The Open Records Act in Tennessee has bite.
Because the city of Chattanooga was found to be willful and dishonest in denying public records to citizen Rebecca Little, an appeals court said it must pay her attorneys’ fees and costs: $71,343.
Citizens shouldn’t have to sue to get their local government to follow the law.
Such a case is never easy. It took three years. The city appealed one decision to the Tennessee Supreme Court, which declined to hear it. The city could try again over the latest Appeals Court ruling on the amount of fees, further dragging out the case, creating more costs for both sides. It has until April 14 to decide.
What’s at stake?
The city never argued that it didn’t follow the Open Records Act, which requires some response to a public records request within seven days. The response can be an estimate of how much time it would take to fulfill the request. The law is not unreasonable about this.
The city’s main argument seemed to be that it just bungled the request – they got confused over Little’s requests, the person in charge of traffic-copping requests was taking time off to study for the bar exam, the person backing her up dropped the ball.
But the truth is that the Public Works Administrator, Steve Leach, felt Little was harassing his staff with requests for documents, and he put this in an email to the deputy city attorney, asking if there was a way to seek an injunction against her.
Leach had ignored Little’s requests for about a month, even after a reminder from staff about the deadline for getting back with her.
Little had done everything right. She initially made a broad request, but then realized she should be more specific, and narrowed her request to information relative to just three roads.
But the city failed to acknowledge her more narrow request.
After the lawsuit was filed – almost a month after her more narrow request – Leach instructed his staff to proceed to search for records related to the earlier much broader request. Later we learn of the hundreds of hours city staff spent looking for records.
At the first hearing on the lawsuit, all these records were dumped in boxes in court, with the city proclaiming: “We brought all of that stuff to the extent we know it’s responsive” and, “We’ve given them everything we got. We don’t know what else we can turn over.”
An appeals court later found that declaration dishonest. Within a few hours of the hearing, Little gets a call from a city staffer asking for key terms for an email search that was also part of the request – admitting the city knew it was still holding back some records.
At one point, the city can’t locate records. Little wanted Contract 79, but the sewer contract numbers strangely stopped at 77 and resumed at 81. The city did not know why.
At another point, the deputy city attorney tells staff to only search email records going back five years, even if emails exist older than that. The Municipal Technical Advisory Service recommendations require email retention for only five years, so that’s all Little was going to get.
She sought the records to try to figure out if the city had provided services promised during annexation in the 1970s.
Her father had filed a lawsuit earlier over the issue, clearly a thorn in the city’s side who didn’t like the path the daughter was taking. The trial court judge even lectures Little in his ruling.
But the city, and the judge, missed the point. Public records are owned by the public. Public officials are stewards, not gatekeepers.
To the city of Chattanooga: Drop it. Another appeal would just throw good taxpayer money after bad.
–Written by Deborah Fisher, executive director of Tennessee Coalition for Open Government, a nonprofit alliance of citizens, media and good government groups that provides education and research on the state’s open government laws.