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The Tennessean v. Metropolitan Government of Nashville and Davidson County

Court of Appeals of Tennessee, Nashville

September 30, 2014

THE TENNESSEAN, ET AL.
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Session Date June 09, 2014

Appeal from the Chancery Court for Davidson County No. 14156IV Russell T. Perkins, Chancellor

Robb S. Harvey and Lauran M. Sturm, Nashville, Tennessee, for the appellants, The Tennessean, Associated Press, Chattanooga Times Free Press, Knoxville News Sentinel, Tennessean Coalition for Open Government, Inc., Tennessee Associated Press Broadcasters, WZTV Fox 17, WBIR-TV Channel Ten, WTVF-TV Channel Five, The Commercial Appeal, and WSMV-TV Channel Four.

Saul Solomon, Director of Law; James L. Charles, Associate Director, Lora Barkenbus Fox, Emily Herring Lamb, R. Alex Dickerson, Jennifer Cavanaugh, Assistant Metropolitan Attorneys, Nashville, Tennessee, for the appellee, The Department of Law of the Metropolitan Government of Nashville and Davidson County.

Edward Yarbrough and J. Alex Little, Nashville, Tennessee, for the intervenor, Jane Doe.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Janet M. Kleinfelter, Deputy Attorney General, for the intervenors-appellees, District Attorney General, Victor S. Johnson, III, and the State of Tennessee.

Douglas R. Pierce, Nashville, Tennessee, for the Amicus Curiae, Tennessee Association of Broadcasters.

Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P. J., M. S., joined.

OPINION

RICHARD H. DINKINS, JUDGE

I. Factual & Procedural History

On August 9, 2013, four former members of the Vanderbilt University football team were indicted on five counts of aggravated rape and two counts of aggravated sexual battery of a student at an on-campus dormitory. On October 13, a reporter for the Tennessean newspaper made a request of the Metropolitan Police Department under the Tennessee Public Records Act ("TPRA"), Tenn. Code Ann. § 10-7-503 et seq., for "any records (as that term is broadly defined in the Act) regarding the alleged rape on the Vanderbilt campus and in which Vandenburg, Banks, Batey and McKenzie are charged" and "any records regarding the case recently concluded against Boyd by his plea bargain."[1] The request was denied and, after unsuccessfully seeking recourse through the Metropolitan Director of Law and Mayor, on February 4, 2014, the Tennessean and various other media outlets ("Petitioners") filed a Complaint and Petition for Access to Public Records in Davidson County Chancery Court naming the Metropolitan Government of Nashville and Davidson County as Respondent; the State and District Attorneys General were permitted to intervene, as was the victim (Ms. Doe).[2]

The court held a show cause hearing in accordance with the TPRA and conducted an in camera inspection of the records in question[3]; in a Memorandum and Final Order entered March 12, the court ordered that Petitioners be granted access to (1) text messages and emails the police department received from third parties in the course of its investigation; (2) Vanderbilt access card information; (3) reports and emails provided to the Metropolitan police department by Vanderbilt; (4) pano scan data of the Vanderbilt premises.

The parties each raise issues on appeal.

II. DISCUSSION

The TPRA provides that:

All state, county and municipal records[4] shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.

Tenn. Code Ann. § 10-7-503(a)(2)(A). The parties have raised a plethora of issues relative to the interpretation and application of this statute, specifically the "unless otherwise provided by state law" provision. We have determined that a common thread in these issues, which we must first address, is the extent to which the records sought are exempt from disclosure given the present posture of the criminal proceeding. This is a question of law which we review de novo, with no presumption of correctness of the trial court's decision. See Memphis Publishing Co. v. Cherokee Children and Family Svcs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002).

The Metropolitan Government as well as the State and District Attorneys General assert that the records are exempt pursuant to Rule 16 of the Tennessee Rules of Criminal Procedure, which governs discovery and inspection of information in a criminal proceeding. Section (a)(1) of the rule sets forth specific information which must be disclosed by the State; of pertinence to the issues we address, section (a)(2) provides as follows:

Except as otherwise provided in paragraphs (A), (B), (E), and (G) of subsection (a)(1)[5], this rule does not authorize the 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. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.

