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Vanderbilt Rape Records Deemed to be Priviledged

NASHVILLE (CN) - Records about a campus rape allegedly perpetrated by former college football players cannot be released because they are part of an ongoing police investigation, a state appellate judge ruled.

Four former Vanderbilt University football players were indicted last year on aggravated rape and sexual battery charges for an alleged attack on a student in an on-campus dorm.

A public records request from a Tennessean reporter seeking any records in the possession of the Metropolitan Nashville Police Department about the alleged rape was denied.

A media coalition including the Tennessean, Associated Press, Knoxville News Sentinel, Memphis Commercial Appeal, local TV news stations and other press groups sued the City of Nashville and Davidson County in February, seeking access to the records.

In March, the Davidson County Chancery Court granted the media outlets access to third-party text messages and emails, Vanderbilt access card information, emails and reports given to police by Vanderbilt, and "pano scan data of the Vanderbilt premises," the ruling states.

But the Tennessee Court of Appeals reversed that decision, largely on the basis of affidavits from Nashville Metro Police Chief Steve Anderson and District Attorney General Victor Johnson, who said that the investigation is still active and ongoing.

"It is apparent from the affidavits that the material that is the subject of the request is 'relevant to a pending or contemplated criminal action' and therefore not subject to disclosure," wrote Judge Richard Dinkins, citing Appman vs. Worthington, a Tennessee Supreme Court decision holding that law enforcement records which are open and relevant to a pending criminal action are exempt from disclosure.

Tennessee Rule of Criminal Procedure 16(a)(2) "does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case."

The Vanderbilt records are not available for inspection under the Tennessee Public Records Act because of Rule 16(a)(2), the appeals court ruled.

"In light of the pending investigation and prosecution arising out of the events for which the records were [compiled], access under the TPRA is not required at this time," wrote Dinkins for a panel.

Judge Neal McBrayer wrote a dissenting opinion, taking issue with the majority's application of the criminal procedure rule. He said that the records have already been released to the accused former football players' attorneys.

"[The Metropolitan Government] conceded in both its brief and at oral argument that the materials sought by the petitioners had been provided to the criminal defendants, placing the materials outside the scope of materials described in Rule 16(a)(2). Certainly, the materials making up Metro's records regarding the alleged rape on the Vanderbilt campus, as described by the trial court, would not all fall within the description of documents found in Rule 16(a)(2)," wrote McBrayer. "As a result, I conclude, as did the trial court, that the materials sought by petitioners were not completely excepted from disclosure under the Public Records Act by virtue of Rule 16(a)(2)."

The Tennessee Coalition for Open Government is a plaintiff in the case. TCOG Executive Director Deborah Fisher wrote in a column Monday that withholding records that are part of an investigation is overbroad.

"The Court of Appeals in Nashville last week kicked the can farther down the wrong road when it expanded police powers so they could keep just about anything and everything they want secret from citizens," she wrote.

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