IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE
TWENTIETH JUDICIAL DISTRICT, DAVIDSON COUNTY, PART III
AT NASHVILLE
CLATA RENEE BREWER )
)
Petitioner, )
)
v. ) Case No. 23-0538-III
)
METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON ) CONSOLIDATED
COUNTY, ) **controlling case**
)
Respondent. )
______________________________________________________________________________
JAMES HAMMOND and )
TENNESSEE FIREARMS ASSOCIATION, )
INC., )
)
Petitioners, )
)
v. ) Case No. 23-0542-III
)
METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, )
)
Respondent. )
)
______________________________________________________________________________
RESPONSE OF CLATA RENEE BREWER TO METRO’S NOTICE OF FILING
DECLARATIONS AND THREE MOTIONS TO INTERVENE
______________________________________________________________________________
In her May 15, 2023 Response to Motion to Intervene of Covenant Church, Petitioner Clata
Renee Brewer clearly stated that the only exception to the Public Records Act relied upon by
Respondent Metropolitan Government of Nashville and Davidson County (“Metro”) was
Tennessee Rule of Criminal Procedure 16. On May 17, 2023, Metro stated in its Notice of Filing
Declarations with Status of Investigation that “there are also other exceptions to the Public Records
Act that apply to these records. These exceptions are not waived, and they will be briefed by the
Metropolitan Government prior to the show cause hearing.” Previously, however, in denying
numerous requests for public records in these consolidated cases, Metro relied upon only Rule 16.
For the reasons stated herein, Metro should not be allowed to assert additional exceptions.
Moreover, with the filing of the “Parent” request for intervention, it is obvious the putative
intervenors seek to assert additional exceptions and for that reason they should not be allowed to
intervene in this case.1
1. This Court’s Review should be limited to Rule 16.
In responding to a request under the Public Records Act, a records custodian, such as
Metro, is specifically required to have a response that “shall include the basis for the denial.” Tenn.
Code Ann. § 10-7-508(a)(2)(B)(ii) (emphasis added). The statute clearly does not allow the
custodian to provide “a” reason or “one” reason, but rather requires “the” reason. In all litigation
there is a time to “put up or shut up.” The expedited procedure for the Public Records Act and the
“shall” requirement cited above establish that this time comes for the requestor when it makes its
request, and for the custodian when it decides to make a denial of that request.
The records custodian must provide the complete reason for its failure to provide access
because of the very specialized and expedited procedure for judicial review in Public Records Act
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Moreover, none of the putative intervenors have met the basic requirements of Tennessee Rule
of Civil Procedure 24 to qualify for intervention, as more fully explained by plaintiff in the
consolidated Hammond case. Brewer completely agrees with the procedural deficiencies for
intervention that Hammond has addressed. Any consideration of intervention is clearly premature,
and in this Response Brewer is simply pointing out some of the substantive defects that would
prevent intervention even if the procedural defects did not preclude intervention.
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cases. Upon the filing of a petition for judicial review of a denial of access to open records, the
court shall “issue an order requiring the defendant or respondent party or parties to immediately
appear, and show cause, if they have any, why the petition should not be granted. A formal written
response to the petition shall not be required, and the generally applicable periods of filing such
response will not apply in the interest of expeditious hearings.” Tenn. Code Ann. § 10-7-505(b)
(emphasis added). Further, the statute authorizes the Court to conduct an in camera review of the
records at issue, id., which this Court has indicated it will do.
Accordingly, the initial denial with the reason constitutes what would otherwise be the
answer to a complaint in typical litigation to define the relevant issues. Otherwise, in addition to
imposing uncertainty and waste of time upon the petitioner, it would impose an enormous waste
of time upon the Court. At this time, the Court has begun, or it will soon begin, in camera review
of the documents Metro has begun producing. Yet, if Metro is allowed to continually assert
additional exceptions at unknown dates in the future, the Court will have no guidance as to what
should be searched for in its in camera review of the records. In other words, the Court could
conduct a thorough review of all of the records, searching for evidence of an ongoing criminal
investigation that might be subject to Rule 16, only to have Metro then claim there is some
completely unrelated exception the Court needs to look for when reviewing the records, thereby
requiring the Court to review the records yet again.
