October 16, 2023
The Tennessee Court of Appeals has heard oral arguments on October 16, 2023, regarding the Covenant Shooter “Manifesto” case. Tennessee Firearms Association, with the assistance of Judicial Watch, is one of the parties that sued
the Metropolitan Government of Nashville and Davidson County to obtain
access under Tennessee “Open Records” law to the writings and materials
seized from and related to the now deceased Covenant Shooter. The Court of Appeals heard oral arguments on October 16, 2023, on the limited issue of whether the Chancellor had properly approved allow third parties to inject themselves into the case. Tennessee's "open records" statute is designed for a streamlined and expedited process. Typically a state resident requests in writing access to a public record from a government entity. The government entity has only a few days to respond in writing to the request by producing the records, seeking additional time (if justified) or denying the claim based on a specific exemption. If the government denies production, the requesting entity can file a petition with a court in a statutory procedure created by the legislature which is specifically designed to quickly allow a court to look at the request, look at the responsive documents, determine if the government's exemption applies and then order whether the requested materials shall In be produced. No discovery, no depositions, it is just few simple questions such as "do the records exist" and "is the government's objection one recognized in the law". In most instances, these “open
records” lawsuits are typically resolved quickly since they only involve the questions of whether the requested documents are protected from disclosure.
However, the Covenant Shooting "open records" case is, for some reason, very different. As the oral arguments reflect, it is one full of emotion. But it is also one which draws the line between the job of the Legislature to craft public policy and the courts to interpret and apply the laws that the legislature enacted.
Although the Chancery Court started off somewhat on a normal course, things changed.
The
Covenant Church, the Covenant School and some large but unspecified
number of Covenant parents asked the 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. When they did, they had the help of
approximately 20 individual attorneys representing them.
The Chancellor’s decision to allow the Covenant Parties to insert themselves as parties in the open records case caused a procedural issue which forced those who had filed the written requests for the records to immediately appeal the Chancellor’s intervention order to the
Tennessee Court of Appeals.
The Tennessee Court of Appeals heard oral
arguments in the case on Monday, October 16, 2023. The Court will now review the filed pleadings and render a decision. It is foreseeable that whatever the Court decides may result in someone asking the Tennessee Supreme Court to re-examine the case and create entirely law in Tennessee on the complicated question of whether the existing statutes allow for intervention or not. Further, whatever the courts might decide, the Legislature has the authority to change that too.
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