The Tennessean and a coalition of others have asked the Court of Appeals to affirm a recent trial court’s ruling that found no “blanket” exemption to the Tennessee Public Records Act for crime records during a pending criminal case.
The open records lawsuit against Metropolitan Government of Nashville and Davidson County started with a public records request by The Tennessean that included text messages received or sent by third party sources in the Vanderbilt rape case. Metro Government denied those records, citing Tennessee Rule of Criminal Procedure 16(a)(2), which bars discovery of certain law enforcement material during an active criminal prosecution.
The Tennessean was joined in the petition by 10 other media and other entities, including the Tennessee Coalition for Open Government, the Associated Press, Chattanooga Times Free Press, Knoxville News Sentinel, Tennessee Associated Press Broadcasters, WZTV Fox 17, WBIR-TV Channel Ten, WTVF-TV Channel Five, The Commercial Appeal and WSMV-TV Channel Four.
Robb Harvey, attorney with Waller Law
Robb Harvey, attorney for the coalition, argued that Tennessee Rule of Criminal Procedure 16(a)(2) did not apply to all records of law enforcement during an investigation or prosecution, quoting from the rule itself that it covers “reports, memoranda or other internal state documents made by the district attorney general or other state agents or law enforcement officers…”
Chancellor Russell Perkins in an order filed March 12 said that “exempting all the records from review under Tenn. R. Crim. P. 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 Tenn. R. Crim. P. 16(a)(2). The Court concludes that records submitted to the Metropolitan Police Department that were not developed internally and that do not constitute statements or other documents reflecting the reconstructive and investigative efforts of the Metropolitan Police Department are outside the expansive reach of Tenn. R. Crim. P. 16(a)(2).”
“… These test messages existed contemporaneously or close in time to when the alleged assault occurred and do not reflect the mental impressions or investigative tactics of the Metropolitan Police Department.”
In his ruling, Perkins wrote of the importance of the Tennessee Public Records Act, noting former U.S. Supreme Court Justice Louis Brandeis famous quote: “Sunlight is said to be the best of disinfectants…” and said, “It is this time-honored principle of transparency and openness in government that undergirds Tennessee’s Public Records Act.”
But the judge also stayed his order, preventing release of the records until an appeal.
Perkins also deferred to the criminal court issues about the defendants’ rights to a fair trial and the alleged victim’s rights to “privacy and dignity” under the Victims’ Bill of Rights.
Harvey, in his brief filed Monday, argued that fair trial interests and victim’s rights do not constitute exemptions to the Tennessee Public Records Act. He also argued that no government party had demonstrated it had standing to raise the concerns of a criminal defendant’s right to a fair trial, and the criminal defendants themselves have not argued fair trial issues.
Click on these links to read the various court files in the case:
The Tennessean, et al., brief submitted to Court of Appeals on March 8, 2014
Chancellor Perkins March 12, 2014 ruling
Metro Government’s response, Feb. 25, 2014
Victim’s response in opposition to request for records, Feb. 24, 2014
District Attorney General’s response in opposition to request for records, Feb. 25, 2014
Tennessean original complaint, petition for public records access, Feb. 5, 2014
Written by Deborah Fisher, executive director of Tennessee Coalition for Open Government. Note: TCOG is part of the coalition bringing the open records petition and Robb Harvey is a member of TCOG’s board of directors.
