These “open records” lawsuits are typically resolved quickly and normally involve the individual or entity that wants to view or obtain copies of public records and are defended by a government entity that has failed to produce the records, typically by claiming that they are exempt. In this instance, the lawsuit was filed when Metro claimed that the records were subject to a pending criminal investigation, which itself seemed odd because Governor Lee had reported and a Metro press release appears to confirm that Metro was going to release some of the “manifesto” records until Metro was sued to get a court order to force it to do at least some of what it had indicated it was going to do.

Governor Lee posted on Twitter on April 27, 2023 that “The Covenant shooting was a tragedy beyond comprehension, & Tennesseans need clarity. We’ve been in touch with the Nashville Police Department, & today, Chief Drake assured me that documents & information regarding the shooter will be released to the public very soon.”

The unusual step in the effort to see the shooter’s manifesto and other public records concerning the shooting occurred when the Covenant Church, the Covenant School and some large but unspecified number of Covenant parents (the “Covenant Parties”) asked a Davidson County Chancellor to allow them to “intervene” in the case because they wanted the Court to rule that the records, all the records, concerning the Covenant Church, School and shooting should be permanently sealed from any public inspection. The Chancellor issued an order allowing these “Covenant parties” to intervene and they did so with the help of approximately 20 individual attorneys representing them.

The Chancellor’s decision to allow the Covenant Parties to inject themselves into an open records lawsuit caused a procedural issue to arise which forced the Plaintiffs, including TFA, a retired sheriff, a state senator in his individual capacity, two news agencies and others, to immediately appeal the Chancellor’s intervention order to the Tennessee Court of Appeals.

Since that time, and while the appeal was pending, some news stories have covered what appears to be 3 pages of the Manifesto that were leaked. A portion of the alleged Manifesto was reported on by Steven Crowder in a Rumble podcast which included screen shots of the pages. A few days after the Crowder story, Candice Owens did a podcast in which she asserted that there were additional factors related to the shooter’s motives. Shortly after these events, the Metro Nashville police department announced that it had placed seven officers on “administrative leave” and announced that it had opened an investigation regarding the leaked documents. Some of these events raise questions about why the Covenant Parties are involved in the open records litigation.

On November 30, 2023, the Court of Appeals issued its ruling in the appeal, a ruling limited solely to the issue of whether the Covenant Parties should be allowed to participate in the open records litigation over the release of the documents and things that are in the custody of the Metro Police Department.

At this point the case is at a fork in the road. The Petitioners have the option to ask the Tennessee Supreme Court to address the issue of whether the Covenant Parties should be allowed to participate in the open records litigation. The Petitioners may have an option to ask the Court of Appeals to reconsider its ruling. Absent continued appellate activities, the case will be remanded to the trial court for further hearings on the merits of whether Metro should be required to produce some or all of the records, redacted or not, that have been requested.

An additional aspect of this issue could potentially involve the Tennessee Legislature. The court will decide the matter that is pending based on the law as it exists. However, if the Tennessee Legislature changes the statutes in 2024 to, for example, address the issue of whether third parties should be allowed to intervene, or whether the proposed new exceptions that the Covenant Parties seek should be allowed, or any other issues, then that change in the law might impact the case including the issue of whether intervention is appropriate. If you are interested in open records and if you believe that the public, and news reporting agencies, should be able to see arrests reports, documents seized as part of a criminal investigation, etc., then you may want to contact your legislators and insist that they look at this issue and address the question of public access to government held records of a crime.