Tenn. R. Crim. P. 16(a)(2). Our review of cases which have considered the interaction between Tenn. R. Crim. P. 16 and the TPRA leads us to conclude that, in light of the pending investigation and prosecution arising out of the events for which the records were complied, access under the TPRA is not required at this time.

The question of whether records maintained by a state correctional facility in the course of its investigation into the murder of an inmate were available for inspection under the TPRA was before the court in Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1987). In that case, attorneys representing the defendants who had been indicted for the inmate's murder subpoenaed records of the facility's investigation from the appropriate prison official; the request was refused and counsel filed a petition seeking judicial review pursuant to the TPRA. Id. at 166. The trial court held that the records were exempt from inspection pursuant to Tenn. R. Crim. P. 16; the Court of Appeals reversed, holding that Rule 16 only applied to the rights and duties of the parties to the criminal prosecution and not the rights of access of citizens to public records as provided by the TPRA. Id. On further appeal, our Supreme Court reversed the Court of Appeals' decision, holding:

Rule 16 provides for the disclosure and inspection of categories of evidence in the possession of the state or in the possession of the defendant. However, the disclosure and inspection granted by the rule "does not authorize the discovery and inspection of reports, memoranda, or other internal state documents made by . . . state agents or law enforcement officers in connection with the investigation or prosecution of the case, . . ." Rule 16(a)(2) of the Rules of Criminal Procedure. This exception to disclosure and inspection does not apply to investigative files in possession of state agents or law enforcement officers, where the files have been closed and are not relevant to any pending or contemplated criminal action, but does apply where the files are open and are relevant to pending or contemplated criminal action.

Appman, 746 S.W.2d at 166. The Supreme Court then noted that the materials sought were the result of the investigation into a murder for which several individuals were indicted for the murder and another was indicted as an accessory after the fact. Id. at 166–67. The court also stated that the materials were relevant to the prosecution of the persons charged with the offenses arising out of the murder and that the prosecutions had not been terminated. Id. at 167. Applying the Rule 16(a)(2) exception to the disclosure and inspection of categories of evidence where the files are open and relevant to pending or contemplated criminal action, which was the case in Appman, the court held that the materials were not subject to inspection under the Public Records Act. Id.

In Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007), members of the media filed a petition under the TPRA seeking access to, inter alia, cards memorializing field interviews conducted by City of Jackson police officers. The request had been denied on the basis of an asserted common law law enforcement privilege; the Supreme Court held that such privilege had not been adopted in Tennessee and, therefore, was not a "state law" exception to the TPRA. Id. at 338, 342. The court also considered whether the cards were exempt from disclosure under Tenn. R. Crim. P. 16. Id. at 344. The court noted that the cards "would clearly have been exempt from disclosure under Rule 16(a)(2) and this Court's decision in Appman" and remanded the case to allow the City to submit to the court for in camera review the cards or portions of cards which the City maintained were involved in a pending criminal investigation.[6] Id. at 345-46.[7]

In response to the show cause order, Metro submitted, inter alia, the affidavit of Steve Anderson, Chief of Police, which stated in pertinent part:

6. MNPD officers have been investigating and gathering information relating to crimes that allegedly occurred on the Vanderbilt University campus around June 23, 2013, and the following days thereafter, for the purposes of prosecuting the perpetrators of the crimes.
7. The MNPD investigation into the matter is still an active, ongoing and open matter. The investigation is not complete. Investigators are still working to gather and analyze evidence in the case.
8. Much of the information that the MNPD has gathered in this investigation has been through subpoenas and search warrants - from defendants, potential witnesses, Vanderbilt University, Vanderbilt Police, Vanderbilt University Medical Center, and cell phone providers.
9. The grand jury has indicted four individuals in this case, on five counts of aggravated rape and aggravated sexual battery. One of the individuals is also charged with tampering with evidence and one count of unlawful photography (T. C. A. § 39-13-605). The trial for two of the individuals is scheduled for August 11, 2014.
12. The MNPD's investigative file is the product of the education and investigative experience utilized by law enforcement officers to gather relevant documents and items related to this crime. MNPD considers the creation of this kind of file to be an internal report created in preparation for the prosecution of a case by the District Attorney's office. MNPD routinely consults with the District Attorney's office during the course of an investigation about its course and the evidence gathered to date.

