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Clarke v. City of Memphis

Court of Appeals of Tennessee, Jackson

July 23, 2015


Session June 10, 2015.

Appeal from the Chancery Court for Shelby County No. CH13033371, Walter L. Evans, Chancellor.

Allan J. Wade, and Brandy S. Parrish, Memphis, Tennessee, for the appellant The City of Memphis.

Andrew Clarke, Memphis, Tennessee, Pro Se.

Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.



I. Background and Procedural History

On February 15, 2013, Andrew C. Clarke (“Mr. Clarke”), a Memphis attorney, wrote a letter to Senior Assistant City Attorney Chandell Ryan (“Ms. Ryan”) seeking “to inspect and potentially copy any and all documents provided to and/or received by the City of Memphis and the Memphis Police Department as a result of the Police Oversight Committee established by Mayor Wharton.” Mr. Clarke's letter indicated that his request was made pursuant to the authority in the Tennessee Public Records Act (“TPRA” or the “Act”), and he noted that his request included, but was not limited to, “all contracts, documents, payments, reports, [and] notes provided to and/or received from the City of Memphis, Bill Garrett, Bishop Mays[, ] and Reverend Keith Norman pertaining to [the] evaluation and oversight committee from any source whatsoever.” Although Tennessee Code Annotated § 10-7-503(a)(2)(B) required the City to respond to Mr. Clarke's records request within seven business days, Mr. Clarke did not receive a timely response.

Given the absence of a response, Mr. Clarke contacted the City again on February 27, 2013, to inquire into the status of his February 15 request. When still no response to his records request was forthcoming, Mr. Clarke contacted the City once more on March 6, 2013. Mr. Clarke's March 6 email stated that if the requested records were not made available for inspection immediately, he would have no option but to file a petition for access and to “seek appropriate attorney fees.”

On March 7, 2013, Mr. Clarke commenced the present action by filing a petition for judicial review in the Shelby County Chancery Court. In addition to seeking access to the requested public records, Mr. Clarke prayed that he be awarded reasonable costs and attorneys' fees pursuant to the authority in Tennessee Code Annotated § 10-7-505(g). On March 8, 2013, Ms. Ryan emailed Mr. Clarke and acknowledged that the City was in receipt of his public records request. Ms. Ryan's email stated that additional time was needed to process Mr. Clarke's request, and she informed him that he could “expect a follow up or any applicable records by March 22, 2013.” On March 22, 2013, Ms. Ryan contacted Mr. Clarke again and stated that the City still needed more time. She informed him that he could expect a response by March 25, 2013. By letter dated March 25, 2013, Mr. Clarke finally received the City's response to his public records request. In pertinent part, the City's response stated as follows:

We are in receipt of the enclosed request for public records. It appears that your request is the subject of pending litigation involving your client and the City of Memphis in the matter of Iris Wright v. City of Memphis. As this matter involves current litigation, it is subject to the rules of discovery under the Tennessee Rules of Civil Procedure.
* * * *
In an effort to ensure compliance with both the Tennessee Open Records Act and the Tennessee Rules of Civil Procedure, please process your request through the discovery process as part of the aforementioned litigation.

On the same day that he received the City's response, Mr. Clarke emailed Ms. Ryan to advise her that the basis for the City's objection was not supported by existing law. In particular, he quoted the Tennessee Supreme Court's decision in Konvalinka v. Chattanooga-Hamilton County Hospital Authority, which in part, states as follows:

It may very well be that the General Assembly neither intended nor anticipated that the public records statutes they enacted would be used by persons litigating with government entities to obtain records that might not be as readily available through the rules of discovery. However, at present, neither the discovery rules nor the public records statutes expressly limit or prevent persons who are in litigation with a government entity or who are considering litigation with a government entity from filing petitions under Tenn. Code Ann. § 10–7–505(a) seeking access to public records relevant to the litigation. A growing number of courts, construing public records statutes similar to ours, have decided that persons should not be denied access to public records solely because they are involved, or may be involved, in litigation with a governmental entity.

Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 360-61 (Tenn. 2008) (internal citation omitted).[1] Mr. Clarke contacted the City again on March 26, 2013, by sending an email to Deputy City Attorney Regina Newman (“Ms. Newman”). In his email to Ms. Newman, Mr. ...

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