Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jetmore v. City of Memphis

Court of Appeals of Tennessee, Jackson

September 26, 2019

BRADLEY JETMORE
v.
CITY OF MEMPHIS

          Session June 19, 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

          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.

          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.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         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 the City's request for a protective order.

         On appeal, the City does not dispute the trial court's conclusion in its final judgment that the City's "justification for the redaction was the threat of potential liability for each alleged improper disclosure of personal information under Tennessee Code Annotated § 55-25-104, as posed by the federal lawsuit styled Price . . . ." Tennessee's Uniform Motor Vehicle Records Disclosure Act ("UMVRDA"), codified at Tennessee Code Annotated §§ 55-25-101 – 55-25-111 (2017), provides in § 55-25-104 (2017):

Notwithstanding any other law to the contrary, except as provided in §§ 55-25-105 – 55-25-107, the department, and any officer, employee, agent or contractor thereof, shall not disclose personal information about any person obtained by the department in connection with a motor vehicle record.[4]

         The federal action in Price was initiated by two plaintiffs who had been involved in separate automobile accidents in Memphis and objected to telemarketing contacts they subsequently received after the City had purportedly disclosed personal information from the plaintiffs' crash reports to third parties. Price, 2018 WL 6531751, at *1. The Price plaintiffs alleged that the City had violated Tennessee's UMVRDA and the federal Driver's Privacy Protection Act ("DPPA"), codified at 18 United States Code §§ 2721-2725. See Price, 2018 WL 6531751, at *2; see generally Reno v. Condon, 528 U.S. 141 (2000). An amended complaint in Price, filed in this action by the City as an exhibit to its motion to dismiss, reflects that the plaintiffs also requested that the federal district court certify a class consisting of "all other similarly situated individuals who had their personal information exposed and/or used in violation of the DPPA" to render Price a class action lawsuit.

         The City has maintained before the trial court and on appeal that "the issue to be resolved in both the case before this Court and the Federal Case [Price] is whether this information [contained in traffic accident/crash reports] is subject to Tennessee's [UMVRDA]." The City argues that if the information is subject to the UMVRDA, Tennessee Code Annotated § 10-7-504(a)(12) would operate as a qualified exception to the right of inspection of a public record provided for in § 10-7-503(a)(2)(A). Tennessee Code Annotated § 10-7-504(a)(12) (Supp. 2019) states:

Personal information contained in motor vehicle records shall be treated as confidential and shall only be open for inspection in accordance with title 55, chapter 25.

         Mr. Jetmore has asserted before the trial court and on appeal that crash reports are not subject to the UMVRDA. In support of this assertion, Mr. Jetmore relies in part on Tennessee Code Annotated § 55-25-103(8) (2017), which provides:

"Personal information" means information that identifies a person, including an individual's photograph, or computerized image, social security number, driver identification number, name, address excluding the five-digit zip code, telephone number, and medical or disability information, but does not include information on vehicular accidents, driving or equipment-related violations, and driver license or registration status[.]

         On March 23, 2018, Mr. Jetmore filed in the trial court depositions of testimony presented by two representatives of the City: MPD Sergeant William Porter, who testified concerning the policies, procedures, practices, and guidelines employed by MPD officers in creating crash reports, and MPD Supervisor of Records Ruth Murray, who testified concerning policies, procedures, practices, and guidelines for the maintenance of and public access to crash reports in the three years preceding this action. Mr. Jetmore also filed excerpts of legislative history surrounding the 1998 amendment of Tennessee Code Annotated § 55-10-108 ("1998 Amendment").

         The relevant portion of the 1998 Amendment added subsection (f), which in the version applicable at the time that Mr. Jetmore commenced the instant petition provided:

Any report of a motor vehicle accident investigated by the department or prepared pursuant to subsection (b) shall be open to public inspection as a public record under the public records laws compiled in title 10, chapter 7. It is an offense punishable as a Class A misdemeanor for any person to knowingly use the report or information contained in the report for solicitation that is prohibited by a standard of conduct or practice of any profession licensed by the state.

See Tenn. Code Ann. § 55-10-108 (2017); see also 1998 Tenn. Pub. Acts, Ch. 886 § 3 (H.B. 3012).[5] As used in this part of Title 55, "'Department' means the department of safety." Tenn. Code Ann. § 55-8-101(18) (Supp. 2019).

         Following a non-evidentiary hearing conducted on April 6, 2018, the trial court set forth a ruling from the bench and requested that the parties submit findings of fact and conclusions of law for review. On June 6, 2018, the trial court entered a "Judgment Granting Relief Pursuant to T.C.A. § 10-7-505 and Order Denying Defendant's Motion to Dismiss and Granting Stay, " along with "Findings of Fact and Conclusions of Law." In its conclusions of law, the court found, inter alia, that (1) the TPRA required "prompt access" to public records, (2) "crash reports are historically public records that are not exempt from disclosure, " (3) the doctrine of prior suit pending was not applicable to this case, and (4) the City's "action in redacting records and delaying their production" was not willful. In its judgment, the court determined in pertinent part:

In opposition to [the City's] Motion To Dismiss, [Mr. Jetmore] argues that "crash reports" are not included within the proscription of the UMVRDA, T.C.A. § 55-25-104. [Mr. Jetmore] submits that Section 55-25-103(8) provides that the proscription against disclosing personal information "does not include information on vehicular accidents, driving or equipment related violation, and driver license or registration status." [Mr. Jetmore] also argues that [MPD] is not equivalent to the "Department" as defined in 55-25-103(1).[6]
On these two points, the Court agrees with [Mr. Jetmore]. The [MPD] does not fit the definition contained in T.C.A. § 55-25-103(1) as an "agent[] or contractor[] [. . .]" thereof, responsible to compile and maintain motor vehicle records. More importantly, the Court concludes the "crash reports" discussed in both lawsuits are synonymous with, and the same as, reports on vehicular accidents and therefore the information collected therein is expressly excluded by the statute. See Section 55-25-103(8).
Moreover, Tenn. Code[] Ann. § 55-10-108(f) provides that "any report of a motor vehicle accident investigated [by the department or prepared] pursuant to subsection (b) shall be open to public inspection as a public record under the public record laws compiled in title 10, chapter 7."
When read together the plain meaning of these two statutes, T.C.A. § 55-25-103(8) and T.C.A. § 55-10-108(f), leads the Court to the inescapable conclusion that the legislature intended to allow the disclosure of the personal information captured in vehicular accident reports. . . .
The Court renders judgment in Favor of [Mr. Jetmore]. However, the Court certifies that there exists a substantial legal issue with respect to the disclosure of the documents, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.