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Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following the Tennessean v. Metro

Daniel A. Horwitz, Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following The Tennessean v. Metro, 12 Tenn. J. L. & Pol'y 129 (2016).

24 Pages Posted: 6 Oct 2016 Last revised: 24 Feb 2017

Daniel A. Horwitz

Independent

Date Written: October 3, 2016

Abstract

In March of 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (“TPRA”) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by THE TENNESSEAN against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling in The Tennessean v. Metro will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is not yet clear.

The Tennessean v. Metro represented the first occasion that the Tennessee Supreme Court has considered when, if ever, crime victims’ private records are protected from public view under the TPRA. Notably, although the case’s central holding that law enforcement’s investigative records are shielded from disclosure “during the pendency of [a case’s] criminal proceedings and any collateral challenges to any convictions” provides some measure of protection to crime victims, significant questions remain unsettled. Specifically, the court’s ruling in The Tennessean potentially establishes a three-part “coverage gap” that creates substantial uncertainty as to whether crime victims’ private records are exempt from public disclosure in the following instances:

(1) if their cases do not result in a plea or a conviction;

(2) if they are not victims of a sexual offense; or

(3) if the records that they seek to protect from public disclosure – no matter how personal or private in nature – are not specifically exempted by statute.

In a future case, however, the Tennessee Supreme Court is likely to hold that these three categories of records are exempt from disclosure under the TPRA as well. Specifically, the Court is likely to find that such records are shielded from public view pursuant to Article I, section 35 of the Tennessee Constitution and Tenn. Code Ann. § 40-38-102(a)(1) – two of Tennessee’s relatively new “victims’ rights” provisions – which collectively establish that crime victims have legally cognizable rights to be protected from “intimidation,” “harassment,” “abuse,” “indignity,” and “lack of compassion” throughout Tennessee’s justice system.

Suggested Citation

Horwitz, Daniel A., Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following the Tennessean v. Metro (October 3, 2016). Daniel A. Horwitz, Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following The Tennessean v. Metro, 12 Tenn. J. L. & Pol'y 129 (2016).. Available at SSRN: https://ssrn.com/abstract=2847452

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