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Letter to the Editor: Court of Appeals reins in state’s expansive use of investigative exemption

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Deborah Fisher

The Tennessee Court of Appeals in a recent ruling 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 noninvestigative 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 Phil Williams, WTVF-Channel 5’s chief investigative reporter, 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 and 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 Gov. 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). In that case, a 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 appeals 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 noninvestigative 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 (the) Tennessean (case). The state’s position goes well beyond (the) Tennessean (case), 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 noninvestigative 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.” 

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

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

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

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