NASHVILLE, Tenn. (WKRN) — One Tennessee lawmaker has filed legislation that would “clarify” the state’s open records laws.
The reasoning for the legislation, Johnson told News 2, stems from the death of country music legend Naomi Judd in his district earlier this year.
“There was a tragic incident that took place in Williamson County with a very high-profile family and a very high-profile individual,” he said. “There was an attempt to get some of the medical records, toxicology reports, medical examiner’s records and photos from police body cam footage and that kind of thing. The family very much objected to that information becoming public or those elements becoming public, so they reached out to me about the law.”
Judd died by suicide in April, according to a family spokesperson.
Johnson represents District 27, which encompasses nearly all of Williamson County.
The bill would amend Tennessee Code Annotated Sec. 38-7-110 to say that “if the law enforcement agency investigating a death determines, following a death investigation, that the death was not the result of a crime, then the medical records, law enforcement investigative reports, 911 call recordings, photographs, and any other recordings related to the death are not public records and shall not be released by any governmental agency unless pursuant to a valid court order.”
Currently, that section of law states only the “medical records of deceased persons, law enforcement investigative reports, and photographs, video and other images of deceased persons” are not considered public records.
Johnson’s bill would also add a new subsection to the statute that would prohibit “the interior of a private residence” that was recorded as part of a death investigation where law enforcement determines no crime was committed from becoming a public record.
According to Johnson, his bill only clarifies an accepted interpretation of current law.
“Some would argue, and I believe it’s certainly the spirit of the General Assembly, that in those instances where there is a death that occurs and it’s investigated by law enforcement, and law enforcement determines that no crime has been committed, that those records are not to be made public, and that’s certainly the case in this particular instance,” he said. “There was a challenge to that, and there was some ensuing litigation, and the family reached out to me and asked me to clarify the law, and that’s what SB 9 does. Senate Bill 9 clarifies that, when law enforcement determines that no crime has been committed, those documents, pictures and the video should not be made public.”
Judd’s autopsy report was released to her family, which filed a court petition to seal police reports and recordings made during the investigation into her death. The family later voluntarily dismissed the petition, allowing the records to be released to media.
Johnson said he did not feel the bill could lead to further infringement on the First Amendment’s freedom of the press clause.
“I certainly don’t want that to be the case. I believe in transparency, and I think that it is a bit of a balancing act in terms of what things are made public and what are not,” he said. “For example, video of children is protected. There are already, I believe, reasonable restrictions in terms of what is made public.”
Rather, he said, his bill is “very specific” in its intention.
“I don’t believe it’s the start of a slippery slope or the camel’s nose in the tent,” he said. “I don’t intend for that to be the case. This is dealing very specifically with regards to a death that occurs where no crime has been committed in protecting that very sensitive information for the family and the deceased.”
Similarly, Johnson said the public did not have a right to this kind of “sensitive family information,” even though law enforcement and county government officials are taxpayer funded.
“That argument would carry no water with me,” he said. “We do have wonderful law enforcement people. They have a very difficult job to do. They are public employees and they are paid for with taxpayer dollars, but just because that is the case, it doesn’t mean that sensitive family information regarding an individual’s death or the manner in which they died – it doesn’t mean that that should be made public for all the world to see, especially when there’s not been a crime committed.”
Others, however, disagree. Deborah Fisher with the Tennessee Coalition for Open Government said the bill is not as specific as Johnson claims it is.
“I think it would be a huge change in the law,” she told News 2. “For several decades the courts have said that law enforcement investigative records can be confidential during the pendency of the investigation, but when the investigation is closed, those records become public. It is a key piece of accountability for police to have those kinds of records become public, and this would be just a huge change in the law.”
Fisher said the bill “raises a lot of concerns because it’s very broad.”
“Basically, if law enforcement investigate a death and then someone in law enforcement says, ‘No crime here,’ then everything is confidential. That is not quite right,” she added.
Fisher specifically asked how the law would be interpreted in the instance of officer-involved shootings.
“So, what would that do when there’s a police shooting and there’s no crime committed, because it was lawful use of force and there was an investigation into that?” she asked.
Fisher further noted there were “definitely instances” where having the records be public was good not just for the community but also for the accountability of law enforcement.
“That’s why we have some concerns about this bill,” she said. “This is not a narrowly focused, small cut; this would be a big chunk out of accountability for law enforcement in Tennessee.”
Johnson’s bill does not yet have a House companion bill, but Johnson said he has been in discussions with colleagues about the bill and looks forward to them continuing throughout the legislative session.
“We have frequently had legislation dealing with this matter and, again, trying to thread the needle to make sure that things that should be available to the press or to the public are available but also recognizing there are instances to where that information should be protected,” he said.