Jackson Sun wins two records lawsuits loses on 911 tapes of TDOT shooting

By JIMMY HART
jhart@jacksonsun.com
Feb 25 2005

            The Jackson Sun won two out of three initial legal battles with the city of Jackson in the newspaper's open records lawsuit, with a Madison County chancellor granting the newspaper access to requested police and Diamond Jaxx information while denying access to a 911 audio tape from last month's TDOT shooting.

            Chancellor James Butler, in a strongly worded ruling released Thursday, directed the city to ''comply immediately'' with the newspaper's request, finding that the city ''engaged in a willful refusal to disclose a portion of the public records'' to The Sun. The city has five days after an order is drawn up and filed in Chancery Court to comply. Butler asked The Sun's attorney Chuck Purcell to draw up the order.

            Future written requests from the newspaper must be responded to in writing, and if a request is denied, the city must give a reason, the judge ruled. Butler also ordered the city to pay ''some award'' of attorney's fees and court costs. A hearing will be held within the next 15 days to determine that.

            Butler, however, supported the position of the city, local district attorney and State Attorney General's office that a 911 tape from last month's Tennessee Department of Transportation shooting is not a public record, but part of an ongoing criminal investigation. Butler also ruled that it was OK for the attorney general's office to intervene on the tape issue.

            ''We're very pleased by the ruling overall,'' said Sun Executive Editor Richard Schneider, who was a plaintiff in the suit along with reporters Tajuana Cheshier and Jamie Page.

            City attorney Lewis Cobb could not be reached for comment Thursday on whether the city would appeal the judge's ruling.

            The ruling comes after last week's ruling in Nashville, where a judge there ordered the state's TennCare program to turn over certain public records in response to a request from The Tennessean newspaper. The Tennessean sued the state for access to the records.

            The Sun sued the city of Jackson last month, accusing city officials of wrongly denying access to certain records or failing to respond to the newspaper's request for certain records. The newspaper was seeking access to the following: Field interview ''cards,'' which are police files created when officers stop citizens, question them and sometimes even photograph them without making an arrest; financial records for the Diamond Jaxx, whose owners have notified the city of plans to relocate because of consecutive years of losses; and the 911 tape of the phone call by a victim in the TDOT shooting.

            Butler's ruling comes after a three-hour hearing earlier this month in which the two sides made their cases as to why the records should or should not be opened. Numerous witnesses were called, including Police Chief Rick Staples, and the State Attorney General's office even sent two attorneys to argue against release of the 911 tapes.

            The city argued the following: That releasing the field interviews to the public would make the jobs of investigators much more difficult by revealing police tactics and possibly endanger the lives of potential witnesses and informants; that releasing Jaxx financial information would violate a confidentiality agreement between the city and the Jaxx owners; and that the 911 tape could contain statements of potential witnesses and jeopardize the right to a fair trial for the defendant.

            After the hearing, the city presented Butler with a 911 tape transcript, Diamond Jaxx financial records and police field interviews so far this year for him to review and study the applicable law before making a ruling.

            The field interview issue has drawn the interest of the American Civil Liberties Union of Tennessee, whose staff attorney attended the hearing earlier this month. The ACLU is concerned the field interview practice could be a form of racial profiling. While police denied The Sun's initial request to see its interview files, the department eventually did provide statistics about the files that showed a vast majority contained photos of black males. The files can be kept indefinitely, police said.

            Schneider said Thursday that the judge was clear in saying that the field interviews were not part of an ongoing investigation and that the Diamond Jaxx records should be open.

            ''The bottom line is, we believe the public has the right to this stuff,'' Schneider said.

            In his ruling, Butler noted: ''Public policy favors the right of citizens to inspect public records and thus, the public's right to access records of governmental agencies is very broad, creating a presumption of openness.''

            Schneider said it was particularly ''bothersome'' that the city ''never even made an argument'' by refusing to respond to the request for Jaxx financial information.

            ''It just shut us down,'' he said. ''But what the judge said was, 'You have to follow the law.' ''

            Schneider said he realizes the city may appeal the ruling, but added that the newspaper is considering challenging the 911 tape ruling.

            ''We'll decide that soon,'' he said.

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