TCOG, Associated Press, Gannett, Sinclair, others file amicus brief in “investigative records” case

Several news organizations and the Tennessee Coalition for Open Government have filed an amicus brief in a case under appeal in which ordinary public records were swept into an investigative file and then deemed confidential.

The case, Scripps Media, Inc., v. Tennessee Department of Mental Health and Substance Abuse Services and TBI, arose after Nashville NewsChannel 5 investigative reporter Phil Williams requested travel records, phone logs and credit card purchase summaries from the two state agencies.

The agencies denied the request, citing the law enforcement “investigation” exemption.

The records, they explained, had been requested by the district attorney as part of an investigation into potential misuse of funds.

NewsChannel 5 filed a petition for access, but Davidson County Chancellor Anne Martin agreed with the state, saying that a 2015 holding by the Tennessee Supreme Court “mandates a broad protection for documents in the possession of an investigative agency relevant to a pending or contemplated criminal action, even if the documents originated from another State agency and were created in the ordinary course of business.”

The news organizations who are part of the amicus brief are The Associated Press, Gannett Co., Inc., Gray Television Group, Inc., Sinclair Broadcast Group, Inc., and Tribune Media Company.

Attorney Paul McAdoo argues in the brief that the trial court expanded the Supreme Court’s ruling contrary to the Tennessee Public Records Act that requires broadly construing the law to give the “fullest possible access to public records.” And, McAdoo argued, that the 2015 ruling in Tennessean v. Metro Gov’t of Nashville and Davidson County does not apply because of the factual differences between the cases. In that case, The Tennessean requested parts of the Nashville police department’s investigative file in relation to a rape of a Vanderbilt student by football players.

Attorney Paul McAdoo

“The question at the heart of this case is whether the Tennessee Supreme Court’s decision in the Tennessean case, that Rule 16 prohibits the release of investigative files in the hands of investigating agencies during the pendency of the criminal cases and any collateral challenges to criminal convictions, should be extended to include public records made and kept by non-investigating or prosecuting state agencies, which are made and kept by those state agencies in the ordinary course of business,” the brief says.

“The State argued that if a public record is exempt in one public body’s hands, it is exempt in all public bodies’ hands. This argument is inconsistent with the language of Rule 16(a)(2), which requires that documents to be withheld must be ‘made … in connection with investigating or prosecuting the case.’ “

Rule 16(a)(2) is part of the Rules of Criminal Procedure created by the Tennessee Supreme Court and deals with what evidence that prosecutors have to give defense attorneys.

“The public records here were not made by TBI or the Department in connection with investigating or prosecuting a criminal case. They were made in the ordinary course of the public agencies’ business. Transfer of copies of these administrative public records to other state entities who are investigating an allegation of wrongdoing should not transform them into ones exempt under Rule 16 in the original custodian’s hands.”

McAdoo pointed out that Williams made the request to the Department of Mental Health and Substance Abuse Services and to the Tennessee Bureau of Investigation (noting that the TBI records were administrative records, including travel records, unrelated to an investigation.) This differs from the Tennessean case in which the request was made to the Nashville Police Department.

He gave some examples of how such a construction of the law would have an absurd result:

What if: a high level official in the Department of Education who dealt with school district budgets is accused of embezzlement that implicates money budgeted by the department to school districts throughout Tennessee; and, as part of its investigation, the TBI copies the hard drive from his computer? Under the State’s argument, everything on the seized hard drive would be exempt because it was gathered as part of the investigation.

The hard drive would likely include a massive amount of information, from operational and administrative documents, to emails and electronic calendars, most of it unrelated to the investigation. Most of the documents would be public record in the Department of Education’s hands. If the public official had the school district budgets for every school district in Tennessee on his hard drive, would these budgets then be exempt from public disclosure in the hands of the school districts themselves? Under the State’s argument below, they would be. This is an absurd result, which the courts should avoid.

And what if the TBI asserted its ‘forever’ exemption, Tenn. Code § 10-7-504(a)(1)(B)? Would the contents of the hard drive be exempt under that provision, even in the hands of school districts throughout Tennessee forever? Under the State’s argument, it seems likely. The State’s advocated rule sweeps up too much information and reads Rule 16’s language much too broadly.”

McAdoo also argues that the state’s citation of another case, Appman v. Worthington, is not factually analogous. That case involved an inmate’s lawyer seeking records from the the state’s corrections department in its investigation into a prison murder.

“The State argued that the public records request in that case was not made to the prosecutor, but instead to the custodian of the records, the Department of Corrections…. But this argument is factually flawed. In Appman, the custodian of the records investigated the alleged crime, and the requested public records were unquestionably made in connection with the investigation.”

Finally, McAdoo countered the state’s assertion that releasing the travel records would harm the fair trial rights of the potential criminal defendants.

“In the trial court, the State argued as a matter of public policy that ‘[t]he Sixth Amendment right of a fair trial is paramount in this instance over the public’s right to know.’ In its argument, however, the State failed to recognize the fact that criminal defendants regularly receive fair trials consistent with the Sixth Amendment even when there is a great deal of pretrial publicity about the accused and their alleged crimes available to the public.”

“…Courts regularly conduct high profile criminal trials in which ignificant amounts of information is public without violating the fair trial rights of the accused. One reason is that ‘[j]urors are not that fragile.’ In re Murhpy-Brown, LLC 907 F.3d 788,798 (4th Cir. 2018) Generally, factual information, like that sought here does not threaten a defendant’s fair trial rights…

“As the U.S. Supreme Court has explained, ‘the decided cases ‘cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged along presumptively deprives the defendants of due process.”

“…The right to a fair trial is a serious matter, but the State’s attempt to raise its specter here ignores the state of the law today. The requested public records, which are comprised of administrative records related to two employees and two different state agencies, do not raise Sixth Amendment fair trial rights concerns. Such a policy argument is a red herring and should be treated as such by this Court.”

One thought on “TCOG, Associated Press, Gannett, Sinclair, others file amicus brief in “investigative records” case

  1. Shirley Nanney

    They should be kept open because they could prove valuable in investigations where information could possibly be hidden.


What do you think?