Law Enforcement Investigative Files Are Not Public Records, Holds Tennessee Supreme Court

By Daniel Horwitz:

[Disclosure:  The author filed an amicus curiae brief in support of the victim in this case on behalf of four organizations committed to preventing domestic and sexual violence.  The author’s brief is accessible here.]

In one of the most eagerly anticipated and hotly contested decisions in recent memory, the Tennessee Supreme Court has ruled 4-1 that the Nashville Police Department’s investigative records concerning the Vanderbilt rape case are not subject to disclosure under the Tennessee Public Records Act.  The Court’s ruling comes approximately ten months after the case’s closely-watched oral argument, which pitted a vast media coalition headlined by The Tennessean against Metro government, the Tennessee Attorney General’s Office, and the alleged victim in the case, who intervened to protect her privacy under the pseudonym “Jane Doe.”

The lawsuit arose out of a public records request filed by The Tennessean in October of 2013, which sought access to records involving an alleged rape at Vanderbilt University that resulted in the arrest of four Vanderbilt football players.  Among other information, The Tennessean’s public records request sought text messages and videos that had been sent or created by third-party sources, such as then- Vanderbilt football coach James Franklin.

On October 23, 2013, Metro denied The Tennessean’s public records request.  Specifically, Metro contended that the requested records were part of an open criminal investigation and were thus exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(2), which prohibits “discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”  After The Tennessean filed suit in Davidson County Chancery Court seeking access to the requested records, the victim in the case intervened, arguing that her own private records – including a video recording of the alleged rape and her private text messages – were exempt from public disclosure under Tennessee’s victims’ rights laws.  After a full hearing, the trial court ruled that some, but not all, of the requested records were public.

Ultimately, the case reached the Tennessee Supreme Court.  Upon review, four of the Court’s five justices held that the police department’s entire investigative file was exempt from public disclosure under Tennessee Rule of Criminal Procedure 16(a)(1) and 16(b)(1).  The court also clarified that victims need not take any action to protect certain records from public disclosure following a defendant’s conviction.  At least for the time being, however, the full scope of victims’ privacy rights under Tennessee’s victims’ rights provisions remains unclear.

The Tennessee Public Records Act

As a general matter, all governmental records are considered public records under the Tennessee Public Records Act unless they are specifically exempted from disclosure.[1]  When the Tennessee Public Records Act was first adopted in 1957, it only provided for two such exemptions—medical records of patients in state hospitals, and military records involving national and state security.[2]  In the half-century since, however, the Tennessee legislature has systematically added more than forty additional statutory exemptions to the Tennessee Public Records Act.  For example, included among the Act’s restrictions is an exemption that prohibits public disclosure of student educational records and an exemption that blocks public disclosure of inmate emergency transfer plans.[3]

Additionally, the Tennessee Public Records Act has since been amended to include a “catch-all” provision that further restricts disclosure of records that are not specifically exempted by statute.  This provision establishes that requested records are not public if there is any other exemption to disclosure that is “otherwise provided by state law.”[4]  Notably, for purposes of this “catch-all” provision, “state law” has been interpreted to include other statutes, the Tennessee Constitution, Tennessee common law, rules of court, and administrative rules and regulations.[5]

Tennessee Rule of Criminal Procedure 16

The Court’s four-justice majority ruled that the records requested by The Tennessean were barred from disclosure under Tennessee Rule of Criminal Procedure 16.  Rule 16 governs the exchange of information between prosecutors and defense counsel in criminal cases.  Specifically, 16(a)(1) provides that upon request, “the state shall disclose” certain records “to the defendant.”  (16)(b)(1) further clarifies which records are “subject to disclosure,” specifying, for example, that “documents and tangible objects” and “reports of examinations and tests” must be disclosed to the defendant upon request.  Additionally, Rule 16(a)(2) specifies that certain records are not subject to disclosure.  Records that are not subject to disclosure under Rule 16(a)(2) – which embodies what is commonly recognized as a “work-product exemption” – include “documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case.”

Unlike the Tennessee Public Records Act, however, Rule 16 only governs the exchange of information between the government and a criminal defendant.  As a consequence, the majority ruled that “Rule 16 is the more specific provision and controls the discovery and disclosure of materials in a criminal case to the exclusion of the Public Records Act.”[6]  “Because Rule 16 does not provide for disclosure to a third party of materials subject to discovery between the State and a defendant,” the Court’s majority held, the public “cannot gain access to these materials under the Public Records Act.”[7]

The majority also contended that a contrary conclusion would produce absurd results.  Specifically, the court argued:  “If Rule 16 did not function as an exception to the Act, a defendant would have no reason to seek discovery under Rule 16, but would file a public records request and obtain the entire police investigative file, which could include more information than the defendant could obtain under Rule 16. . . .  This absurd result was not intended by the Legislature and would have a negative impact on [both] a police department’s ability to investigate criminal activity and a defendant’s ability to obtain a fair trial.”[8]

In dissent, Justice Gary Wade argued that Rule 16 does not provide such a blanket exemption for law enforcement records under the Tennessee Public Records Act.  Specifically, he noted, Rule 16 “is silent as to the dissemination of discovery information to the public,” and “silence in a rule is not affirmative law and is ordinarily irrelevant to the interpretation of the rule.”[9]  Further, he observed, as Justice Stewart once wrote in an opinion for the U.S. Supreme Court:   “In ascertaining the meaning of a [rule], a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.”[10]

Addressing the majority’s distinction between records available to a defendant and records available to the public under Rule 16, Justice Wade also argued that “the majority’s conclusion rests upon . . . a failure to accord proper weight to the public nature of criminal proceedings.”[11]  Citing both the U.S. Constitution and the Tennessee Constitution for the proposition that in all criminal prosecutions, a defendant enjoys a constitutional right to a public trial,[12] he contended that such a distinction was unwarranted.  Accordingly, Justice Wade concluded, “Rule 16 does not prohibit public access to discoverable materials,”[13] and only the explicit restriction contained in Rule 16 – the work-product exemption – should govern.  As a result, Justice Wade held that third-party records that were received by law enforcement should be subject to disclosure under the Tennessee Public Records Act unless the records are exempt from disclosure under Tennessee law’s separate victims’ rights provisions.

