By Deborah Fisher
The Court of Appeals in Nashville has kicked the can farther down the wrong road when it expanded police powers so police agencies can keep just about anything and everything secret from citizens.
Specifically, Judge Richard Dinkins said that if your local police or sheriff’s department claims information is relevant to an ongoing investigation, officers should be able to keep that information confidential. As police have concluded across the state when refusing to release basic documents about crime, “under investigation” covers almost everything they do.
It’s not a harmless power to hand over. News media have been fighting this type of absolute privilege asserted by law enforcement in Tennessee for years.
In 1984, the Memphis Police Department claimed it when The Commercial Appeal was trying to get records from an investigation into a police shoot-out that left seven civilians and one cop dead. The newspaper wasn’t satisfied with the limited information given by police. It sued and fought with law enforcement all the way up to the Tennessee Supreme Court and finally got the investigative file so it could report what happened. But it exposed a bigger problem: The games played when a government agency has unchecked authority, or thinks it has unchecked authority, to control all of its information.
Don’t want that out? “Under investigation.” Embarrassing? “Under investigation.” Politically damaging? “Under investigation.”
Innocent’s death, secret file
It still happens. Earlier this year in Maryville, the Blount County Sheriff’s Department refused to release information about an incident where a deputy shot and killed an innocent man because it was “under investigation.”
The newspaper accepted this for a while, but when a reporter saw that the deputy was back on patrol, the editors challenged the “under investigation” claim and, reluctantly and with delay, the file was turned over, revealing the sequence of events and missteps that led to the man’s death at the hands of a rookie officer.
Less dramatic but more troubling, law enforcement officials across the state have told media and citizens that they won’t release even the basic who, what, when and where about a crime reported to them and recorded in an incident report because it is “under investigation.” If there was a sexual assault reported in your college daughter’s off-campus apartment complex, under the rationale adopted by the Dinkins opinion, you and your local media can’t find out unless police officers decide they want to tell you.
The Court of Appeals had a chance to stop what has become a rampant misapplication of the criminal court rule twisted to support this logic and which was used in this situation to deny media access to certain police records in the Vanderbilt rape case. The rule was not designed to keep all police information from the public. It was designed so police and prosecutors didn’t have to share certain information with defense attorneys that might reveal their courtroom strategy.
Insight in the dissent
The rule has limits – limits recognized by Judge W. Neal McBrayer in his dissent when he noted that the documents sought by media did not fall under the rule and had, in fact, already been turned over to defense. The Dinkins opinion took a limited rule written for limited circumstances and expanded it into something it is not, unleashing a problem that could have broader impact for law enforcement transparency.
Should some stuff in a police file be confidential until after the trial? Yes. Are there ways to keep sensitive information confidential? Yes. A court’s protective order is one way, and prosecutors got one in the Vanderbilt case.
This case is not about not trusting your local police or sheriff’s department. This is about retaining a citizen’s right to see public documents that help us know if our government is operating the way we want. It’s about citizens’ having a right to know about crimes occurring in their communities in a timely way. It’s about how we want a democratic government to work where the ultimate power lies with its citizens.
The Legislature has never given local police supreme authority to withhold any document they want from the public after a crime has happened. Our Tennessee Constitution doesn’t give police this power. Until the Dinkins opinion, neither had our courts.
Deborah Fisher is executive director of Tennessee Coalition for Open Government, a nonprofit alliance of media, citizens and good government groups promoting transparency. TCOG joined media in the case at issue, The Tennessean, et al., v. Metropolitan Government of Nashville and Davidson County.