In like fashion the State submitted the affidavit of District Attorney General Johnson, stating in pertinent part:

2. In late June 2013, the Metropolitan Nashville Police Department (MNPD) began investigating and gathering information relating to crimes that allegedly occurred on the Vanderbilt University campus for the purpose of prosecuting the perpetrators of the alleged crimes. Shortly thereafter, MNPD contacted my office for advice and assistance with their investigation.
3. In August, 2013, MNPD presented this case to the Grand Jury and the Grand Jury returned an indictment against four individuals charging each with five counts of aggravated rape and two counts of aggravated sexual battery. Additionally, one of the four individuals was charged with one count of unlawful photography and one count of tampering with evidence.
4. An arraignment was subsequently held at which time all four individuals pled not guilty. Currently, trial is set for two of the defendants in August; a trial date has not been set for the other two defendants.
5. Before this case was presented to the Grand Jury, MNPD's investigative file was reviewed by attorneys in my office. Once the indictment was issued by the Grand Jury against the four individuals, that investigative file became part of the prosecutorial file that was assigned to Deputy District Attorney Tom Thurman, who is handling this case for my office.
6. MNPD's investigation into this case is still active and ongoing and any additional information that MNPD collects or gathers during their investigation is provided to Deputy District Attorney Thurman and becomes part of his prosecutorial file.

It is apparent from the affidavits that the material that is the subject of the request is "relevant to a pending or contemplated criminal action" and therefore not subject to disclosure. See Appman, 746 S.W.2d at 166. Accordingly, the petition should be dismissed.

The fact that the police investigation and criminal prosecution are ongoing is a significant factor in our disposition of this case; this pretermits our consideration of the other issues raised.

IV. Conclusion

For the foregoing reasons, the judgment of the trial court is reversed and the petition dismissed.

DISSENTING.

W. Neal McBrayer, J.

The Court's decision in this case excepts materials that are "relevant to a pending or contemplated criminal action" from disclosure under the Public Records Act based upon Tennessee Rule of Criminal Procedure 16(a)(2). I find such a conclusion inconsistent with a fair reading of Rule 16(a)(2) and, therefore, respectfully dissent. However, because the trial court should have considered the victim's rights, the criminal defendants' Sixth Amendment rights under the United States Constitution, and the State's interests in a fair trial before determining what materials were subject to public inspection, I would vacate the trial court's ruling and remand for further proceedings.

The Public Records Act has been described as an "all encompassing legislative attempt to cover all printed material created or received by government in its official capacity." Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn. 1991) (quoting Bd. of Educ. of Memphis City Sch. v. Memphis Publ'g Co., 585 S.W.2d 629, 630 (Tenn. Ct. App. 1979)). The Act provides that "[a]ll state, county, and municipal records shall, at all times during business hours . . . be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law." Tenn. Code Ann. § 10-7-503(a)(2)(A) (Supp. 2014). The Legislature has further directed that the Act "be broadly construed so as to give the fullest possible public access to public records." Tenn. Code Ann. § 10-7-505(d) (Supp. 2014). Our Supreme Court has interpreted these provisions to create a legislatively-mandated presumption favoring openness and disclosure of government records. Schneider v. City of Jackson, 226 S.W.3d 332, 340 (Tenn. 2007) (citing State v. Cawood, 134 S.W.3d 159, 165 (Tenn. 2004); Tennessean v. Elec. Power Bd., 979 S.W.2d 297, 305 (Tenn. 1998); Arnold v. City of Chattanooga, 19 S.W.3d 779, 785 (Tenn. Ct. App. 1999)). Absent an applicable exception, this mandate requires disclosure of public records "even in the face of serious countervailing considerations." Id. (quoting Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994)).

