                  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, Judge

                            _____________________________

                 No. M2014-00524-SC-R11-CV – Filed March 17, 2016
                         _____________________________

GARY R. WADE, J., dissenting.

       In the past, this Court has consistently refrained from creating public policy
exceptions to the Tennessee Public Records Act (TPRA), Tenn. Code Ann. §§ 10-7-101
to -702 (2012 & Supp. 2014), because the authority to enact such exceptions rests solely
with the General Assembly. See, e.g., Schneider v. City of Jackson, 226 S.W.3d 332, 344
(Tenn. 2007) (―[T]he General Assembly, not this Court, establishes the public policy of
Tennessee.‖). Departing from this principle, the majority has concluded that Tennessee
Rule of Criminal Procedure 16 exempts all police records from public disclosure during
the course of a criminal prosecution. The plain language of the rule, however, protects
from disclosure only work product and witness statements. Moreover, I believe that the
victim of the alleged rape is entitled to an adjudication of her claim that public disclosure
of the police records would violate her statutory and constitutional rights. I must,
therefore, respectfully dissent.

                            I. Facts and Procedural History
      In August of 2013, four Vanderbilt football players were indicted on charges of
aggravated rape. The indictments marked the beginning of a high-profile prosecution,
which, following the grant of a new trial in June of 2015, remains ongoing.

       After the indictments, a coalition of media organizations (the ―Petitioners‖) made a
public records request asking the Metropolitan Government of Nashville and Davidson
County (―Metro‖) to disclose ―[a]ny records . . . regarding the alleged rape,‖ although they
later modified the request to exclude any images or video recordings of the victim of the
alleged rape. When Metro denied the request, the Petitioners sought judicial review in
chancery court. After allowing the State and the victim of the alleged rape to intervene,
the Chancellor reviewed the records in camera and held that some, but not all, were
exempt from disclosure pursuant to Tennessee Rule of Criminal Procedure 16(a)(2), which
provides for the confidentiality of the work product of police, prosecutors, and other state
agents. In particular, the Chancellor ruled as follows:

      [R]ecords submitted to [Metro Police] that were not developed internally and
      that do not constitute statements or other documents reflecting the
      reconstructive and investigative efforts of [Metro Police] are outside the
      expansive reach of [Tennessee Rule of Criminal Procedure] 16(a)(2). . . .
      [The Petitioners] are entitled to the text messages [sent by third parties to
      Metro Police], minus any photographic or videographic images. . . . The
      Court directs that these text messages be redacted to delete [the victim‘s]
      name or any of her identifying information. . . . [The Petitioners] are also
      entitled to inspect the Vanderbilt access card information, Pano-scan data[1]
      relating to Vanderbilt University premises, [and emails] recovered from
      potential witnesses and the criminal defendants which were not addressed to
      officials related to [Metro Police] or the District Attorney General‘s Office.
      All of the produced material has to have all videos and photos redacted from
      them, along with [the victim‘s] name and any other personal information
      about her . . . . All of the other materials will be preserved and not
      disclosed . . . .

        The Chancellor declined to address a claim by the victim that public disclosure of
the records would contravene her rights guaranteed by article I, section 35 of the
Tennessee Constitution and by Tennessee Code Annotated section 40-38-102(a)(1) (2014)
(commonly known as ―the Victims‘ Bill of Rights‖). Likewise, the Chancellor declined to
address an argument by the State that the public disclosure of the records would impede a
fair trial in the criminal action against those charged with the rape. The Chancellor
determined that the court presiding over the criminal trial (the ―Criminal Court‖) was
better suited to resolve both of these issues.

       A majority of a Court of Appeals panel reversed, holding that all of the requested
materials were relevant to a pending or contemplated criminal action and were, therefore,
protected from public disclosure by Rule 16(a)(2). Tennessean v. Metro. Gov‘t of
Nashville & Davidson Cnty., No. M2014-00524-COA-R3-CV, 2014 WL 4923162, at *3
(Tenn. Ct. App. Sept. 30, 2014). Judge W. Neal McBrayer dissented, concluding that the
ruling was ―inconsistent with a fair reading of Rule 16(a)(2)‖ and that the Chancellor had
properly applied Rule 16(a)(2). Id. at *4 (McBrayer, J., dissenting).



      1
          ―Pano-scan‖ is a type of panoramic photographic surveillance.
                                               -2-
       During the pendency of this appeal, first to the Court of Appeals and then to this
Court, the prosecution has proceeded in the Criminal Court. As is relevant here, the
Criminal Court issued a series of protective orders placing under seal all portions of the
record containing images, video recordings, personal identifying information, medical
records, and other confidential records of the victim and other witnesses. The Criminal
Court also placed under seal all evidence introduced at the trial of two of the defendants.
After the conclusion of the trial, the Criminal Court judge granted the two defendants a
new trial based upon a finding of juror misconduct. The second trial has not yet taken
place. Other defendants, not involved in the first proceeding, are to be tried separately.

