Request to appeal Vanderbilt records case aims to settle what police can withhold from public

The Tennessean, seven other media outlets, the Tennessee Association of Broadcasters and Tennessee Coalition for Open Government have filed a request with the Tennessee Supreme Court to appeal a lower court’s ruling concerning what police can withhold from public view.

The Court of Appeals in Nashville in a Sept. 30 ruling said that if a local law enforcement agency claims information is relevant to an ongoing criminal investigation, that information can be exempt from the Tennessee Public Records Act. Appellate Judge Neal McBrayer dissented, saying the specific police information requested in The Tennessean’s case did not fall under a previously recognized exemption that protects some, but not all, information in a police file.

The case began when The Tennessean requested certain records from the Metro Nashville police department who were investigating an alleged rape of a student in a Vanderbilt University dorm room in which football players were accused.

Police denied access to the records, citing Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure, which governs what prosecutors must give to defense, and what they can withhold, as part of a trial. In this case, the trial court judge determined some of the records did not fall under the 16(a)(2) exemption.

The media coalition and TCOG asked for permission to appeal, in part to settle questions of law. From the filing:

While several Tennessee cases address the interplay between the Public Records Act and Rule 16(a)(2), none answer the precise question raised here: does Rule 16(a)(2) (contrary to its language) somehow create a blanket exemption to the Public Records Act for records not “made by” the District Attorney general, law enforcement or other state agent (or constituting “witness statements”) and that must be produced to defense counsel? In this case, the requested materials have been provided to the defendants in the criminal case and thus fall outside the rule’s scope. Nonetheless, the Government Parties assert Rule 16(a)(2) as a blanket bar to disclosure. The dissent point out this incongruity: “In this case [Metro] conceded in both its brief and in oral argument that the material sought by the Petitioners had been provided to the criminal defendants, placing the materials outside the scope of materials described in Rule 16(a)(2).”

Maria De Varenne, news director for The Tennessean, explained in an article her organization’s reasoning for the appeal: “The importance of public documents is paramount. The current ruling will have broad, sweeping consequences for how much the public can know, making it possible for a law enforcement agency to withhold public information that a crime has even occurred. And that scope of withholding public information does not align with the Tennessee Constitution or the Tennessee Public Records Act.”

Robb Harvey and Lauran Sturm with Waller Lansden Dortch & Davis LLP are representing the media group. Judge Richard Dinkins wrote the appellate decision.

You can read the filing with the Tennessee Supreme Court here:  Application for Permission to Appeal.

Previous TCOG blog posts on access to crime records:

Dinkins opinion in public records case expands police secrecy powers

When police shoot a citizen, public records can shine light

Does the public have a right to see police incident reports?

Will Vanderbilt rape case provide answer to nagging public records question?

What do you think?