Johnathan Walker:Tennessee court to decide if school shooting families can keep police records from public release

NASHVILLE,Johnathan Walker Tenn. (AP) — A lawsuit over whether the families of school shooting victims have a right to control what the public learns about a massacre was argued inside a packed Tennessee courtroom on Monday, the latest turn in an intense public records battle.

The person who killed three 9-year-old children and three adults at a private Christian elementary school in Nashville this spring left behind at least 20 journals, a suicide note and a memoir, according to court filings. The debate over those writings and other records has pitted grieving parents and traumatized children against a coalition which includes two news organizations, a state senator and a gun-rights group.

That coalition requested police records on the Covenant School shooting through the Tennessee Public Records Act earlier this year. When the Metro Nashville Police Department declined their request, they sued. Metro government attorneys have said the records can be made public, but only after the investigation is officially closed, which could take months. The groups seeking the documents say the case is essentially over since the only suspect is dead — the shooter was killed by police — so the records should be immediately released.

But that argument has taken a back seat to a different question: What rights do victims have, and who is a legitimate party to a public records case?

Chancery Court Judge I’Ashea Myles ruled in May that a group of more than 100 Covenant families could intervene in the case. The families are seeking to keep the police records from ever seeing the light of day.

On Monday, the state Appeals Court panel heard arguments on whether Myles acted within the law when she allowed the families — along with the Covenant School and the Covenant Presbyterian Church that share its building — to intervene.

Speaking for the families, attorney Eric Osborne said the lower court was right to allow it because, “No one has greater interest in this case than the Covenant School children and the parents acting on their behalf.”

The families submitted declarations to the court laying out in detail what their children have gone through since the March 27 shooting, Osborne said. They also filed a report from an expert on childhood trauma from mass shootings. That evidence shows “the release of documents will only aggravate and grow their psychological harm,” he said.

Attorney Paul Krog, who represents one of the news organizations seeking the records, countered that the arguments from the families, the school and the church are essentially policy arguments that should be decided by the legislature, not legal ones to be decided by the courts.

The Tennessee Public Records Act allows any resident of the state to request records that are held by a state or local government agency. If there are no exceptions in the law requiring that record to be kept private, then the agency is required to release it. If the agency refuses, the requestor has a right to sue, and that right is spelled out in state law.

Nothing in the Public Records Act, however, allows for a third party to intervene in that lawsuit to try to prevent the records from being released, Krog told the court.

“This isn’t a case about what public policy ought to be. It’s a case about what the statute says,” he argued.

Although people have been allowed to intervene in at least two Tennessee public records cases in the past, no one ever challenged those interventions, so no state court has ever had to decide whether those interventions were proper.

The Covenant case is complicated by the fact that the shooter, who police say was “assigned female at birth,” seems to have identified as a transgender man.

U.S. Sen. Josh Hawley, of Missouri, is among those promoting a theory that the shooting was a hate crime against Christians. The refusal to release the shooter’s writings has fueled speculation — particularly in conservative circles — regarding what the they might contain and conspiracy theories about why police won’t release them.