By FRANK GIBSON
Public Policy Director for Tennessee Press Association
As unbelievable as it might sound, it has taken 27 years to find a case to challenge the way local law enforcement has abused and exploited a state Supreme Court ruling to make it difficult for the press to cover crime in our communities.
Reporters and editors will recognize it as the “matter under investigation” excuse for denying public records. Contrary to what a sizeable segment of Tennessee’s law enforcement community thinks, it is really not an blanket exemption to our Public Records Act. A case called Appman v. Worthington has been the bane of editors and reporters, particularly police reporters, since 1987 because it left a nagging question of what can and should be released about reports of crime and what should not.
Some will remember an audit of law enforcement records by TCOG almost 10 years ago that found 45% of sheriffs and 33% of municipal police departments surveyed refusing to release reports of recent burglaries in their communities. Most argued they were allowed to withhold the “offense/incident” reports because they were part of the department’s “investigative file.”
The opportunity to challenge that interpretation comes in a lawsuit by The Tennessean and a coalition of 10 print and broadcast media organizations and The Tennessee Coalition for Open Government. They are seeking records collected in the investigation and arrest of four (now former) Vanderbilt University football players accused of raping a student in a campus dormitory. She was reportedly unconscious at the time.
The coalition won a partial victory in Davidson County Chancery Court last month and is appealing the other parts to the state Court of Appeals. The Tennessee Press Association and the Tennessee Association of Broadcasters plan to file amicus briefs in support of the coalition’s appeal and to help preserve the victory already won.
It should be noted that the coalition is up against a different sort of coalition that includes the Metro Police Department, represented by the Metro-Davidson County Law Department; the Davidson County District Attorney General, represented by the state Attorney General and the former U.S. Attorney for Middle Tennessee, who represents the victim as “Ms. Jane Doe.”
The victim’s name has been known to the news media for months but under the policy and practice of news organizations no one has published or broadcast her name.
Media lawyers and many journalists (including me) have been waiting for a chance to challenge this “exemption” because it is really not an exemption. Davidson County Chancellor Russell T. Perkins last month gave the answer we’ve been arguing for several years – without much success.
Public records question
The rape allegedly occurred on June 23 last year but did not become a matter of public knowledge until Aug. 10 – the date of the indictment. When The Tennessean asked for certain records in the case, the MPD refused, claiming they were confidential under Rule 16 (a) (2) of the Rules of Criminal Procedure. The rule states:
“This rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the District Attorney or other state agents or law enforcement in connection with investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.”
The rule exists to restrict what defense attorneys in criminal cases are entitled to get from prosecutors, not to keep public information out of the hands of the public.
The keywords in Rule 16 are “INTERNAL” and “MADE BY,” but police and prosecutors have argued for years that it covers the entire file. In earlier court cases, police had argued they had an absolute “general law enforcement” exemption that allowed them to withhold anything they want. The state Supreme Court shot that down seven years ago.
Chancellor Perkins noted that there is “no broad law enforcement privilege” that falls within the Public Records Act mandate that public records are open “unless otherwise provided by state law.” He also noted the state Supreme Court has “consistently held there is a presumption in favor of access to public records.”
“Taking a case-by-case view as a trial court, the Court concludes that exempting all the records from review under Rule 16(a)(2) would be tantamount to adopting a law enforcement privilege for pending criminal cases that may not necessarily be called for by the language of 16 (a)(2),” Perkins wrote.
“The Court concludes that records submitted to Metro Police Department that were not developed internally and that do not constitute statements or other documents reflecting the reconstructive and investigative efforts…are outside the expansive reach of Rule 16(a)(2),” the chancellor held.
The Tennessean sought records collected from third party sources, things like text messages between the football players and friends (some in California), and university surveillance video (with images of the victim removed). There were reports one of the alleged attackers videotaped the assault with a smart phone camera and shared it with friends, but the newspaper did not request that. The Criminal Court judge had granted a protective order for all photographs and even the Chancellor did not examine those.
Perkins said the news organization were entitled to see text messages (with any attached photos removed) because “texts do not reflect mental impressions or investigative tactics of the Metro Police Department.”
“The court declares that certain of the records plaintiffs have requested are public records that do not fall into any exception recognized” by law, he said, while staying his decision pending appeal.
In the Appman case an inmate at Morgan County Regional Correctional Facility was murdered. The prison’s internal affairs department investigated. Lawyers for one of several inmates indicted in the case tried to get the investigator’s records using the public records act. The implication at the time was that defense lawyers were seeking an advantage by going around court rules on discovery in Rule 16(a) (2).
The true irony in this situation is how long Rule 16(a) (2) has been used to get around the requirements of the Tennessee Public Records Act.
Frank Gibson is public policy director for the Tennessee Press Association and founding director of TCOG. He can be reached at 615-202-2685 or firstname.lastname@example.org.