In a news conference the day after The Covenant School mass shooting, Nashville police said they were looking into the motive of the shooter, Audrey Hale, and had found a "manifesto" that outlined her attack with maps and action plans for the killings.
Since then, the Nashville police have walked back the characterization of Hale's writings seized at her home as a manifesto but have given little additional information about them. They say they have shared Hale's journals and writings with the FBI's Behavioral Analysis Unit, which is studying them.
Tennessee lawmakers and others are now calling upon the Nashville police to release what they found.
Nashville police have so far refused, saying that the material is part of an ongoing investigation.
Are the records that police seized at Hale's home "public records" open for public inspection under Tennessee law?
First, yes, they are public records. The Tennessee Public Records Act governs records created by any governmental entity of Tennessee, which includes the police department.
"Public records" means all records, "regardless of physical form or characteristic, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity."
The records that police gathered at Hale's home after the shooting fit this description and are public records.
The Tennessee Public Records Act provides that all "state, county and municipal records shall ... be open for personal inspection by any citizen of this state," and custodians cannot refuse access "unless otherwise provided by state law."
This is important: State law, not federal law such as the federal Freedom of Information Act, governs access to public records of Tennessee governmental entities.
The Tennessee Supreme Court has recognized an exemption to the state's public records law for police records under Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure. The court has said that as long as there is a pending investigation and prosecution arising out of the events for which the records were gathered, the records may remain confidential.
However, once an investigation is closed -- there is no longer a pending or contemplated criminal prosecution -- the records are no longer exempt under state law.
In short, the Rules of Criminal Procedure only apply when the district attorney or police are contemplating charging someone or have charged someone with a crime. They don't apply when they have decided not to charge someone.
Sen. Todd Gardenhire, R-Chattanooga, the chairman of the Senate Judiciary Committee, told Tennessee Lookout journalist Sam Stockard that refusing to make the records public contributes to the conspiracy theories surrounding the shooting.
Gardenhire made a public records request for the "manifesto and journals left by Audrey Hale." He was told by the Nashville Police Department that the items remain "relevant to an open criminal investigation" and because of this are exempt under Rule 16 of the Tennessee Rules of Criminal Procedure.
"The issue that raises is: What does he mean by ongoing criminal investigation?" Gardenhire told The Lookout. "The girl is dead. Are they gonna exhume her and find her guilty? Or are there other people involved in this thing?"
Gardenhire is right. Unless there are other suspects or potential suspects, police cannot use the Rule 16 "ongoing investigation" exemption because that exemption is tied to a criminal proceeding.
Aside from public pressure, which can be effective, the only way to enforce the law and gain access is for a citizen to file a lawsuit in which the police department would have to show under what legal authority it did not release the records. Then a court would decide. (A lawsuit subsequently has been filed.)
A common tactic of governmental entities which do not want to release records -- for whatever reason -- is to delay and risk a lawsuit. The only penalty for willfully denying access to records they knew or should have known were open to inspection is the possibility of having to pay attorney fees for the citizen.
Deborah Fisher is executive director of the Tennessee Coalition of Open Government.