The Court of Appeals last week ruled that an audio recording in a murder trial was a public record and should be filed with the criminal court clerk as part of the public case file.
The case arose from a dispute in East Tennessee in which a Union County judge refused to provide to Kevin Waggoner the audio recording of his trial. Waggoner had been convicted of killing his neighbor and sentenced to 18 years in prison.
Waggoner believed that material from the proceedings was omitted from the official trial transcript and wanted a copy of the full audio recording to compare.
Judge refuses to give defendant audio recording of his trial
Eighth Judicial District Criminal Court Judge Shayne Sexton kept the audio recording in his office and declined to provide Waggoner a copy, saying that the audio recording existed only for backup purposes and if it was released to Waggoner, he or his family might alter it “to create the appearance of an inaccuracy in the official trial transcript.”
Sexton contended the audio recording was not a part of the official record of the trial proceedings and was only to assist the court “in its own deliberative process and to assist the court reporter in the preparation of the official transcript.”
Court: Audio recording is part of the court record
Though Davidson County Chancellor Patricia Moskal agreed with Sexton, the Court of Appeals did not. In an opinion written by Judge Kristi M. Davis and joined by judges Steven Stafford and W. Neal McBrayer, the court overturned the lower court, ruling that the statute clearly requires a court reporter who makes a verbatim recording of a trial to file the recording with the court clerk, along with the official transcript, as part of the court records of the trial.
Judge Kristi M. Davis
“For more than a century, Tennessee Courts have recognized the public’s right to inspect governmental records. This right extends to court records,” Davis wrote.
Because state law requires the criminal court clerk to store and maintain audio recordings, “(t)here can be no doubt, then, that the audio recordings are ‘public records’ for purposes of the (Tennessee Public Records) Act” and the public has a right to inspect and make copies of those records unless otherwise exempted by law.
Judge rejects ‘deliberative process’ argument
The attorney general’s office, who represented Judge Sexton and the state of Tennessee, also argued that the records would be exempt from disclosure under Tennessee Supreme Court Rule 34, which exempts “written or electronic conference records, notes, memoranda, reports, or other documents of a similar nature created or received as part of a court’s judicial or administrative deliberate process unless intentionally filed as part of the Case Record.”
It also exempts from disclosure any “written or electronic record the disclosure of which would frustrate or interfere with the judicial function of the courts or potentially undermine the inherent constitutional powers granted the court…”
Davis wrote that while Rule 34 does not define conference records, “it strains credulity that ‘conference’ records refers to verbatim audio recordings made by a court reporter. Audio recordings are created by court reporters as mandated by statute, as opposed to ‘conference’ notes or memoranda created by or at the behest of a trial judge. Further, while Appellees urge that the audio recordings are a part of Judge Sexton’s ‘deliberative process, it has never been explained how this is so or what Appellees mean by ‘deliberative process.’
She also emphasized that Rule 34 makes clear that the exception related to the court’s “deliberative process” does not apply to records “intentionally filed as part of the Case Record.” Because state law requires court reporters to file their verbatim recordings with the court clerk as part of the clerk’s case record, Rule 34 would not apply to these records.
Davis also wrote that it was not evident how disclosure would interfere with judicial function or undermine the court’s constitutional powers.
Though Judge Sexton was concerned Waggoner might alter the audio recordings, Davis said “the same could be said for any electronic public record subject to disclosure, and this argument is not grounded in any legal authority.” Also, nothing suggests that Waggoner be given anything but a copy of the original recording, not the original recording itself.
Will Davidson County Rule on recordings be changed?
The opinion refers to another case, State ex rel. Wilson v. Gentry, in which the court of appeals in a per curiam decision upheld a lower court’s denial of access to audio recordings of a post-conviction hearing in Davidson County. The state argued that this precedent should be used to decide the Waggoner case.
In that case, the judge had denied access to recordings, citing to a Davidson County Local Rule that “no one is to have access to the audio-visual recordings of court proceedings except for ‘Judges, Chancellors, and full time court staff…’ ” The judge had said the audio-visual recordings in Davidson County courts are made for the purpose of aiding the court reporter in generating transcripts and pick up conversations occurring at the lawyers’ tables and comments between the judge and his staff.
Davis wrote that there were factual differences in the Gentry and Waggoner cases. For one, the judge denied the request based on a local rule of the court and the propriety of that rule was not raised in the case. The judge had also found that sensitive material, such as private conversations, were on the audio. No such claims were made in the Waggoner case.
While the Waggoner ruling did not address the Davidson County Local Court Rule, the Waggoner ruling makes clear that state law requires audio recordings made to assist the court reporter should be filed with the court clerk as part of the case file. It would appear to follow that unless another exemption applied, the recordings would be available to the public.