                                       II. Analysis
       The general rule under the TPRA is that any citizen is entitled to inspect the records
of any governmental agency in the state. See Tenn. Code Ann. § 10-7-503(a)(2)(A)–(B).
There are specific statutory exceptions to the general rule of public disclosure, see Tenn.
Code Ann. § 10-7-504(a)–(r), none of which apply here. There is also a catch-all
exception which provides that records are protected from disclosure as ―otherwise
provided by state law.‖ Id. § 10-7-503(a)(2)(A). Based on this ―state law‖ exception,
records may be exempt from public disclosure as provided for in our state‘s constitution,
our statutes, the common law, the rules of court, and administrative rules and regulations.
Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004).

        In this instance, the determinative question is whether the records at issue are
exempt from disclosure based upon the following provisions of state law: (1) Tennessee
Rule of Criminal Procedure 16(a)(2)—which, as noted, provides for the confidentiality of
investigative and prosecutorial work product; (2) Tennessee‘s statutes and constitutional
provisions pertaining to victims‘ rights, see Tenn. Const. art. I, § 35 (―[V]ictims shall be
entitled to . . . [t]he right to be free from intimidation, harassment and abuse throughout the
criminal justice system.‖); Tenn. Code Ann. § 40-38-102(a)(1) (―All victims of crime . . .
have the right to . . . [b]e treated with dignity and compassion[.]‖); and (3) article I, section
9 of the Tennessee Constitution, which guarantees criminal defendants and the State the
right to a fair trial by an impartial jury.

                     A. Tennessee Rule of Criminal Procedure 16(a)(2)
        Rule 16 defines the limits of discovery in criminal cases. Subsection (a)(1)
identifies the information the State must disclose upon request by a defendant. Subsection
(a)(2), which is at issue here, provides as follows:

       Information Not Subject to Disclosure. Except as provided in paragraphs
       (A), (B), (E), and (G) of subdivision (a)(1), this rule does not authorize the
       discovery or inspection of reports, memoranda, or other internal state

                                              -3-
       documents made by the district attorney general or other state agents or law
       enforcement officers in connection with investigating or prosecuting the
       case. Nor does this rule authorize discovery of statements made by state
       witnesses or prospective state witnesses.

This rule embodies the work product doctrine, which ―is based on an attorney‘s right to
conduct his or her client‘s case with a certain degree of privacy, preventing the discovery
of materials prepared by opposing counsel in anticipation of litigation and protecting from
disclosure an adversary‘s ‗mental impressions, conclusions, and legal theories of the
case.‘‖ Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012) (quoting Memphis Publ‘g Co.
v. City of Memphis, 871 S.W.2d 681, 689 (Tenn. 1994)); see also Swift, 159 S.W.3d at
572 (―The central purpose of the work product doctrine is to protect an attorney‘s
preparation for trial under the adversary system.‖).

       This Court first addressed Rule 16(a)(2) as a possible exception to the TPRA in
Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986). In that case, which
involved a request for access to an investigative file pertaining to a shoot-out in Memphis,
―the police investigation had been completed and the file closed, and . . . no proceedings
relative to the ‗incident‘ were pending in any criminal court, and none were
contemplated.‖ Id. This Court ruled that Rule 16(a)(2) did not protect the investigatory
documents from public disclosure: ―[The] limitation on access to records applies only to
discovery in criminal cases. The investigative file sought to be examined . . . is a closed
file, and is not relevant to any pending or contemplated criminal action. Rule 16,
therefore, does not come into play . . . .‖ Id. at 517.

        This Court again addressed Rule 16(a)(2) in the context of a TPRA petition in
Appman v. Worthington, 746 S.W.2d 165, 165 (Tenn. 1987). Defense attorneys who
represented inmates charged with the murder of another inmate filed the petition in an
effort to gain access to the investigative file at the correctional facility where the murders
had taken place. Id. While not challenging the classification of the records as
investigative ―work product,‖ the defense attorneys contended that Rule 16(a)(2) should
not serve as an exception to the duty to disclose under the TPRA. Citing Holt, this Court
held that Rule 16(a)(2) applies as an exception to the obligation to disclose work product
under the TPRA when ―the files are open and are relevant to pending or contemplated
criminal action.‖ Id. at 166. Because the murder charges against the inmates were
ongoing, the Court did not permit an inspection of the investigative work product. Id. at
167.

