By Deborah Fisher, TCOG Executive Director
Spectators packed the courtroom June 9 for oral arguments in the appeal of the public records case, The Tennessean et al v. Metro Government of Nashville.
The petition was brought by The Tennessean and a media coalition after it requested to see crime records collected by police concerning an alleged rape at Vanderbilt University, and were denied access.
So many people filled the rows of the appellate court that it prompted Judge Frank G. Clement to make a light note that the court usually doesn’t draw such a crowd.
But the room quickly grew serious as lawyers began their arguments and the three appellate judges – Clement, Richard H. Dinkins and W. Neal McBrayer – almost immediately started peppering them with questions and comments.
How do we consider your (the media’s) constitutional rights and not the victim’s rights?
Is one option expanding use of the protective order?
Under what constitutional parameter does (access) have to be now (instead of later after the trial)?
When does Rule 16 (governing discovery in a court case) come into play? After prosecution is initiated?
Everything in this case has already been provided to defense counsel.
Are you suggesting everything in Metro’s file –once it is turned over to prosecution – that it becomes work product (and thus protected)?
Are you suggesting a victim has absolute veto on any release of information?
The victim’s rights statute talks about protection from intimidation by the defendant and his alliances (not the public or media at large).
These were just a sampling of the judges’ questions and comments, and no time frame was given on when a decision by the judges might be reached.
What’s at stake
The case is important because it centers on just how much information regarding crimes that police and sheriff’s departments are allowed, or required, to keep confidential, or even when and if certain information should be released.
Several media outlets joined the Tennessean in the lawsuit — the Associated Press, Knoxville News-Sentinel, The Commercial Appeal, Chattanooga Times Free Press, WTVF Channel 5, WSMV-TV Channel 4, WZTV Fox 17 Nashville, Tennessee Associated Press Broadcasters, WBIR-TV Channel 10. The Tennessee Coalition for Open Government also joined.
The media made clear they are not seeking video or pictures that may have been taken of the alleged victim. That information is already under protective order in the criminal court and is shielded from a public records request, but the specter of the potential release of pictures continues to be raised by the victim’s attorney.
On March 12, Chancellor Russell Perkins, granted the coalition access to some of the records, including texts and emails sent by the defendants during or after the alleged crime, but stayed the order until the case could be appealed.
The decision by the appellate judges could have wide implications. It has been a contention by some law enforcement agencies that any information related to a case “under investigation” can be held back from the public at their discretion, and many have done so. In the most frustrating scenarios, this has led to media and citizens unable to see a simple incident report that contains basic information about a crime reported to police, like where crimes are being reported.
In this case, the media coalition argues that the law limits the types of crime information that can be withheld, and more specifically, that law enforcement cannot withhold information collected from third parties and not “made by” law enforcement.
Protecting public access to police records is important for citizens to know about crime in their community.
And Tennessean editor Maria De Varenne has said that it is “important for us as watchdogs for the public to look into and shed light on how the government, including the police and the DA’s office, handled this significant case involving Vanderbilt and its football program.”
Perkins, in his ruling, noted the crux of law providing access to public records is to shed light on government activity.
The limits of Rule 16(a)(2)
The arguments mostly center on Rule of Criminal Procedure 16(a)(2). In an amicus brief filed by the Tennessee Press Association, attorney Rick Hollow explains the background on how Rule 16(a)(2) came to be an exception to the Tennessee Public Records Act.
Rule 16 basically governs what evidence defense attorneys are entitled to get from the state in an active criminal court case, and what they can’t get. 16(a)(2) outlines specifically what is not subject to disclosure:
“… this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.”
In 1985, two criminal defense lawyers representing inmates implicated in the murder of another inmate tried to circumvent Rule 16 and instead use the Tennessee Public Records Act to get more information than what the rule would have allowed in criminal court. The Tennessee Supreme Court in its 1987 ruling in Appman v. Worthington said they couldn’t do that — that records protected under Rule 16(a)(2) would be exempt from the public records act.
One of the arguments in The Tennessean et al v. Nashville is that Rule 16 only exempts what is specifically prohibited from disclosure to the defense. It doesn’t extend to items that are not covered under Rule 16; therefore anything disclosable to the defense attorneys is disclosable to the public and not exempt. (In this case, the records The Tennessean and media asked for have already been provided to defense.)
Rights to a fair trial
The city, through attorney Lora Fox, and Deputy Attorney General Janet Kleinfelter have argued that turning over what could become evidence in a trial, before it is entered into the trial, would lead to publicity that would interfere with the constitutional right of the defendant to a fair trial.
The media coalition’s attorney, Robb Harvey, has said there is no evidence that disclosure of information would threaten the defendant’s right to a fair trial. But that the criminal court judge has a range of options to ensure a fair trial if the issue is raised by the defense attorneys, which has not happened.
The city has also asserted that there is a “temporal distinction” between protected an unprotected records, and in oral arguments, Fox asserted that while police are in control of records, the Tennessee Public Records Act governs, but once information is turned over to the district attorney, Rule 16 comes into play.
In its brief, Metro argued: “Police investigative records may be subject to disclosure during the initial information-gathering stage prior to an open and pending criminal investigation taking shape. Schneider, 226 S.W.3d at 345-346. Then, during the time period in which a criminal investigation is “open and pending,” the police investigative files are protected from Public Record Act disclosure.”
Do victims’ rights play a role?
Jane Doe, the alleged rape victim, has also intervened in the case to assert rights under the Victims’ Bill of Rights and the Tennessee Constitution. Her attorney, former U.S. Attorney and criminal defense lawyer Ed Yarbrough, argues that the law allows victims to be free from intimidation and harassment, which he says would occur if records in the case were released.
In oral arguments, Yarbrough called upon the appellate court to fashion a “discretionary veto” for the victim over the types of information that could be released to the public in any criminal case.
In an amicus brief filed by the Tennessee Association of Broadcasters, attorney Doug Pierce argues that the few confidentiality provisions that exist in the Victim’s Bill of Rights do not exempt from disclosure the public records requested in the Vanderbilt case and the statute should not be interpreted by the judiciary as a blanket exception to the Tennessee Public Records Act.
Pierce also points out how active the Legislature has been creating more than 350 specific exemptions to the Tennessee Public Records Act, including one in the past session in which identifying information about a sexual assault victim would be confidential after a guilty finding or plea.
The introduction of any victim’s veto over the release of public records related to crime – as Yarbrough suggested — could be complicated on a practical level and introduce new issues related to the accused’s rights. It was unclear if the judges in the hearing were receptive to Yarbrough’s passionate plea for such action. Or even if the city of Nashville or law enforcement in general would support such a measure.
Stay tuned for the judges’ decision.
TCOG is an alliance of media, citizen and civic groups that seeks to promote and preserve transparency in government through education and research. Fisher can be reached at firstname.lastname@example.org.