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Law enforcement investigatory privilege does not exist

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NEWS MEDIA UPDATE   ·   TENNESSEE   ·   Freedom of Information   ·   May 30, 2007

NEWS MEDIA UPDATE   ·   TENNESSEE   ·   Freedom of Information   ·   May 30, 2007

Law enforcement investigatory privilege does not exist

  • Supreme Court said it is up to the legislature to enact exemptions to open records law based on public policy.

May 30, 2007  ·   Tennessee does not recognize a law enforcement investigatory exemption to its public records law, the Supreme Court ruled Friday.

The court’s decision means reporters from The Jackson (Tenn.) Sun will be able to access at least portions of 369 witness interview cards created by the local police department since 2004. The interview cards contain various biographical information and physical descriptions of people stopped by police under suspicion that they committed a crime, but who were not ultimately arrested or charged.

Even though no provision of the Tennessee Public Records Act blocked their release, the police department withheld access to the cards, arguing that Tennessee should recognize a privilege that exists in other states for information related to law enforcement investigations.

The newspaper sued, and the trial court judge who heard the arguments disagreed with the police and ordered the cards released. The state intermediate court, however, said Tennessee law did provide for a law enforcement investigatory privilege and that it blocked access to the cards. On Friday, the Supreme Court overturned that decision, saying that while there may be arguments in favor of keeping the cards confidential, it is up to the state legislature, not the courts, to enact such exemptions to the Public Records Act.

“Although we are sympathetic to the City’s concerns about the potential consequences of disclosing the field interview cards, the General Assembly, not this Court, establishes the public policy of Tennessee,” the court wrote.

The court pointed out that the Tennessee Public Records Act contains a dozen law enforcement-related exemptions, none of which applied to interview cards that were not being presently used in ongoing investigations.

However, rather than immediately order the cards released, the Supreme Court sent the case back to the trial judge, who will review any cards identified by the police department as being utilized in an ongoing investigation. The Supreme Court emphasized that only those portions of the cards being used in such investigations could be withheld, and other information a card contains should be made public.

The Supreme Court also awarded the newspaper attorney fees in the case, ruling that the police department should have more carefully considered the wisdom of relying on a law enforcement investigatory privilege that had never existed in Tennessee and that one state intermediate court had explicitly declined to recognize in 2004.

On that note, the Supreme Court also let stand an injunction implemented by the trial court that requires the city of Jackson to respond in writing to all future Public Records Act requests made by the newspaper.

“Requiring the City to provide a written response articulating its reasons for nondisclosure will secure the purposes of the Public Records Act by ensuring that the City denies such requests only after thoughtful and careful consideration,” the court wrote.

(Schneider v. City of Jackson, Media Counsel: Charles M. Purcell and Matt S. Shepherd, Waldrop & Hall P.A., Jackson, Tenn.)NW

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