Knowledgebase-Viewing Investigative Records in Open Criminal Cases
May 5, 2003 (updated 11/2017)
You have the following questions:
1. Does an alderman have any rights not enjoyed by the public to view criminal records that are confidential under the Tennessee Public Records Act (TPRA)?
2. Does the fact that the alderman is appointed by the mayor to supervise the police department make a difference in the answer?
The answer to both questions is no.
I have been asked similar questions many times, and have been unable to find any law or legal doctrine under which any individual municipal officer has a right superior to the public in general to inspect public records, unless there is a statutory or charter provision that gives the individual officer such a right. But even if there were such a statutory or charter provision, under the present state of the law in Tennessee, criminal records that are confidential under the TPRA would not be open to inspection by the municipal officer.
Tennessee’s Public Records Act does not on its face protect from disclosure local law enforcement agency records pertaining to open criminal investigations. But under Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1987), Rule 16 of the Tennessee Rules of Criminal Procedure (T.R.Crim.P) controls access to the records of open criminal investigations. Rule 16 dictates what records are subject to discovery on the part of defendants in criminal cases, and Appman essentially made Rule 16 part of the TRPA with respect to what records are closed to the public under that law. Nothing in Appman suggests that a member of a municipal governing body stands in any better position with respect to Rule 16 than does any other citizen.
Tennessee Attorney General’s Opinion 99-022 also opines that in addition to Rule 16, 911 tapes in open criminal investigations are also protected from disclosure under the common law. TAG 99-022 cites for support Jennings v. Johnson, 480 F. Supp. 47 (E.D. Tenn. 1979), which held that the state and its criminal investigators were entitled to a qualified privilege from the discovery of information compiled during an on-going homicide investigation. That case is less than half a page, and does not even mention the TPRA. But as noted above, that Law on its face does not protect from disclosure local law enforcement agency criminal investigative records from disclosure, and predatesAppman.
Jennings is less than one-half page and is not very informative, but cites for support Jabara v. Kelley, 75 F.R.D. 475 (E.D. Michigan. 1977). The latter case declares that:
It is well established that the government has a qualified privilege to prevent public disclosure of investigative files and related material prepared in the course of an ongoing investigation. As the court in Black v. Sheraton Corp. of America, 50 F.R.D. 130, 133 (D.C.C. 1970) explained: “[t]he results of investigations of alleged criminal activity are by their nature the type of information that the public interest requires be kept secret.” [At 493]
I have not done extensive research on the question of whether TAG 99-022 is accurate on that point, because it appears to me that Appman’s application of Rule 16 to local law enforcement agency records in on-going criminal investigations makes it clear that such records are generally closed under the TPRA. However, if for some reason Appman is found wanting in that respect, the “common law” may be another possible tool to protect those records from disclosure.
The second question apparently arises in connection with consideration being given by the mayor to put individual aldermen in charge of various departments of the city. Under that arrangement one of the aldermen would be in charge of the police department. Section 11 of the charter provides that:
The Aldermen shall act on all matters as a body. The Mayor is hereby given the authority to delegate to any Board member any authority he deems appropriate. The Board shall deal with the various agencies, officers and employees of the City, solely through the Mayor, and shall not give orders to any subordinates of the Mayor, either publicly or privately. Nothing herein contained shall prevent the Board from conducting such inquiries into the operation of the City government and the conduct of the City’s affairs as it may deem necessary. All members of the Board of Aldermen shall have the same rights, responsibilities, privileges and powers exercised by all other Aldermen. No attempt shall be made, nor rules or other measures passed or practices adopted that have the purpose or effect of preventing any Aldermen from participating fully or fairly in all matters that come before the Board of Mayor and Aldermen. [Emphasis is mine.]
If we assume that the mayor has the authority to appoint members of the board of mayor and aldermen to supervisory positions over the various departments of the city, they would obviously have only those powers the mayor has under the charter of the city and other general laws of the state (and only to the extent of the mayor’s delegation of authority). Nothing in the charter, or any other statute I can find, gives the mayor any right of access to records in open criminal investigations superior to the right of the general public under the TPRA. The mayor is as much subject to Rule 16 of the T.R.Crim.P as are the aldermen. For that reason, an aldermen appointed to a supervisory position over the police department would have no more right than the mayor to view investigative records in open criminal investigations.
The board of mayor and aldermen of the City certainly has an “inherent right” as a body to investigate its police department and its operations, and to require the police department to produce documents pertaining to the investigation. [See Leahy v. City of Knoxville, 245 S.W.2d 772 (1952).] However, Appman and Rule 16 of the T.R.Crim.P would still close to the board investigative records in open criminal investigations.
Sidney D. Hemsley
Senior Law Consultant