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Front Page - Friday, August 23, 2019

Court reins in state's use of investigative exemption

The Tennessee Court of Appeals in a ruling on Friday put much-needed limits around the so-called investigative exemption that has been used by the state to cloak otherwise public records.

“We hold that public records created in the ordinary course of business, which are non-investigative in nature, and which are otherwise accessible by Tennessee citizens under the TPRA (Tennessee Public Records Act), do not subsequently become exempt from disclosure because of the initiation of a criminal investigation in which those records become relevant,” the Court ruled in Scripps Media, Inc. v. Tennessee Department of Mental Health and Substance Abuse Services.

The case arose after Nashville’s NewsChannel 5’s chief investigative reporter Phil Williams made a series of public records requests in June 2018 to the Tennessee Department of Mental Health and Substance Abuse Services and the Tennessee Bureau of Investigation.

Williams had received a tip from the acting TBI director’s wife about an affair her husband was having with a deputy commissioner of TDMHSA and possible travel together on the state dime.

Williams, beginning on June 15, asked for travel reimbursement records, per diem requests, phone logs, electronic calendars, resignation documents, credit card transaction summaries to investigate the matter.

Deputy Attorney General Janet Kleinfelter denied access to the otherwise public records, citing an ongoing criminal investigation in which those records had become relevant — the so-called investigative exemption.

The wife had also contacted Governor Bill Haslam on the same day she contacted Williams, and Haslam had asked the Tennessee Department of Safety and Homeland Security to investigate with assistance from the Comptroller’s Office. The Davidson County District Attorney also joined the investigation, looking into whether there was a misuse of state funds.

After Williams was denied access to the records, he filed a petition in Davidson County Chancery Court. Chancellor Anne Martin found in favor of the state, citing Tennessean v. Metro Gov’t of Nashville (2016). A Tennessean news reporter had asked for the contents of a police investigative file and the court found that under the Rules of Criminal Procedure, only the defendants could have access to the investigative file through the discovery process.

In the Scripps case, however, Williams, had not asked for the District Attorney’s investigative file. He requested ordinary public records from two state agencies.

The court said:

“Here, Mr. Williams did not need to and did not probe into an investigative file at all. The records he requested were created and kept by their respective State agencies in non-investigative files. It was the State that went out of its way to cloak records that otherwise were accessible.

“Under the State’s position, even public records accessible via the TPRA for years prior may abruptly become exempt from disclosure, an astonishing proposition. Presumably, the State would hope that no Tennessee citizen had bothered to investigate the records before it became interested in them lest they possibly be disseminated. That appears to be the State’s logic, in any case. The State argues that public records created in the routine course of business stop being accessible when they become relevant to a criminal investigation and can then be withheld until the investigation ends, or perhaps beyond.

“That is not the holding of Tennessean. The State’s position goes well beyond Tennessean, wherein our Supreme Court sought to protect the contents of an active investigative file from disclosure under the TPRA regardless of the source of the material. If routinely made public records become relevant to a criminal investigation, then that is incidental to their original purpose.

“Prosecutors may use already publicly available information as part of their case but that information does not cease to be public. The records at issue could have been accessed by Tennessee citizens all along, and should have been disclosed by the State at the outset upon request.

“We hold that public records created in the ordinary course of business, which are non-investigative in nature, and which are otherwise accessible by Tennessee citizens under the TPRA, do not subsequently become exempt from disclosure because of the initiation of a criminal investigation in which those records become relevant. We reverse the judgment of the Trial Court as to this issue.”

Judge D. Michael Swiney delivered the opinion for the court. He was joined by Judge Frank Clement Jr. and Richard H. Dinkins.

Ronald G. Harris of Neal & Harwell represented Scripps Media and Phil Williams in the public records case. Ronald G. Harris of Neal & Harwell represented Scripps Media and Williams. Paul R. McAdoo, then with Aaron | Sanders PLLC and now with Adams & Reese, filed an amici curiae for several news organizations and Tennessee Coalition for Open Government.

It was good to see both Dinkins and Clement joining to put limits around the investigative exemption. Dinkins had authored, with Clement joining, the Court of Appeals ruling in 2014 in the Tennessean case that was later upheld by the Supreme Court.

The decision should go a long way in restoring access to public records that have been put off limits by state agencies, district attorneys and law enforcement through the state since the 2016 ruling in Tennessean.

For example, many in Tennessee might remember the devastating November 2016 Gatlinburg fires. After the fires, which killed 14 people and caused millions in damages, many journalists and residents began to ask for public records that would document the local and state response to the emergency, including records that documented the actions of the Tennessee Emergency Management Agency.

State and local government entities declined all requests for any documents related to the fire based on a letter from Sevier County District Attorney Jimmy Dunn which stated the records might be relevant to his arson investigation.

“[A]ll state and local agencies involved in the response to and investigation of this fire and the resulting devastation are unable to respond to these requests at this time,” Dunn wrote.

It took eight months before the state began releasing public records related to the response to the fires, partially jarred by revelations in the juvenile court case in which the judge had early on ordered information gathered in the arson case to remain confidential except records that were public records.

The Court of Appeals ruling on Friday should help restore access to “non-investigative public records made in the ordinary course of business” by government.

As the court noted, the arguments by the state were, indeed, an “astonishing proposition.”

Deborah Fisher is executive director of Tennessee Coalition for Open Government. TCOG was part of an amici curiae filed in the case, along with the Associated Press, Gannett Co., Inc., Gatehouse Media, LLC, Gray Television Group, Inc., Sinclair Broadcast Group, Inc., and Tribune Media Company.

Note: A grand jury found that no crime was committed during the affair between the two state officials, but a Comptroller’s report found that several violations of state policy had occurred.