The Tennessean v. Metropolitan Government of Nashville and Davidson County - Concurring

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 28, 2015 Session

THE TENNESSEAN ET AL. v. METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY ET AL.

Appeal by Permission from the Court of Appeals, Middle Section
Chancery Court for Davidson County
No. 14156IV Russell T. Perkins, Chancellor
_____________________________

No. M2014-00524-SC-R11-CV - Filed March 17, 2016
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Holly Kirby, J., concurring.

I fully concur in the majority opinion in this case but write separately to respond to
the dissent.

One of this Court‟s foremost obligations is to preserve and protect the integrity of
our State‟s criminal justice system. The dissent in this case advocates a position that
would amount to an abdication of this responsibility and would undermine the justice
system we are charged to protect.

The dissent in this case would throw open police files on pending investigations
and criminal prosecutions, not only to responsible media sources, but also to suspected
perpetrators under investigation and their allies, gang members, voyeurs, pornographers,
anyone. As outlined in the majority opinion, such a ruling could have catastrophic
consequences for all involved in the criminal justice system. Citizens who report crimes
privately could be outed. Confidential police information sources could be revealed.
Police efforts to keep the details of a crime and its investigation secret until the
perpetrator is apprehended would be for naught. The identity of persons suspected of a
crime but later exonerated could be made public. Victims of sexual crimes could find
their personal information, as well as videos and photos of their ordeal, readily available
to those who would post the information online or otherwise further torment them.
Inflammatory and inadmissible information about criminal defendants could taint the jury
pool and compromise defendants‟ right to a fair trial. It is hard to overstate the damage to
our justice system that could result from adoption of the dissent‟s position.

Contrary to the representations in the dissent, the holding of the majority in this
case is not a departure from the Court‟s prior decisions, including one decision in which
the dissenting justice concurred. With the concurrence of the dissenting justice, this
Court has recognized that current Court rules prevent the release of criminal investigative
files relevant to pending criminal proceedings. In Schneider v. City of Jackson, 226
S.W.3d 332 (Tenn. 2007), the Court (including the dissenting justice) described a 1987
Tennessee Supreme Court decision as holding “that Rule 16(a)(2) exempted from
disclosure under the Public Records Act all „open‟ criminal investigative files that „are
relevant to pending or contemplated criminal action.‟” Schneider, 226 S.W.3d at 341
(describing Appman v. Worthington, 746 S.W.2d 165, 166 (Tenn. 1987)). With the
concurrence of the dissenting justice, the Schneider Court held: “[I]nformation relevant
to ongoing criminal investigations . . . would clearly have been exempt from disclosure
under Rule 16(a)(2) and this Court‟s decision in Appman.” Id. at 345. And again with
the concurrence of the dissenting justice, the Court in Schneider pointed out the harm that
could result from the very position now advocated by the dissent in this case. The
Schneider Court “recognize[d] that harmful and irreversible consequences could
potentially result from disclosing files that are involved in a pending criminal
investigation.” Id. at 345-46.

The only justification the dissent offers for its extreme position is purported
deference to the legislature. This is, in the words of the late Justice Antonin Scalia, “pure
applesauce.”1 After proclaiming in the dissent in Rye v. Women‟s Care Ctr. of Memphis,
MPLLC2 that the “fundamental responsibility of an independent judiciary is to protect
against the unwarranted intrusion of the legislative branch,” the dissent now pivots to
meekly cede the Court‟s most precious responsibility, preservation of the integrity of our
system of justice. “Jiggery-pokery,” indeed.3

Our legislature recognizes and respects that, while criminal proceedings are
pending, current law prevents the release of criminal investigative files to the public. In
2014, the legislature enacted Tennessee Code Annotated section 10-7-504(q),4 which

1
King v. Burwell, 135 S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting) (regarding Affordable
Care Act).
2
Rye v. Women‟s Care Ctr. of Memphis, MPLLC, No. W2013-00804-SC-R11-CV, 2015 WL
6457768, at *45 (Tenn. Oct. 26, 2015) (Wade, J., dissenting).
3
King, 135 S. Ct. at 2500 (Scalia, J., dissenting).
4
Tennessee Code Annotated section10-7-504(q) provides:

