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Tennessee appeals court delivers major public-records victory

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Posted at 4:14 PM, Aug 17, 2019
and last updated 2019-08-19 08:57:19-04

NASHVILLE, Tenn. (WTVF) — The Tennessee Court of Appeals delivered a major public-records victory, ruling Friday in a case brought by NewsChannel 5 that public records do not cease to be public just because they might be relevant to a criminal investigation.

Open-records advocate Deborah Fisher, whose organization filed a brief in support of NewsChannel 5's appeal, applauded the ruling.

"We are very gratified by the court’s decision," said Fisher, executive director of the Tennessee Coalition for Open Government.

"You shouldn’t be able to transform ordinary public records, like a state agency’s travel expenses, into confidential records just because police or the district attorney deems them possibly relevant to a criminal investigation. That would be granting an enormous power to close all kinds of public records and undermine the public records act."

The case stems from a NewsChannel 5 investigation in June 2018 into allegations raised by the wife of then-Acting TBI Director Jason Locke that he had been involved in an affair with another state official using state resources.

On the same day that the wife contacted NewsChannel 5 Investigates, she also reached out to then-Gov. Bill Haslam. The governor forwarded the allegations to the Department of Safety and Homeland Security for investigation.

NewsChannel 5 filed a public records request for travel reimbursements, credit card receipts, phone records, electronic calendars and other records for Locke and the state official with whom he had the affair.

But deputy attorney general Janet Kleinfelter refused to hand over the documents, saying they were relevant to the criminal investigation and, as a result, were no longer public. She pointed to a Tennessee Supreme Court case that protects the "investigative files" of law enforcement.

Weeks later, after NewsChannel 5 filed suit and after Nashville DA Glenn Funk cleared Locke, the state finally released the records.

But NewsChannel 5 asked the court to resolve the issue of whether the state's argument would be a justifiable reason for withholding public records in the future.

Davidson County Chancellor Anne C. Martin sided with the state.

However, the Court of Appeals, in an opinion written by Chief Judge D. Michael Swiney, ruled that the records should have been released.

"It was the State that went out of its way to cloak records that otherwise were accessible," Swiney wrote.

The chief judge noted that "there is a major difference between public records created in the ordinary course of business and materials found in an investigative file."

Swiney noted that the records were created by the Tennessee Bureau of Investigation and the Tennessee Department of Mental Health and Substance Abuse Services "in the ordinary course of business."

"That they later were relevant to a criminal investigation did not alter either their nature or where they are kept," he wrote.

"Under the State's position, even public records accessible via the [Tennessee Public Records Act] for years prior may abruptly become exempt from disclosure."

Swiney called that "an astonishing proposition."

Still, the Court of Appeal rejected NewsChannel 5's motion for attorney fees based on the state's "willful" failure to comply with the records law.

"A reasonable mind could interpret from the leading cases a kind of blanket exemption for public records relevant to criminal investigations," Swiney wrote.

"The State had a tenable, if, in the end, erroneous, basis for acting as it did."

State attorneys could appeal the case to the Tennessee Supreme Court.

Read opinion here.

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