Court upholds release of "raw" arrest records

A 35-year-old court order barring the state of Tennessee from publicly releasing the arrest records of people suspected, but not charged or convicted, of committing crimes was overturned Thursday by the U.S. Court of Appeals in Cincinnati (6th Cir.)

The old order was the product of an anonymous plaintiff’s 1973 lawsuit against the city of Nashville seeking a declaration that it was unconstitutional for a law enforcement agency to release such "raw" arrest records. In effect, the John Doe plaintiff won; for the next two decades, according to Thursday’s opinion, the matter was dropped.

But Tennessee lawmakers in 2004 passed a law allowing the state Bureau of Investigation to release "raw" arrest records. The Nashville police department soon after started publishing on its Web site the names of suspects arrested on suspicion of soliciting prostitution, the opinion says. The same Doe plaintiff then brought Nashville and the Tennessee Bureau of Investigation back to court, asking for a new order requiring the government to comply with the old one and to take the "raw" arrest names off the Web.

The media company Gannett, which owns The Tennessean, and NewsChannel 5 Network moved to intervene. They argued that the old order "violated their statutory and constitutional rights to obtain arrest records," Thursday’s opinion says.

The district court vacated the 35-year-old consent decree because it was based on case law that has since been discarded, the opinion says. Doe appealed.

The three-judge panel for the Sixth Circuit found that the old decree was written during a brief period in the 1970s when it was unclear, based on Supreme Court rulings, whether a person’s reputation specifically has constitutional protection. Not long after Doe won his decree in 1974, the Supreme Court found in Paul v. Davis that a shoplifting suspect who was not convicted of the crime had no "constitutional protection against the disclosure of the fact of his arrest." That, the Sixth Circuit panel said Thursday, undermined the legal basis for the old decree in Doe’s case.

While Doe wanted the court to decide the new case on procedural grounds, the panel declined to do so. It upheld the lower court’s order vacating the 1974 decree.