by Deborah Fisher
In a press conference the day after The Covenant School mass shooting, Nashville police said they were looking into the motive of the shooter, Audrey Hale, and had found a “manifesto” that outlined her attack with maps and action plans for the killings.
Since then, the Nashville police have walked back the characterization of Hale’s writings seized at her home as a manifesto but have given little additional information about them. They say they have shared Hale’s journals and writings with the FBI’s Behavioral Analysis Unit, which is studying them.
Tennessee lawmakers and others are now calling upon the Nashville police to release what they found.
Nashville police have so far refused, saying that the material is part of an ongoing investigation.
Are the records that police seized at Hale’s home “public records” open for public inspection under Tennessee law?
First, yes, they are public records. The Tennessee Public Records Act governs records created by any governmental entity of Tennessee, which includes the police department.
“Public records” means all records, “regardless of physical form or characteristic, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity.”
The records that police gathered at Hale’s home after the shooting fit this description and are public records.
The Tennessee Public Records Act provides that all “state, county and municipal records shall…be open for personal inspection by any citizen of this state” and custodians cannot refuse access “unless otherwise provided by state law.”
This is important: State law, not federal law such as the federal Freedom of Information Act, governs access to public records of Tennessee governmental entities.
No contemplated criminal proceeding, no exemption
So are they open for inspection?
The Tennessee Supreme Court has recognized an exemption to the state’s public records law for police records under Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure. The court has said that as long as there is a pending investigation and prosecution arising out of the events for which the records were gathered, the records may remain confidential.
However, once an investigation is closed — there is no longer a pending or contemplated criminal prosecution — the records are no longer exempt under state law.
In short, the Rules of Criminal Procedure only apply when the district attorney or police are contemplating charging someone or have charged someone with a crime. They don’t apply when they have decided not to charge someone.
Access to such police files is a long tradition in Tennessee and essential to the accountability of law enforcement. I’ve seen law enforcement claim “open investigation” to delay releasing records when indeed they are no longer contemplating criminal charges against anyone, particularly in cases involving a police officer who shot someone. Law enforcement agencies are very aware of the law on this and, when challenged, have relented.
The Tennessee Supreme Court in 1986 affirmed access to such investigative files in a case involving the “Shannon Street Incident” in Memphis. In that case, police had stormed a house in which a police officer was being held hostage and killed all seven occupants. (The hostage officer was also found dead.) Police began investigating the actions of the officers.
When a journalist asked for the files months later, the police department denied access. The news organization went to court and the Tennessee Supreme Court in Memphis Publishing Co. V. Holt said that because no pending investigation or prosecution existed anymore, the files were open under the public records law.
Shooter’s writings instrumental in writing new laws fo school security, senator says
Sen. Todd Gardenhire, the chairman of the Senate Judiciary Committee, told Tennessee Lookout journalist Sam Stockard that refusing to make the records public contributes to the conspiracy theories surrounding the shooting.
Gardenhire made a public records request for the “manifesto and journals left by Audrey Hale,” which he said in the request “will be instrumental in writing new laws regarding school safety.” He was told by the Nashville Police Department that the items remain “relevant to an open criminal investigation” and because of this are exempt under Rule 16 of the Tennessee Rules of Criminal Procedure.
“The issue that raises is: What does he mean by ongoing criminal investigation?” Gardenhire told The Lookout. “The girl is dead. Are they gonna exhume her and find her guilty? Or are there other people involved in this thing?”
Gardenhire is right. Unless there are other suspects or potential suspects, police cannot use the Rule 16 “ongoing investigation” exemption because that exemption is tied to a criminal proceeding. Rule 16 is part of the rule system established by the state Supreme Court to ensure fair trials. The court does not apply its rules to reach over into issues not involving the court system.
Nashville police also cannot rely on federal public records law to govern access to local public records that are governed by Tennessee law.
If there is another legal exemption that allows the writings of Hale to be withheld in this case, I do not know it. And, importantly, police have not described any other reason.
Aside from public pressure, which can be effective, the only way to enforce the law and gain access is for a citizen to file a lawsuit in which the police department would have to show under what legal authority they did not release the records. Then a court would decide.
A common tactic of governmental entities who do not want to release records — for whatever reason — is to delay and risk a lawsuit. The only penalty for willfully denying access to records they knew or should have known were open to inspection is the possibility of having to pay attorney fees for the citizen.
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Deborah Fisher has been executive director of Tennessee Coalition for Open Government since 2013. Previously she spent 25 years in the news industry as a journalist.
Photo “Audrey Hale” by Metro Nashville Police Department. Background Photo “Metro Nashville Police Car” by Thomas R Machnitzki. CC BY 3.0.
