News-Sentinel Editor Jack McElroy on police records and the Supreme Court decision

From Jack McElroy, editor of the Knoxville News Sentinel, in a column published Sunday:

Jack McElroy

Jack McElroy

Boy, did Gary Wade touch a nerve. The former Supreme Court justice dissented in the media’s lawsuit to see police records in the Vanderbilt rape case, and that really hacked off his fellow justices.

First, some background.

The Tennessee Public Records Act declares that all records are open to the public, “unless otherwise provided by state law.” The Legislature has passed scores of exemptions. But “state law” also includes the constitution, court rulings, common law, and regulations based on law.

In the Vanderbilt case, the News Sentinel joined a coalition seeking information gathered by Nashville police in their investigation of four football players accused of rape. The Tennessean, which launched the suit, especially wanted to find out if the university had any culpability.

The law governing release of police records has been Rule 16 of the Rules of Criminal Procedures, which deals with what lawyers must show each other in the discovery process. The media had long believed that only records excluded from discovery were exempt from the Public Records Act.

Gary Wade

Gary Wade

Wade agreed.

“The rule is silent as to the dissemination of discovery information to the public,” he wrote. So “the majority’s holding — that the rule prohibits the public disclosure of discovery materials — is flawed.”

That irked his colleagues. Chief Justice Sharon Lee, writing the majority opinion, attacked Wade personally: “The dissenting justice, in a thinly disguised effort to stir up controversy and garner public attention, argues that the Court has created a ‘public policy exception’ to the Public Records Act that only the General Assembly is authorized to enact. This is pure fabrication …”

Justice Sharon Lee

Justice Sharon Lee

Justice Holly Kirby wanted to reinforce the slap-down, so she wrote a concurrence attacking Wade’s opinion: “The only justification the dissent offers for its extreme position is purported deference to the legislature. This is, in the words of the late Justice Antonin Scalia, ‘pure applesauce.’ ” She borrowed further from Scalia’s colorful language by labelling Wade’s argument: ” ‘Jiggery-pokery,’ indeed.”

I’m no learned barrister, so it’s hard for me to understand how a rule about what lawyers must show each other could mean the public is banned from all records related to criminal investigations.

Given the ferocity of their attack on Wade’s dissent, it almost seems like the majority was frightened by the broad implications of the Public Records Act and felt it had to find a barrier to “preserve and protect the integrity of our state’s criminal justice system,” as Kirby put it.

Sadly, in their zeal, the justices also gutted the media’s ability to cover police as independent observers and watchdogs.

The days of “checking the police blotter” are now numbered. Police chiefs and sheriffs in any of Tennessee’s 300-plus municipalities and 95 counties can declare incident reports, 911 recordings, dash-cam videos, search warrant affidavits, blood-alcohol tests or whatever to be part of ongoing investigations and not subject to disclosure.

“Only the defendants, not the public, may receive information contained in the police investigative files,” Justice Lee concluded.

All the public is entitled to are the press releases.

What do you think?