(q)(1) Where a defendant has plead guilty to, or has been convicted of, and has been
sentenced for a sexual offense or violent sexual offense specified in § 40-39-202, the
following information regarding the victim of the offense shall be treated as confidential
and shall not be open for inspection by members of the public:

(A) Name, unless waived pursuant to subdivision (q)(2);

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governs the release of information regarding the victim of a sexual crime after conviction
and sentencing of the perpetrator. This statute dovetails with current law that exempts
from public disclosure files that are involved in a pending criminal investigation. It
would have no purpose if open criminal investigative files were available to the public
prior to conviction and sentencing.5

(B) Home, work and electronic mail addresses;

(C) Telephone numbers;

(D) Social security number; and

(E) Any photographic or video depiction of the victim.

(2)(A) At any time after the defendant or defendants in a case have been sentenced for an
offense specified in subdivision (q)(1), the victim of such offense whose name is made
confidential pursuant to subdivision (q)(1)(A) may waive such provision and allow the
victim‟s name to be obtained in the same manner as other public records.

(B) The district attorney general prosecuting the case shall notify the victim that the
victim has the right to waive the confidentiality of the information set forth in subdivision
(q)(1)(A).

(C) If the victim executes a written waiver provided by the district attorney general‟s
office to waive confidentiality pursuant to subdivision (q)(2)(A), the waiver shall be filed
in the defendant‟s case file in the office of the court of competent jurisdiction.

(3) Nothing in this subsection (q) shall prevent the district attorney general or attorney
general and reporter and counsel for a defendant from providing to each other in a
pending criminal case or appeal, where the constitutional rights of the defendant require
it, information which otherwise may be held confidential under this subsection (q).

(4) Nothing in this subsection (q) shall be used to limit or deny access to otherwise public
information because a file, document, or data file contains some information made
confidential by subdivision (q)(1); provided, that confidential information shall be
redacted before any access is granted to a member of the public.

(5) Nothing in this subsection (q) shall be construed to limit access to records by law
enforcement agencies, courts, or other governmental agencies performing official
functions.
5
The legislative history of Tennessee Code Annotated section 10-7-504(q) shows that the
remarks by all interested parties, either for or against the proposed legislation, presupposed that the law at
that time prevented the disclosure of victims‟ personal information and video or photographic depiction of
victims while the criminal proceedings are pending. Based on that premise, media groups opposed the
legislation, arguing that, if it were enacted, the media would never have a way to contact a sex crime
victim who chose not to execute a waiver of the statute‟s protection. Representative Curry Todd
supported the legislation; he spoke passionately about being a police officer in the sex crimes unit and

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 The dissent‟s professed concern for the rights of the victim in this case can only be
described as high irony. The ruling urged by the dissent would leave witnesses and crime
victims—including children, the mentally incompetent, the financially destitute—to fend
for themselves in the wake of public records requests seeking their personal information,
agonizing photos and videos, and other sensitive information. These requests could be
made by anyone, including perpetrators and their consorts, or others who might seek to
exploit or threaten them. And this is presuming that victims would even learn of any
records requests when they are made.6

The integrity of our criminal justice system depends on the Court setting the
parameters for the flow of information in pending criminal matters. The majority in this
case shoulders the Court‟s solemn responsibility to our State. For this reason, I concur.

____________________________
HOLLY KIRBY, JUSTICE

seeing perpetrators or their allies access a criminal file after conviction and sentencing and then use the
information to humiliate or harass the victim. House State Gov‟t Comm. 3/25/14, discussion of HB 2361.
6
Tennessee Code Annotated section 10-7-504(q), as set forth in footnote 4 of this concurring
opinion, provides for the district attorney general to notify the victim of a records request and of the
victim‟s option to waive the protection of the statute. As noted above, this statute applies only after the
perpetrator has been convicted and sentenced. Under the ruling urged by the dissent, while the criminal
investigation and proceedings are pending, there is no one who would be responsible for notifying a
witness or victim when a records request is made, and the district attorney general would have no
authority to represent the witness or victim in any ensuing records request litigation.

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