of the TPRA had not been willful, the trial court denied the petitioner's request for attorney's fees. The City timely appealed. During the pendency of this appeal, the federal district court in the related case certified the legal question posed by the City for presentation to the Tennessee Supreme Court, but the High Court subsequently entered an order declining certification. By the time of oral arguments before this Court, the parties acknowledged that the sole issue remaining for adjudication in this appeal was the petitioner's request for attorney's fees. We determine that under the version of the TPRA in effect at the time this action was filed, the trial court properly found that the City failed to promptly disclose the public records at issue. We further determine that the City's violation of the TPRA was willful pursuant to Tennessee Code Annotated § 10-7-505(g) (2012). We therefore reverse the trial court's finding in this regard. We remand for the trial court to consider, in light of our determination concerning willfulness, whether reasonable attorney's fees incurred during the trial court proceedings should be awarded to the petitioner. However, because the petitioner has not properly raised an issue concerning attorney's fees on appeal, we deem the petitioner's request for attorney's fees on appeal to be waived.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S. and CARMA DENNIS MCGEE, J., joined.

Justin Joy and Alexander H. Park, Memphis, Tennessee, for the appellant, City of Memphis.

Douglas R. Pierce and Kyle D. Watlington, Nashville, Tennessee, for the appellee, Bradley Jetmore.

OPINION

I. Factual and Procedural Background

The petitioner, Bradley Jetmore, initiated the instant action by filing a "Verified Complaint and Petition for Access to Public Records" against the City in the Shelby County Chancery Court ("trial court") on December 5, 2017. Mr. Jetmore asserted that for several years, he had "regularly and routinely requested traffic accident reports for a commercial purpose" and that he had the right to do so pursuant to Tennessee Code Annotated § 10-7-503(a)(2)(A) (Supp. 2019) of the TPRA, which provides in pertinent part: "All state, county and municipal records shall, at all times during business hours . . . 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."

Mr. Jetmore averred in his petition that in the fall of 2017, the City began delaying the production of accident reports, currently termed "crash reports," for public inspection and redacting information from the reports that it had not previously redacted. Specifically, Mr. Jetmore asserted that on November 2, 2017, he had caused to be hand delivered to the Memphis Police Department ("MPD") a written request for "All Traffic Accidents/Crash Report(s) responded to by [MPD] on November 1, 2017" ("First Request") and that on November 3, 2017, he had caused to be delivered an essentially identical request for all crash reports responded to by MPD on November 2, 2017 ("Second Request").¹

Mr. Jetmore attached to his petition email correspondence from the City demonstrating that the City had initially replied to his First Request on November 3, 2017, by informing Mr. Jetmore that his request had been assigned a tracking number. Ten days later, on November 13, 2017, Mr. Jetmore received a similar acknowledgment of the Second Request. On November 14, 2017, the City sent Mr. Jetmore a form concerning his Second Request, informing him that it was not practical for the City to promptly respond with records because it had "not yet been determined that the records responsive to your request[s] exist . . . ." On a form dated November 20, 2017, the City informed Mr. Jetmore that it could not yet make records available for inspection in response to his request(s) because "[t]he office [was] still in the process of retrieving, reviewing, and/or redacting the requested records."² The City ultimately provided access to the requested records for both days through a response dated November 21, 2017, but did so with certain information redacted, specifically the names, addresses, and telephone numbers of the individuals involved in each accident.

Mr. Jetmore alleged in his petition that the City was in violation of Tennessee Code Annotated § 10-7-503(a)(2)(B) (Supp. 2019), which provides:

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.

Mr. Jetmore concomitantly filed a motion for a show cause hearing, requesting that the trial court require the City to show cause why it should not be enjoined from: "(i) refusing to produce accident reports for inspection promptly, as it has done for many years in the past; (ii) redacting name, address and phone numbers from the accident reports." See Tenn. Code Ann. § 10-7-505(b) (2012) ("Upon filing of the petition [for access to a public record], the court shall, upon request of the petitioning party, issue an order requiring the defendant or respondent party or parties to immediately appear and show cause, if they have any, why the petition should not be granted."). Mr. Jetmore also requested that the trial court enter an order directing the City to produce "all outstanding records requested" "as quickly as possible." Alleging that the City's delay in producing the records was "calculated and willful" and that the redaction of information from the records constituted a "denial of the public right of access to these records," Mr. Jetmore requested an award of attorney's fees and costs pursuant to the TPRA. See Tenn. Code Ann. § 10-7-505(g) (providing for a discretionary award of "reasonable costs involved in obtaining the record, including reasonable attorney's fees," against a governmental entity upon a finding that the entity has willfully refused to disclose what it knew to be a public record).

On January 8, 2018, the City filed a motion to dismiss or, in the alternative, to stay the proceedings until a case with a related issue, Price v. City of Memphis ex rel. Memphis Police Dep't, No. 2:17-cv-02772-JTF-cgc, 2018 WL 6531751 (W.D. Tenn. Sept. 4, 2018), could be resolved in federal court. The City specifically stated that Price was "a federal action pending regarding the information contained in traffic accident reports" and that Mr. Jetmore had intervened as a defendant in that suit. The City, relying on the doctrine of prior suit pending, argued in its motion that because the federal action would involve "the question to be resolved by this Court—whether or not the information contained in accident reports is subject to the Tennessee Public Records Act—this Court should dismiss this action in favor of the earlier suit." In the alternative, the City requested that the trial court enter an order "staying this matter until the Prior Suit has resolved, or at least the proceedings certifying the determinative question in the Prior Suit, as well as this case, have concluded."³

Mr. Jetmore filed a response, together with multiple supporting documents, opposing the City's motion to dismiss and the City's request for a stay of discovery, which Mr. Jetmore characterized as an improper request for a protective order. Mr. Jetmore asserted that the doctrine of prior suit pending was not applicable to this case and that "[t]he City [had] not justified the nondisclosure of the records at issue in this matter." The City filed a reply, again requesting dismissal or, alternatively, a stay. In addition, the City requested a protective order "to protect the City from undue burden or expense." On February 16, 2018, the trial court entered an order denying...