Tennessee Appeals Court Rejects Argument That Covenant Shooter Manifesto Must Remain Concealed to Avoid Copycats

From Brewer v. Metro. Gov’t of Nashville, decided yesterday by the Tennessee Court of Appeals (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson):

This case stems from the tragic shooting that occurred at The Covenant School … in Nashville, Tennessee, on March 27, 2023. After killing six victims within the School, including three children, [the shooter] was shot and killed by responding Metro police officers.

This led to requests from various people and organizations under the Tennessee Public Records Act (the “TPRA”) for various records, including “the shooter’s journals and personal writings.” The trial court concluded this information was exempt from disclosure, but the Court of Appeals largely disagreed. The opinion is long (nearly 15,000 words), but here is an excerpt related to the “school safety” argument:

[Under] the “school safety” or “school security” exception[,] … {[i]nformation, records, and plans that are related to school security, the district-wide school safety plans or the building-level school safety plans shall not be open to public inspection.} … The trial court concluded that dissemination of the shooter’s original works creates a substantial likelihood of copycat school shootings and that preventing access to such material furthers the greater good of Tennessee schools and schools nationwide. By so concluding, the trial court rejected Petitioners’ argument that academic study of a criminal’s manifesto lends itself to prevention. Petitioners relied on the affidavit of Dr. Katherine Kuhlman, who opines that academic study of mass shooters’ writings is an important aspect of early intervention for potential school shooters.

The trial court adopted the Covenant Intervenors’ policy position, which is that “the hateful words of the shooter in this particular case certainly may have an audience in the general public. And as a result, you do have individuals who could take the writings of the shooter and commit violence against the Covenant School or some other school.”

Respectfully, this argument is rooted in speculation about potential future events, not facts present in the record before us. This is a policy debate not contemplated by, or anywhere mentioned in, the TPRA. The trial court’s interpretation of section 10-7-504(p) is, in essence, a policy exception to the TPRA barring any disclosure of a school shooter’s writings and compilations. While the language of section 10-7-504(p) is broad, it is not the blanket policy exception created by the trial court.

This interpretation ignores the legislative directive “to broadly construe the [TPRA] ‘so as to give the fullest possible access to public records[,]'” and instead gives the exemption the broadest possible construction to limit public access to the documents. To the extent a school-shooter manifesto exception to the TPRA is warranted, that decision is more appropriately left to the General Assembly or our Supreme Court….

The court also rejected parents’ claims under the Tennessee Victims Bill of Rights, holding that the text of those provisions show they apply just to “crime victims navigating a criminal case at various stages of a pending or contemplated criminal prosecution” rather than “TPRA requests [from] a third party.” And the court rejected the claim that “Tennessee Rule of Criminal Procedure 16, which [limits] inspection and discovery of evidence in criminal prosecutions” bars disclosure, given that the investigation is closed and there can be no criminal prosecution because the shooter is dead, and apparently acted alone.

The court concluded with guidance to the trial court:

First, the trial court shall instruct Metro to release any responsive documents that were withheld solely based on Rule 16. Second, the trial court shall determine which of the shooter’s writings and other works are exempt from disclosure under [the school safety exception], in accordance with this opinion. {Petitioners concede that they do not seek any information created by Covenant Church or Covenant School regarding its internal safety measures or plans. In addition, such information may be contained within the writings made by the shooter. Any such information should be redacted from responsive documents.}

No record in Metro’s file should be deemed exempt “simply because it contains some exempt information.” “Rather, redaction of the exempt information is appropriate.” [“T]he trial court has discretion to prescribe additional procedures as necessary to govern the proceedings on remand. The entire process should be concluded as expeditiously as possible. Because almost three years has passed since the first request for this information, we encourage the trial court to impose upon [Metro] an expedited schedule for completion of its review of the [requested public records].[“]

More on a separate part of the decision, dealing with copyright questions, in a separate post. Note that I was one of the signers of an amicus brief in this case related to that copyright issue.