published Tuesday, February 25th, 2014

Fisher: Gender rules — make love, not war

Deborah Fisher

Rebecca Little is a young woman who works at her family’s bed and breakfast, Tennessee Riverplace, in Lookout Valley.

Her family has struggled with the city of Chattanooga to bring sewer and other services promised when the community was annexed in the early 1970s — or allow the area to de-annex.

Little just won a rather significant victory for citizens in this state who believe in open government.

Little has been locked in a public records suit against the city for almost three years. She had filed an open records request in 2011 seeking records that would document the progress of delivering services to her community.

But the city did not respond to her request as required by the Tennessee Open Records Act. So to gain access, she filed a petition in court.

The city did not deny it failed to properly respond to Little’s records requests, but it argued that it did not act willfully or with bad faith — an argument that Hamilton County Chancellor W. Frank Brown agreed with.

Brown noted bungling by the city and said, “The ball was dropped.” But essentially, no harm, no foul.

An appeals court found differently. It pointed to an email written by former Public Works Administrator Steve Leach to the Deputy City Attorney Phil Noblett asking if there was any way to seek an injunction against Little.

“I assume her motive is harassment of the staff in order to prove that she should be let out of the city,” Leach wrote.

When the city brought boxes of records to the first hearing, it announced that these were all the records she had requested. However, a few hours after the hearing, Little received an email from a city staffer who said she needed “search terms” to fill part of Little’s request related to emails — an acknowledgement that the city was still holding something back.

Those actions, the appeals court said, showed the city was willful in its denial of records.

Appeals Court Judge John McClarty wrote that evidence showed “the city did not ‘fulfill its duty’ to timely provide the records to Little because officials felt she was improperly using the Public Records Act provisions to obtain discovery for another lawsuit brought by her father.”

This is important, because if a governmental entity knows that it is obligated to produce records, but willfully decides not to, the law allows the citizen seeking access to be compensated for their expense of bringing a lawsuit.

The appeals court sent the case back to Chancellor Brown, who decided to award about $50,000 of Little’s $70,343 in expenses — determining her expenses were excessive.

Brown reasoned, among other things, that the work of one of the her attorneys, John Anderson, was duplicative and reflected a “mentoring” role, even though Anderson had given opening arguments and examined witnesses.

Again, an appeals court studied the evidence, and in an opinion this time written by a different judge, found that Brown based his decision on a “clearly erroneous assessment of evidence” and said Little was owed the full amount.

Little had spent money — lots of it — on a fight to enforce the public’s right to access to public documents, not knowing if she would get that money back. “At the end of the day, to me, it’s exciting that we finally prevailed,” she said. “But it’s also depressing because most people don’t have $70,000 to get public records. To me it says the average citizen doesn’t have access to public records.”

“When citizens don’t follow the law,” she added, “they are held accountable. It’s frustrating when the city doesn’t follow [the] law, no one holds them accountable.”

Citizen Little, I think you just did.

Deborah Fisher is executive director of Tennessee Coalition for Open Government, an alliance of media, citizens and good government groups that works to preserve and improve access to information.

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