The Tennessee Supreme Court has utilized the Tennessee Rules of Criminal Procedure, and Rule 16(a)(2) in particular, as a basis for excepting materials from disclosure under the Public Records Act. Appman v. Worthington, 746 S.W.2d 165, 166 (Tenn. 1987).[1]In Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007), the Supreme Court extended the Rule 16(a)(2) exception to public records requests made by citizens other than criminal defendants or their counsel. 226 S.W.3d at 341. The majority reads Schneider as also extending the Rule 16(a)(2) exception to materials that are "relevant to a pending or contemplated criminal action." In my view, such an extension of the Rule 16(a)(2) exception is not warranted by Schneider.

Although in Schneider the Court granted the City of Jackson an opportunity to review the field interview cards or portions of the cards to determine whether any of the information was "involved in an ongoing criminal investigation, " the Court only directed such a review after finding that the "cards would clearly have been exempt from disclosure under Rule 16(a)(2)" and Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1987). Id. at 345-36. Field interview cards seemingly would fall within the ambit of Rule 16(a)(2) either as a "report, memorandum, or other internal state document made by . . . law enforcement officers" or as including "statements made by state witnesses or prospective state witnesses." See Tenn. R. Crim. P. 16(a)(2). Witnesses described the field interview cards as the police officers' "work product." 226 S.W.3d at 337. As the court of appeals has previously explained, Tennessee Rule of Criminal Procedure 16(a)(2) "embodies the work product doctrine as it applies to criminal cases." Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004).

In this case, the Metropolitan Government of Nashville and Davidson County ("Metro") conceded in both its brief[2] and at oral argument that the materials 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). Certainly, the materials making up Metro's records regarding the alleged rape on the Vanderbilt campus, as described by the trial court, would not all fall within the description of documents found in Rule 16(a)(2). As a result, I conclude, as did the trial court, that the materials sought by Petitioners were not completely excepted from disclosure under the Public Records Act by virtue of Rule 16(a)(2).

Although Tennessee Rule of Criminal Procedure 16(a)(2) does not except from disclosure all of the public records requested by the Petitioners, this determination does not end the inquiry. As the court of appeals has previously noted, by excepting from disclosure public records made confidential "by state law, " statutes, the Constitution of Tennessee, the common law, and administrative rules and regulations all became potential sources of exceptions to the Public Records Act. Swift, 159 S.W.3d at 571-72. Exceptions may be either explicit or implicit. See id. at 572 (the court's role in interpreting and applying the Public Records Act "is to determine whether state law either explicitly or implicitly excepts particular records or a class of records from disclosure . . . ."). The trial court here identified three potential exceptions in addition to Rule 16(a)(2): the agreed protective order entered by the criminal court, the constitutional rights of the accused in a criminal case, and the Victims' Bill of Rights. However, having identified three potential exceptions, the trial court addressed only one, the agreed protective order. The trial court properly concluded that materials covered by the agreed protective order were excepted from disclosure under the Public Records Act. See Ballard v. Herzke, 924 S.W.2d 652, 662 (Tenn. 1996). As for the other two potential exceptions, the trial court deferred to the criminal court.

Having been presented with the question of whether the public records were excepted from disclosure under state law, the trial court should have addressed all potential exceptions brought to its attention by Metro and the victim.[3] Deferring such determinations to the criminal court for consideration at a later date presents the unacceptable potential for public release of materials adversely impacting the victim's rights under Article 1, § 35 of the Tennessee Constitution and Tennessee Code Annotated sections 40-38-101 through 506, the criminal defendants' rights to a fair trial under the Sixth Amendment to the United States Constitution, and Metro's general fair trial interests. I would find that these rights and interests constitute "state law" exceptions to the Public Records Act.

While these exceptions might well lead to the same result reached by the majority in this case, the place for application of these exceptions in the first instance is the trial court. Therefore, I would vacate the trial court's ruling and remand for further proceedings.


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