E-FILED 5119/2017 10:28 AM CLERK & MASTER DAVIDSON CO. CHANCERY CT. IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE TWENTIETH JUDICIAL DISTRICT, DAVIDSON COUNTY, PART IIT IN RE: INVESTIGATIVE FILE > TENNESSEE BUREAU OF ) INVESTIGATION ) NO: 147-442-101 INVESTIGATIVE FILE: ) NA-5U-000011 ) MEMORANDUM AND ORDER THAT: (1) 5/22/17 HEARING IS UNNECESSARY AND REMOVED FROM DOCKET AND Q)5/22/17 DEADLINE FOR DA TO FILE DATE REDACTIONS CAN BE COMPLETED Hearim: rom Docket ‘The hearing set for May 22, 2017, at 9:00 a.m. in this case, to obtain a court order for disclosure to the public of the above-captioned investigative file of the Tennessee Bureau of Investigation (the “File"), is no longer necessary. Upon finalizing a redaction protocol, an order for disclosure of the File to the public will be issued shortly. The reason the May 22, 2017 hearing is no longer necessary is that there have been the following developments since the May 5, 2017 filing of the Petition in this case to disclose the File, 1, No pending or contemplated criminal prosecution—Now that the District Attomey General for the Twentieth Judicial District (the “DA") has announced his detetmination not to seek criminal charges in the shooting death of Jocques Clemmons, there is no pending or contemplated criminal prosecution that would conflict under Tennessee Rule of Criminal Procedure 16 with the petition of the DA for disclosure of the File.2. No intervention filed to object to disclosure—In the 14 days which have passed since the filing of the Petition in this case, no one has sought to intervene and object to disclosure of the File to the public, 3 sclosure_is_consistent with the public policy declared by the Legislature—The Attorney General has greatly assisted the Court with the filing of its substantive, authoritative and analytical May 18, 2017 Response. The Court adopts the analysis and citations to authority provided by the Tennessee Attorney General that, “With the adoption of Public Chapter 722, the Tennessec General Assembly has declared that the public policy of this State is that TBI investigative records around officer-involved shooting deaths should be made public after the investigation and prosecution are completed. . . . For example, in introducing the bill on the House floor, the House Sponsor, Representative G.A. Hardaway stated, “We have to be able to trust that the process works, and for that to happen, the process has to be transparent. The fair, equitable administration of justice is enhanced by the increased transparency created by this bipartisan legislation,” See http:/Awapp.capitol. n/apps’BillInfo/Default.aspx?/BillNumber=SB 1039. (video recording of House and Senate sessions).”! 4. The Attorney General has not objected to disclosure—“Accordingly, under these very limited cireumstances, the Attorney General submits ‘The Tennessee General Assembly has recently recognized that there should be a very limited exception to this prohibition on the disclosure of TBI investigative records without a court order or subpoena. During the 2017 regular legislative session, the General Assembly adopted Public Chapter No, 277, which provides in pertinent part es follows: (@) After completion ofan investigation into an officer-involved shooting death by the Tennessee burcau of investigation and after the completion of the prosecutorial funetian by the district attorney general, notwithstanding § 10-7-504 to the contrary, the investigative record of the incident shell become a public record pursuant to title 10, chapter 7 Notwithstanding § 10-7-504, the district attorney general may disclose all or part of the investigative record to the public prior to the record becoming a public record as provided in this section As the language of Publie Chapter 277 reflects, the Act provides that anly a very narrow eategory of TBI investigative records-nrecords of an investigation into an offiger-involved shooting death ~ should bbe released without @ court order or subpoena, The Act further provides that it shall apply to afficer-involved shooting deaths occurring on or after the effective date (May 4, 2017), 2that it would be consistent with the public policy of this State, as expressed in Public Chapter 277, for this Court to order the disclosure of the TBI investigative file in question pursuant to Tenn. Code Ann. § 10-7-504(a)(2).” Response of Attorney General to Amended Verified Petition, May 18, 2017, p. 5. 