Kingsport Times News Tuesday, September 2, 2014

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Kingsport denies FOIA request for TBI investigation of police officer

April 13th, 2009 12:00 am by Rain Smith

Kingsport officials have denied access to the files of a TBI investigation into the conduct of a city police officer.


But according to the executive director of the Tennessee Coalition for Open Government, a 1986 Tennessee Supreme Court ruling stipulates the report is public record. The Times-News has asked its attorney to review the matter.


A Freedom of Information Act request was filed by the Times-News on April 3, after learning the TBI investigated officer Bryan Carter's Oct. 28 traffic stop of two Mexican citizens.


In that incident on Interstate 81, Carter seized $2,675 from the two subjects. Though the pair had no driver's license and were in possession of drug paraphernalia, they were allowed to drive away without having charges placed against them.


According to a letter from the city clerk's office, the Times-News FOIA request was denied after city attorney Mike Billingsley deemed the records confidential. In making the decision, Billingsley says he consulted the General Counsel of TBI and the office of Open Records Counsel.


The city cites Tennessee Code Annotated 10-7-504 (a) (2), which reads, "All investigative records of the Tennessee bureau of investigation...shall be treated as confidential and shall not be open to inspection by members of the public. The information contained in such records shall be disclosed to the public only in compliance with a subpoena or an order of the court of record..."


Attorney Frank Gibson, executive director for the Tennessee Coalition for Open Government, says the city would be correct if the incident was still under investigation.


But since the case has been closed, and no criminal charges are pending, "There's no need to keep it secret, unless the city of Kingsport is just trying to protect itself from more embarrassing publicity."


"The purpose of confidentiality in a matter like this is to protect the fruits of an investigation, so that defendants in criminal cases cannot obtain an unfair advantage by getting information that they might not be able to get through normal discovery," Gibson told the Times-News. "There is no criminal case pending here, the matter has been dropped. There is no need for information in the hands of the city of Kingsport to be held, regardless of the source of that information."


The basis for Gibson's opinion is the case of Memphis Publishing Co. v. Holt, in which the Tennessee Supreme Court upheld a ruling that police records are covered by the state open records law. In that case, media sought records of an internal investigation conducted by Memphis Police after a fatal hostage standoff.


"If it were a pending criminal case, and it were a matter still under investigation, (Kingsport) could argue that it was not a public record," Gibson said. "If it's a closed matter, the information should be made public."


The TBI's report on Carter was enclosed in a Feb. 17 letter from Sullivan County District Attorney Greeley Wells to Police Chief Gale Osborne.


In that letter, the district attorney called the specific incident, “shoddy police work at best and official misconduct at worst.”


Wells told the Times-News that Carter's actions would have been presented to the grand jury under the official misconduct statute. But since the suspects have returned to Mexico, that is no longer the case.


"Assuming that there were charges preferred by the grand jury, (the Mexican citizens) would be necessary witnesses," Wells said on Tuesday. "If they're not available there's not reason to try and do anymore with it."


For Wells, one sticking point in the October traffic stop was the Tennessee Notice of Property Seizure, provided by Carter to the two subjects. It identified $2,675 had been seized, but did not identify the officer or his law enforcement agency.


“The notice did not identify the seizing agency or seizing officer, and from the copy I have seen, does not identify the reason for seizure,” Wells writes in his letter to Chief Osborne. “In fact when I requested the TBI investigation I had no idea which department was involved.”


Wells requested TBI's involvement on Nov. 12 of last year, after he was contacted by Johnson City attorney Don Spurrell. The Mexican citizens had conferred with Spurrell, claiming Carter had seized approximately $4,500; not the $2,675 Carter cited in the incomplete seizure notice.


A check of police records from that day, Oct. 28, also shows no incident report was filed at the Kingsport Police Department.


According to Kingsport's public information officer Tim Whaley, the entire incident "is a case of really sloppy work."


Carter was reprimanded with three days suspension without pay, suspended from working interstate for 90 days, and issued remedial training on the preservation and handling of evidence.

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