The Reporters Committee for Freedom of the Press, the Tennessee Association of Broadcasters, the Thomas Jefferson Center for the Protection of Free Expression and the University of Virginia School of Law First Amendment Clinic have file an amicus brief with the Tennessee Supreme Court, arguing that a lower court’s ruling went too far in saying law enforcement had the right to keep from public view a broad swath of police records.
The case, The Tennessean et al. v. Metropolitan Government of Nashville and Davidson County, started after the newspaper requested to see certain police records about a reported sexual assault in a Vanderbilt University dorm room. A trial court ruled that the newspaper, and a media coalition who had joined in the public records lawsuit, had a right to see some records, but not all. However, the Court of Appeals in Nashville overturned the trial court and said in a 2-1 ruling in September that any records of a local police or sheriff’s department that are relevant to a pending or contemplated criminal proceeding are exempt from the Tennessee Public Records Act. (See Chancellor Russell Perkins Sept. 30 ruling.)
The Tennessee Supreme Court agreed to hear an appeal on the case, and the media coalition, represented by Robb Harvey, filed its Supreme Court brief earlier this month. In the amici brief, the four organizations argued that the trial court misinterpreted previous Tennessee Supreme Court rulings about law enforcement records, and that the misinterpretation would have a “dramatic, damaging effect on the ability of the press to keep the public informed on the activities of law enforcement and related agencies.”
The Tennessee Public Records Act, Tenn. Code Ann. 10-7-503 et seq. is a vital tool for this state’s news media, who use it to gather information and keep Tennesseans informed of the workings of their government. Amici, as organizations and institutions dedicated to ensuring the media’s ability to gather the news and report stories of public concern, are deeply troubled by the decision of the Court of Appeals in this case. The decision effectively creates a broad and unwarranted law enforcement exemption to the TPRA that is wholly unsupported by law and, if adopted by this Court, would have a dramatic, damaging effect on the ability of the press to keep the public informed on the activities of law enforcement and related agencies.
The brief makes arguments that the Appeals Court’s adoption of Tennessee Rule of Criminal Procedure 16(a)(2) as a blanket law enforcement exception was an “unduly expansive and unwarranted interpretation of Rule 16(a)(2), disregarding its clear language and this Court’s precedent.”
Rule 16(a)(2) governs discovery in a criminal proceeding — what prosecutors must give defense, and what they can withhold. It was first adopted as an exemption to the Tennessee Public Records Act in a case of a prison inmate slaying. The defendants, also inmates, could not get certain Department of Correction records during discovery because of Rule 16(a)(2), so they requested the records under the Tennessee Public Records Act instead. The Tennessee Supreme Court ruled that they could not do that. If the records could be kept from disclosure under 16(a)(2), they were also exempt from the public records act. In the Vanderbilt police case, the records sought by the media coalition had already been given to defense.
The brief outlines the impact of the Court of Appeals ruling, if allowed to stand, and gives several examples of newspapers or television stations in the state who have used the Tennessee Public Records Act to obtain law enforcement records to provide public oversight of law enforcement activities. They cited a story in The Daily Times in Maryville about a Blount County sheriff’s deputy that mistakenly shot and killed an innocent property owner, a News Channel 3 story in Memphis about a Covington police officer who was arrested for buying a gun from a convicted felon, and a Tennessean story about the treatment of sexual abuse victims by law enforcement found in a report that had been shortened and summarized for the public, leaving out key parts. Other stories were also cited where records were used to bring to light crime in Shelby County schools and potential violations of the state’s Open Meetings Act by a 911 Board of Directors in Knoxville. In the latter example, the mayor of Knoxville ordered more training on sunshine laws after the Knoxville police chief who sat on the board admitted he wasn’t aware of the law’s requirements.
These stories are just a small fraction of those that have been made possible as a result of the TPRA over the last years. They show that the people of Tennessee rely on the press to gain access to government records on issues that affect their everyday lives so that they can take corrective action when it is needed. Allowing a broad law enforcement exemption to the TPRA could prevent these stories from being made public, thereby leading to a deprivation of crucial information, and preventing Tennesseans from engaging in their right to self-govern.
Note: The Tennessee Coalition for Open Government joined the media coalition in the case as a plaintiff. In a blog post last year, we looked at increasing problems accessing basic police records: Does the public have a right to see police incident reports?