Victims’ Rights

Because the majority’s opinion broadly concluded that Tennessee Rule of Criminal Procedure 16 exempts all police records from public disclosure during the course of a criminal prosecution, the majority did not directly address whether some of the requested records would also have been protected from disclosure under Tennessee’s victims’ rights laws.  This separate argument, however – which represented the position advocated by both the victim and the author on behalf of several domestic and sexual violence prevention advocates – was directly adopted by Justice Wade in dissent.  He wrote:

“Both article I, section 35 and section 40-38-102(a)(1), which are designed to insure protections to victims, qualify as ‘state law’ for purposes of the catch-all exception to disclosure under the TPRA.  Exceptions must be recognized pursuant to the catch-all provision when, as here, there is a significant risk that the disclosure of documents will contravene rights guaranteed by provisions in the Tennessee Code and the Tennessee Constitution.

. . . .

[Victims’ records] qualify for protection under the victims’ rights provisions—which . . . apply both during and after the prosecution.”

In this regard, Justice Wade’s opinion mirrors the separate opinion issued by Judge Neal McBrayer in the Tennessee Court of Appeals, who had similarly held that “victim’s rights under Article 1, § 35 of the Tennessee Constitution and Tennessee Code Annotated sections 40-38-101 through 506. . . . constitute ‘state law’ exceptions to the Public Records Act.”[14]  At present, however, whether the four justices representing the Court’s majority will embrace this view in a future case remains unclear.  Given that the only two jurists who have squarely addressed this claim have both ruled that Tennessee’s victims’ rights provisions protect certain private information about victims from public disclosure, though, and given that the majority’s opinion makes multiple overtures to the legislature’s “wise[]” decision to enact exemptions protecting victims’ private records from disclosure,[15] there is strong reason to believe they would.

Read the Tennessee Supreme Court’s majority opinion in Tennessean v. Metro. Gov’t of Nashville here, Justice Wade’s dissent here , and Justice Kirby’s concurrence here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] See, e.g., Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that Tenn.Code Ann. § 10–7–505(d) “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records.”).

[2] Act of Mar. 18, 1957, ch. 285, 1957 Tenn. Pub. Acts 932.  See also Swift v. Campbell, 159 S.W.3d 565, 571 (Tenn. Ct. App. 2004) (“As originally enacted, the public records statutes excepted only two classes of records from disclosure. These records included the medical records of patients in state hospitals and military records involving the security of the United States or the State of Tennessee.”).

[3] See Tenn. Code Ann. § 10-7-504(a)-(s).

[4] Tenn. Code Ann. § 10-7-503(2)(A) (2012).

[5] See Swift, 159 S.W.3d at 571-72 (“the General Assembly [] amended Tenn.Code Ann. § 10–7–503(a) by replacing the phrase ‘state statute’ with ‘state law.’ The change is significant for two reasons. First, it signaled a return to the General Assembly’s original understanding that statutes were not the sole source of exceptions from the public records statutes’ disclosure requirements. Second, it broadened the permissible sources of exceptions from disclosure to include not only statutes, but also the Constitution of Tennessee, the common law, the rules of court, and administrative rules and regulations because each of these has the force and effect of law in Tennessee.”) (citing Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 148 (Tenn.1993) (Constitution of Tennessee); Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 713 (Tenn.2002) (rules of court); Emery v. Southern Ry., 866 S.W.2d 557, 561 (Tenn.Ct.App.1993) (the common law); Kogan v. Tennessee Bd. of Dentistry, No. M2003–00291–COA–R3–CV, 2003 WL 23093863, at *5–6 (Tenn.Ct.App. Dec. 30, 2003) (No Tenn. R.App. P. 11 application filed) (administrative rules and regulations)).

[6] Tennessean v. Metro. Gov’t of Nashville, No. M201400524SCR11CV, 2016 WL 1084422, at *11 (Tenn. Mar. 17, 2016).

[7] Id.

[8] Id. at *10.

[9] Id. at *18 (Wade, J., dissenting) (citing State v. Collier, 411 S.W.3d 886, 897 (Tenn. 2013)).

[10] Id. (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980)).

[11] Id.

[12] U.S. Const. amend. VI; Tenn. Const. art. I, § 9.

[13] Tennessean, 2014 WL 4923162, at *19 (dissenting opinion),

[14] Tennessean v. Metro. Gov’t of Nashville, No. M2014–00524–COA–R3–CV, 2014 WL 4923162, at *6 (Tenn. Ct. App. Sept. 30, 2014) (McBrayer, J., dissenting).

[15] Tennessean, 2016 WL 1084422, at *12.Tennessean, 2016 WL 1084422, at *12.