Memphis investigative reporter Marc Perrusquia provided an outstanding overview in The Commercial Appeal on Sunday of the legal exemption for the Tennessee Bureau of Investigation that allows it to keep files of long-closed cases confidential forever.
A movement to open records of closed TBI cases — at least for investigations into police shootings where citizens have been killed — started last year as the city of Memphis began to grapple with the number of deaths, including a recent fatal shooting of a black teenager Darrius Stewart.
The story is reprinted here, with permission from The Commercial Appeal: Tennessee not alone in sealing police investigations.
By Marc Perrusquia of The Commercial Appeal
The nationwide focus on police shootings is gradually forcing state and local authorities to confront another public concern that lingered for years in the margins of news pages: police secrecy.
While the files of the FBI and other federal law enforcement agencies have been subject to public disclosure for more than 40 years, a number of states allow police to keep criminal investigation files confidential years after defendants go to prison, after leads dry up or a case otherwise is no longer active.
Journalists in Tennessee have long grumbled over a state law that allows the records of the Tennessee Bureau of Investigation to remain sealed even after cases are closed. Unlike the closed case files of the FBI, which are subject to release under the Freedom of Information Act, TBI’s records essentially can only be released by court order or subpoena or by legislative action, a rare and potentially costly proposition for most citizens.
Yet, an examination by The Commercial Appeal found Tennessee is far from alone.
At least one other state — Oklahoma — directs its state bureau of investigation to keep its files sealed, while several others including Virginia, Iowa, North Carolina, New Jersey and Kansas allow local police agencies to seal closed case files, the newspaper found.
But just as the fatal police shooting of black Memphis teenager Darrius Stewart prompted a judge’s order last month to release records, renewing discussion on possibly opening some TBI files through a proposed amendment to state law, questions about police conduct are forcing authorities in several states to wrestle with public demands for greater access.
“The attention that is being given to the officer-involved shootings or the use of Tasers by law enforcement or the beatings, these are bringing to the surface the questions about whether some of the public access laws are written as well as they could be,” said Randy Evans, an open government advocate in Iowa, where the fatal shooting of a 34-year-old woman last January led the state’s Public Information Board to vote last month to pursue legal action that attempts to force police in Burlington, Iowa, to release a video withheld under the state’s police investigation exemption.
“Without those cases … I don’t think there would be much likelihood of getting legislatures to revise the statutes to bring more openness to the laws,” said Evans, executive director of the Iowa Freedom of Information Council, a nonprofit that advocates for open government.
The push to open records in Tennessee is led by state Rep. G.A. Hardaway (D-Memphis), who is weighing a possible bill requiring the TBI to investigate officer-involved shootings statewide. Under an agreement reached in October, the TBI currently investigates officer involved deaths — shootings as well as suspicious deaths of citizens in custody — involving the Memphis Police Department and the Shelby County Sheriff’s Office. It also investigates deadly force incidents in the state’s rural counties.
Hardaway wants to expand TBI’s jurisdiction as a way to independently investigate all police use of deadly force in the state and avoid incestuous “blue family” inquiries in which police agencies investigate their own officers.
As part of his plan, Hardaway envisions making TBI files on deadly force open to public inspection once an investigation is closed.
“There’s no reason for these records not to be open,” he said. “We don’t want to take the chance of someone protecting special interests.”
The District 93 legislator says he’s told the law sealing TBI records “goes back to trying to protect government officials and moonshiners.”
Records held by the Tennessee State Library and Archives show the law passed in 1970 as the Legislature expanded the then-Tennessee Bureau of Criminal Identification’s duties, giving it power to investigate organized crime — “gambling, prostitution, loan sharking, narcotics, labor racketeering and other unlawful activities.” Previously, local authorities primarily investigated those crimes.
A related bill pushed by then-Gov. Buford Ellington also passed that session, closing the bureau’s investigative files. The measure met stiff resistance from then-state Sen. Ray Baird, D-Rockwood, a newspaper publisher and vocal open records advocate.
“The first thing that ever happened in totalitarian countries (run by) Mussolini and Hitler and other countries like that has been the closing off of all records and the public’s right to know,” Baird says on a tape recording of a Jan. 29, 1970 Senate debate.
” … I think we’re making a bad mistake. A very bad mistake.”
The measure that passed that day says the bureau’s investigative records “shall be treated as confidential and shall not be open to inspection.” It’s been used since to keep TBI’s files — open or closed — from public view, even as the agency’s responsibilities grew. The TBI helps investigate a wide range of matters from traditional criminal investigations involving murder and rape to homeland security concerns and public corruption.
Yet, tapes of the debate indicate the bill’s key co-sponsor, Sen. William Bruce, D-Memphis, didn’t envision such an absolute closing of the records.
Characterizing the measure as “a privilege to the bureau,” Bruce told colleagues “an individual could be refused access to information” under the new law, but “not necessarily would be refused.” It depends, he said, if the information had a “detrimental” effect. Bruce also seems to indicate on the tape that the closing of investigative records would be temporary:
“This is just simply giving the law enforcement people a right to retain the facts which they turn up until the disclosure, the proper timing for it, appears and the case is made out, so that we don’t give the organized crime or whatever is being investigated the chance to perhaps conceal additional facts which ought to be disclosed.”
Later, Bruce says, “I think we owe it to the people that we give the responsibility to make these investigations to at least let them keep the records confidential until the investigation is complete, until it is time to make disclosure.”
The statements appear to reflect the spirit of laws like that of Florida, which allows police agencies to withhold only files of active investigations involving “a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future,” or Georgia, which requires its Georgia Bureau of Investigation and other police agencies to release closed investigative files, including those involving cases “when all direct litigation involving said investigation and prosecution has become final or otherwise terminated.”
Reached by phone this month at his home in southern Georgia, Bruce, 80, said he no memory of the bill.
“I’m a little surprised I would be a prime sponsor of a bill like that,” he said. “I was not on the side of non-transparency.”
Baird, the bill’s chief opponent, is deceased.
TBI Director Mark Gwyn has been quoted as saying he would support “a mechanism” to open TBI files involving police shootings, but agency spokesman Josh DeVine clarified in an email that no bill has been filed yet, thus the TBI has no “official” position.
“At this time, the Director — and the agency — will defer to the will of the state legislature on the open records aspect of this issue,” DeVine said in the email. “We have concerns, however, about any potential bill requiring the investigation of all officer-involved shootings and in-custody deaths without the allocation of additional personnel and resources to accommodate the anticipated increase in casework.”
Hardaway, the legislator, said ultimately he’d like to see all of TBI’s closed files opened to public inspection, but said he doubts he and his colleagues have enough political capital to open anything more than police shooting files at this point — and even that will be a challenge.
“That’s not to say we shouldn’t come back and work at it,” he said.