5, Postions of the File gre capable of being redacted to protect identifviny and _personal_information—The Amended Verified Petition, filed May 15, 2017 im this case, at paragraph 4, proposes that “Identifying and personal information will be redacted” by the DA. Based upon the very informative and competent filing yesterday, May 18, 2017, of Assistant Attorney General Janet Kleinfelter and a trial court decision of Chancellor Newsom from Shelby County, fn Re: Investigative File, Tennessee Bureau of Investigation Investigative File: ME76C-000007, State of Tennessee ex rel, Amy P, Weirich, District Attorney General for the Thirtieth Judicial District and Mark Gwyn, Director of the Tennessee Bureau of Investigation v. Connor Schilling, Shelby County Chancery Court No, CH-15-1472-3, a redaction protocol is provided below for District Attorney General Funk to review and respond to concerning maintaining the confidentiality protections of state and federal law of personal information, such as social security numbers, drivers license number, addresses, etc., and the personal information of persons who cooperated with the TBI investigation. Based upon the foregoing developments, it is therefore ORDERED that the May 22 2017, 9:00 a.m. hearing is removed from the Docket. DA to State Date Redactions Can Be Completed It is farther ORDERED thet by Monday, May 22, 2017, District Attomey General Glean Funk shall file a notice with the Court specifying the date by which his office can have the following matters redacted from the File.ion Protocol ‘These are the redactions that are ORDERED. + Social security numbers; + Official state or government issued drivers licenses or identification numbers; + Alien registration numbers or passport numbers; + Employer or taxpayer identification numbers; + Unique biometric data, such as fingerprints, voice prints, retina or iris images, or other unique physical representations; and + Unique electronic identification numbers, addresses, routing codes or other personal identifying data which enables an individuel to obtain merchandise or service or to otherwise financially encumber the legitimate possessor of the identifying data. The Tennessee Court of Appeals has construed the term “addresses” to mean residential addresses, See Herbert §, Moneier v. Nina Harris, et al., No. E2016- 00209-COA-R3-CV (Mar. 10, 2017). See Tenn. Code Ann, § 10-7-504(a)(29); Tenn, Comp, R.& Regs. Ch. 1395-1-6-.02(3); Stare ¥, Ostein, 293 S.W.34 519, 528 (Tenn. 2009); Swift v. Campbell, 159 $.W.3d 565, 571-572 (Tenn. Ct. App. 2004); Arnold v, City of Chattanooga, 19 $.W.3d 779, 784 (Tenn. Ct. App. 2000). Additionally, to the extent any of the following records or information are contained in the File, they are confidential, and it is ORDERED that they shall be redacted prior to disclosure of the File. + Personal information contained in motor vehicle records, which would include driver identification number, name, address, telephone number, an individual's photograph or image, social security number, medical or disability information (18 U.S.C, § 2725, Tens. Code Ann. § 55-25-404), + Credit card account numbers and any related personal identification numbers or authorization codes (Tenn, Code Ann. § 10-7-504(a}(19));+ Any information or other records regarding an applicant for a handgun carry permit or permit holder released to the TBI for the purpose of conducting an investigation (Tenn, Code Ann, § 10-7-504(0)(2)); + Any bank account information, including but not limited to, debit card numbers, and any related personal identification numbers or authorization codes, bank account numbers, and transit routing numbers (Tenn, Code Ann. § 10-7-504(r); and + Medical records as defined in Tenn. Code Ann. 63-2-101(c)(2) (Tenn Code Ann. § 63-2-101(b)(1)). Further, the Court construes paragraph 4 of the Amended Verified Petition to be a motion under Tennessee Civil Procedure Rule 26.03 for a protective order. Under the authority of that Rule, the Court ORDERS that personal identifying information (specified above) with respect to current and former public employees and of persons who cooperated With the TBI in their investigation, shall be redacted from the File prior to disclosure to the public, Jn s0 ordering, this Court adopts the analysis and authorities of the Attorney General in its May 18, 2017 Response. Upon weighing the factors of Ballard v, Herzke, 924 $.W.34 652, 658, 662 (Tenn. 1996) the Court finds that the personal identifying information of curtent and former public employees and of persons who cooperated with the TBI investigation are certainly matters of private concern and would appear to be of little legitimate public interest, and disclosure of such personal identifying information could result in serious embarrassment or annoyance for such persons. These findings and conclusions are the basis for issuance of the Rule 26.03 protective order redactions,Next Step Upon the filing of the Notice on May 22, 2017, by District Attorney General Glenn Funk stating the date the redactions can be completed, the Court will issue an Order setting a date certain for the redacted File to be posted on the DA's website for 30 days, after which time the File shall be removed from the website /s/ Ellen Hobbs Lvle ELLEN HOBBS LYLE. CHANCELLOR ce by U.S. Mail, email, or efiling as applicable to: District Attorney General Glenn Funk Deputy Attorney General Janet Kleinfelter Jamie Vaughan—WKRN-Channel 2 Stacey Barchenger—The Tennessean ‘Tim Townsend—Trial Court Administrator