      A similar issue arose in Schneider, 226 S.W.3d at 335. In that case, the petitioners
sought ―field interview cards generated by police officers‖ who had interviewed several

                                            -4-
individuals, photographed them, and prepared ―cards containing both the photographs and
the officers‘ handwritten notes about the information obtained during the field interviews.‖
Id. After declining to create a ―law enforcement privilege,‖ this Court remanded to the
trial court for a determination of whether any of the field interview cards were protected by
Rule 16(a)(2). Id. at 345-46. Notably, this Court observed that ―[a]n entire field interview
card should not be deemed exempt simply because it contains some exempt
information,‖ pointing out that a ―redaction . . . is appropriate‖ when only a portion of the
information in a record is protected. Id. at 346 (citing Eldridge v. Putnam Cnty., 86
S.W.3d 572, 574 (Tenn. Ct. App. 2001)).2

        In summary, Holt, Appman, and Schneider have established Rule 16(a)(2) as an
exception to disclose under the TPRA—but only when the records sought relate to a
contemplated or ongoing criminal prosecution. Nothing in any of our prior rulings,
however, supersedes the plain language of Rule 16(a)(2), which indicates that a record is
protected only under one of the following conditions: (1) it qualifies as work product,
defined as records ―made by the district attorney general or other state agents or law
enforcement officers in connection with investigating or prosecuting the case‖; or (2) it
consists of a ―statement[] made by [a] state witness[] or prospective state witness[].‖
(Emphasis added.) In my view, the Chancellor correctly interpreted Rule 16(a)(2) by
declining to exempt from disclosure those ―records submitted to [Metro Police] that were
not developed internally and that d[id] not constitute statements or other documents
reflecting the reconstructive and investigative efforts of [Metro Police].‖ As indicated, this
interpretation is not only consistent with the plain language of Rule 16(a)(2), but it is also
consistent with the traditional parameters of the work product doctrine. Wilson, 367
S.W.3d at 235.

        Notwithstanding the textual limitations of Rule 16(a)(2), the majority has broadly
held that all records related to the criminal prosecution are exempt from disclosure. In
particular, the majority has concluded that so long as a criminal action is pending, Rule 16
―limit[s] access to discovery materials to the State and the defendant‖ because ―[t]here is
no provision in Rule 16 for release of discovery materials to the public.‖ In my view, the
majority‘s conclusion rests upon a misinterpretation of Rule 16 and a failure to accord
proper weight to the public nature of criminal proceedings. See U.S. Const. amend. VI
(―In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

       2
          The concurrence emphasizes the Court‘s statement in Schneider that field interview cards
related to ongoing criminal investigations ―would clearly have been exempt from disclosure under
Rule 16(a)(2).‖ Id. at 345. Notably, in Schneider, unlike in this case, all records at issue
constituted police work product. In consequence, Schneider does not support a claim that all
police records, including non-work product, are exempt from public disclosure under Rule
16(a)(2).
                                              -5-
. . . .‖); Tenn. Const. art. I, § 9 (―[I]n all criminal prosecutions, the accused hath the right to
. . . a speedy public trial . . . .‖).

       As noted, Tennessee Rule of Criminal Procedure 16(a)(2) exempts from discovery
only work product and witness statements. The rule is silent as to the dissemination of
discovery information to the public. According to our traditional canons of construction,
―silence in a [rule] is not affirmative law‖ and is ―ordinarily irrelevant to the interpretation
of [the rule].‖ State v. Collier, 411 S.W.3d 886, 897 (Tenn. 2013) (quoting House v.
Estate of Edmondson, 245 S.W.3d 372, 387 (Tenn. 2008)); see also Harrison v. PPG
Indus., Inc., 446 U.S. 578, 592 (1980) (―In ascertaining the meaning of a [rule], a court
cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not
bark.‖). Because Rule 16(a)(2) does not address whether discovery material may be
disseminated to the public, the central premise of the majority‘s holding—that the rule
prohibits the public disclosure of discovery materials—is flawed.3

       Moreover, the majority relies upon the canon of construction that ―the more specific
of two conflicting statutory provisions controls.‖ (Emphasis added.) That canon should
not apply in this instance because, as indicated, the TPRA requires public access unless
―otherwise provided by state law,‖ and Rule 16 does not prohibit public access to
discoverable materials. Thus, the two provisions in question—the TPRA and Rule 16—
are simply not in conflict.

        The majority further indicates that interpreting Rule 16 as allowing public access
under these circumstances ―would have profound adverse consequences for the criminal
justice system.‖ Although this is a valid policy concern, our previous holdings preclude
courts from creating public policy exceptions to the TPRA—a prerogative within the
exclusive authority of the General Assembly. See, e.g., Schneider, 226 S.W.3d at 344.
―[U]nless an exception [to the TPRA] is established, we must require disclosure ‗even in
the face of serious countervailing considerations.‘‖ Id. at 340 (quoting City of Memphis,
871 S.W.2d at 684). While I understand my colleagues‘ desire to ―protect[] the integrity of
the criminal justice system,‖ that policy objective does not justify deviating from the plain
language of the rule. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 9-10 (2012) (emphasizing that judges should remain faithful
to the plain meaning of texts to avoid reading their own values into rules and statutes).


