Marc Perrusquia, a journalist whose reporting has exposed problems in the Memphis police department, has filed a lawsuit challenging the city’s denial of access to documents that would show how the city responded to a history of trouble with three officers.

Mark Perrusquia

Perrusquia is seeking access to the written performance improvement plans of the officers, two of which no longer work for the police department after resigning or quitting amid controversy.

The non-disciplinary documents are plans agreed upon by a supervisor and an officer and are designed to provide guidance to the officer who has been identified for at-risk behavior.

The city of Memphis denied the public records request, citing the Tennessee Public Records Act broadly but without specifying a relevant exemption.

Perrusquia is represented by Paul McAdoo, an attorney with the Reporter’s Committee for Freedom of the Press Local Legal Initiative. The lawsuit was filed in Chancery Court in Memphis on April 26.

Documents would show how city deals with police problems

“Public oversight of government and its employees, including of law enforcement entities and officers, is necessary in a democracy; facilitating such oversight is the fundamental purpose of the TPRA. Here, Mr. Perrusquia seeks public records that would shine a light on how the City and the Memphis Police Department (“MPD”) seeks to improve the performance of MPD officers who have been found to have violated MPD rules, including the rules against the use of excessive force, through non-disciplinary measures,” the lawsuit states.

Perrusquia argues that no exemption in state law makes the performance improvement plans confidential. The city cited T.C.A. § 10-7-504, which has about 60 distinct exemptions covering a broad range of topics, but failed to specify which one was the basis of the denial.

Though not cited by the city, one of the exemptions allows confidentiality regarding employment assistance programs, but this exemption only covers programs for diagnosis and treatment of employees “who are impaired by personal concerns” such as alcohol or marital programs “which may adversely affect employee job performance.”

The Performance Enhancement Program operated by Memphis police does not meet the definition of an employee assistance program as defined by the statute, Perrusquia argues. It is a management tool targeting officers who fall short on certain performance measures — such as non-lethal use of force, vehicular pursuits, traffic crashes, citizen complaints and on-the-job injuries.

Attorney Paul McAdoo

Lawsuit distinguishes plans from employee assistance programs

Much of the memorandum of law filed with the lawsuit details what Perrusquia knows about the Performance Improvement Plan program to help explain why it is not an employee assistance program.

The lawsuit also includes legislative history of the employee assistance program exemption in which lawmakers clearly distinguish the EAP from other personnel files. “I would hate to see a situation where someone … suddenly designates their entire personnel program an employee assistance program and closes down every personnel record in the city, the county or in some other place,” said then-Rep. Bill Purcell during a House Judiciary Committee meeting in 1991.

“To that end, the General Assembly accepted an amendment that provided that EAP records under Tenn. Code Ann. § 10-7-504(d) must be maintained separately from other, open records,” the lawsuit states. It quotes Purcell from the legislative record saying, “There was never any intention by the sponsor … for [EAP] records, frankly to commingle with other records. But this will just clarify that those records that are already open remain open, remain separate; and the employee assistance program records, which are necessary for their purposes, will be closed.”

Lawsuit: City did not cite applicable exemption, judge should award attorney fees

Lawsuit Perrusquia’s lawsuit also asks for the chancellor to award attorneys’ fees and costs, which are allowed under the statute “if the court finds that the governmental entity, or agent thereof, refusing to disclose a record, knew that such record was public and willfully refused to disclose it.”

The lawsuit points out that the Court of Appeals has “stressed that willfulness should be measured ‘in terms of the relative worth of the legal justification cited by the (government entity) to refuse access to records… If a municipality denies access to records by invoking a legal position that is not supported by existing law or by a good faith argument for the modification of existing law, the circumstances of the case will likely warrant a finding of willfulness.”

“The City’s responses in the instant case … did ‘not articulate a valid reason as to why [the] records request cannot be entertained,'” the lawsuit says.

“…There is no question that the records exist, and there is no applicable exception under the TPRA for Performance Improvement Plans. The City’s citation to Tenn. Code Ann. § 10-7-504, for the reasons set forth above, is meritless. The City should not avoid an award of reasonable costs, including attorneys’ fees, where it cited a plainly inapplicable exemption in an attempt to shield public records from public scrutiny. Based on the facts of this case and the current state of the law, the City should be found to have willfully refused Mr. Perrusquia’s public records requests.”

A court date has not yet been scheduled.