The Tennessee Supreme Court has granted the application of The Tennessean and other media organizations to appeal a Court of Appeals decision regarding what police records are exempt from the Tennessee Public Records Act.

In a Sept. 30 ruling, the Court of Appeals said that Criminal Court Rule 16(a)(2) acts as an exemption to allow police to withhold records relevant to an ongoing investigation. The opinion was written by Judge Richard Dinkins and joined by Judge Frank G. Clement Jr. and reversed a trial court ruling that police must release some records.

A dissent was written by Judge Neal McBrayer, who said that the criminal court rule exempted some records, but did not exempt the records sought by the media in the case.

The coalition sought the appeal in part to settle questions of law surrounding access to police records.

While several Tennessee cases address the interplay between the Public Records Act and Rule 16(a)(2), none answer the precise question raised here: does Rule 16(a)(2) (contrary to its language) somehow create a blanket exemption to the Public Records Act for records not “made by” the District Attorney general, law enforcement or other state agent (or constituting “witness statements”) and that must be produced to defense counsel? In this case, the requested materials have been provided to the defendants in the criminal case and thus fall outside the rule’s scope. Nonetheless, the Government Parties assert Rule 16(a)(2) as a blanket bar to disclosure. The dissent point out this incongruity: “In this case [Metro] conceded in both its brief and in oral argument that the material sought by the Petitioners had been provided to the criminal defendants, placing the materials outside the scope of materials described in Rule 16(a)(2).”

The case began when The Tennessean requested certain records from the Metro Nashville police department who were investigating an alleged rape of a student in a Vanderbilt University dorm room in which football players were accused.

Police denied access to the records, citing Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure, which governs what prosecutors must give to defense, and what they can withhold, as part of a trial. In this case, the trial court judge determined some of the records did not fall under the 16(a)(2) exemption.

Several media outlets joined the Tennessean in the original lawsuit — the Associated Press, Knoxville News-Sentinel, The Commercial Appeal, Chattanooga Times Free Press, WTVF Channel 5, WSMV-TV Channel 4, WZTV Fox 17 Nashville, Tennessee Associated Press Broadcasters, WBIR-TV Channel 10. The Tennessee Coalition for Open Government also joined.

The case is important because it centers on just how much information regarding crimes that police and sheriff’s departments are allowed to keep confidential.

Robb Harvey and Lauran Sturm with Waller Lansden Dortch & Davis LLP are representing the media group.

Previous blog posts:

Court of Appeals considers access to crime records

Dinkins opinion in public records case expands police secrecy powers

Request to appeal Vanderbilt records case aims to settle what police can withhold from public