       3
          A separate provision of Rule 16 authorizes the trial court to issue protective orders
placing discoverable materials under seal when necessary to ensure a fair trial, to protect the rights
of the victim, or to safeguard other legally cognizable interests. See Tenn. R. Crim. P. 16(d);
Huskey, 982 S.W.2d at 362. The records included in the Criminal Court‘s protective orders are, of
course, exempt from disclosure. See Huskey, 982 S.W.2d at 362.
                                                -6-
       In summary, the Chancellor properly interpreted Rule 16(a)(2) by holding that it
applies only to records that either contain witness statements or qualify as state work
product. The ruling of the Chancellor should be affirmed.

                                   B. Victims’ Rights
       The victim has intervened in this action to assert her statutory and constitutional
protections against disclosure under the TPRA. As the victim of a crime, she entitled to
―[b]e treated with dignity and compassion,‖ Tenn. Code Ann. § 40-38-102(a)(1), and ―to
be free from intimidation, harassment and abuse throughout the criminal justice system,‖
Tenn. Const. art. I, § 35. The victim contends that these rights provide a basis for
exempting records from disclosure under the ―state law‖ exception of the TPRA.

        In light of its holding that Rule 16 exempts the requested records from disclosure
for the time being, the majority has not addressed this issue. In my assessment, the
victim‘s claim warrants consideration regardless of whether the records are temporarily
exempt from disclosure pursuant to the rule. Both article I, section 35 and section
40-38-102(a)(1), which are designed to insure protections to victims, qualify as ―state law‖
for purposes of the catch-all exception to disclosure under the TPRA. See Swift, 159
S.W.3d at 571-72. Exceptions must be recognized pursuant to the catch-all provision
when, as here, there is a significant risk that the disclosure of documents will contravene
rights guaranteed by provisions in the Tennessee Code and the Tennessee Constitution.
See id.

       Furthermore, the constitutional and statutory rights afforded to victims are broader
in scope than the work-product exception of Rule 16(a)(2). When the criminal prosecution
concludes, the protections of Rule 16 expire. At that point, absent any other exception, the
public records pertaining to the rape will be subject to public disclosure, including data
from the victim‘s cell phone and video recordings of the alleged rape. In contrast, the
victim‘s statutory and constitutional rights remain in effect after the prosecutions come to
an end. In my view, the victim deserves an adjudication of her rights.

      The majority attempts to dispel these concerns by pointing to Tennessee Code
Annotated section 10-7-504(q)(1), an exception within the TPRA which provides as
follows:

             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:

                                           -7-
              (A) Name, unless waived pursuant to subdivision (q)(2);
              (B) Home, work and electronic mail addresses;
              (C) Telephone numbers;
              (D) Social security number; and
              (E) Any photographic or video depiction of the victim.

The majority indicates that this provision will protect the victim following the conclusion
of the criminal action such that she will not be required to assert her constitutional and
statutory rights. I am not convinced. First, this provision applies only if the defendants
either plead guilty or are convicted at trial. Second, the materials exempt from disclosure
are limited. For example, the statute would not protect statements by or about the victim;
written descriptions of photographs and videos of the victim; or most content of the
victim‘s cell phone. These materials qualify for protection under the victims‘ rights
provisions—which, as indicated, apply both during and after the prosecution.

       Under these circumstances, I would remand the matter to the Chancellor for an
adjudication of the victim‘s claims of protection.

                                  C. Right to a Fair Trial
       The final issue is whether the disclosure of any of the requested records would
infringe upon the right to a fair trial in a criminal proceeding, as guaranteed by article I,
section 9 of the Tennessee Constitution. Of course, there are instances when the right to
public disclosure must give way to the right to a fair trial. Here, however, the Criminal
Court balanced these interests in the formulation of its protective orders. Protective orders
characteristically strike a balance between the public‘s right to access and the right of an
accused to a fair trial. See Gannett Co. v. DePasquale, 443 U.S. 368, 398 (1979); Huskey,
982 S.W.2d at 363. Nothing in the record suggests that the Criminal Court‘s protective
orders are inadequate in this regard. Under these circumstances, the right to a fair trial is
adequately protected.

                                       III. Conclusion
       In summary, because I disagree with the majority‘s interpretation of Rule 16(a)(2)
and the majority‘s failure to address the claim asserted by the victim, I respectfully dissent.
I would affirm the Chancellor‘s ruling as to Rule 16(a)(2) and remand the case for the
Chancellor to consider the merits of the victim‘s claim.



                                                            ________________________

                                             -8-
      GARY R. WADE, JUSTICE




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