The burden imposed upon the Court by allowing the records custodian to willy-nilly insert
additional possible exceptions is monumental when one considers the number of possible
exceptions. When the Public Records Act was adopted in 1957, there were only two categories of
records exempted from disclosure. The Tennessean v. Metropolitan Government of Nashville and
Davidson County, 485 S.W.3d 857, 865 (Tenn. 2015). Before he became mayor of Nashville, Bill
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Purcell served in the General Assembly, and 31 years after the adoption of the Public Records Act,
he led a special study committee of the General Assembly which found that in 1988 there were 89
exceptions to the Act. (See Exhibit A, attached). Another 30 years after that, in 2018, at the request
of the General Assembly through the Lieutenant Governor and the Speaker of the House, the
Tennessee Office of Open Records Counsel conducted a survey and concluded there were then
538 exemptions. Tennessee Comptroller of the Treasurer, Office of Open Records Counsel,
Statutory Exceptions to the Tennessee Public Records Act (January 30, 2018), available at
https://comptroller.tn.gov/office-functions/open-records-counsel/open-meetings/exceptions-to-
the-tennessee-public-records-act.html. Since that time, the Open Records Counsel has continued
to update the list of exemptions because of the numerous exemptions enacted each year by the
General Assembly. See Tennessee Comptroller of the Treasurer, Office of Open Records Counsel,
Exceptions to the Tennessee Public Records Act, https://comptroller.tn.gov/office-functions/open-
records-counsel/open-meetings/exceptions-to-the-tennessee-public-records-act.html (last visited
May 18, 2023). The Open Records Counsel position is currently held by Mr. Seth May, and just
a few days ago he represented to the undersigned that the best possible count of exemptions to the
Open Records Act is 723. Therefore, it is simply unworkable to expect this Court to conduct an
in camera review when the records custodian does not specify the specific exemption that
allegedly provides a reason not to allow public access to particular records.
Accordingly, neither Metro nor any other party should be permitted to assert any other
reason for denial of access to records other than Tennessee Rule of Criminal Procedure 16.
Alternatively, if this Court allows any additional exceptions to be considered, Plaintiff does not
agree that any other party should be allowed to intervene in this case. The fallacy of allowing such
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intervention is demonstrated by the recent Motion to Intervene by the unnamed and unidentified
“Parents.”
2. Intervention is Not Appropriate
Although such hot topics as abortion and gun rights routinely occupy the news headlines
of our General Assembly, in fact, as shown by the many enactments affecting the public records
adopted every year since at least 1989, the Public Records Act is the most touched upon piece of
legislation in Tennessee by the General Assembly. It is for this reason our Supreme Court has
recognized that the legislature has occupied the field of creating exceptions to the Public Records
Act. Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007). In Schneider, the Court reversed
the Court of Appeals’ recognition of a new court-created exception because that court “failed to
recognize the significance of this Court’s prior decisions refusing to adopt ‘public policy’
exceptions to the Public Records Act.” Id. at 343. The Court emphatically stated that with respect
to the Public Records Act, “the General Assembly, not this Court, establishes the public policy of
Tennessee.” Id. at 344. The Court noted that the adoption of any exception to the Public Records
Act “is a question for the General Assembly.” Id.
None of the potential intervenors have specified any of the more than 700 exemptions to
the Public Records Act upon which they might rely. The Parents present a pure policy argument
that the Supreme Court has rejected when they state, “the Parents see no good that can come from
the release”. (Parents’ Brief at p. 2, filed May 17, 2023). As previously explained, it is not for this
Court to consider the pros and cons of public access to these public records. This debate has
already occurred in the General Assembly, and our Supreme Court has made it clear that policy is
not for the courts to consider.
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However, there is in fact enormous good that can come from the release of these public
records. Most significantly, release of these public records will very likely help prevent the killing
of other school children and other persons in this country. A May 17-18 2023 report on WZTV-
TV, channel 17, included an interview with John Lott, President of the Crime Prevention Research
Center, in which he clearly indicated that release of this information can be helpful to prevent
future such tragedies. See FOX17 WZTV-TV, Expert says delay to release Covenant School
shooter’s writings ‘extremely unusual’, https://fox17.com/news/local/nashvile-tennessee-
investigation-mass-shooting-gun-violence-expert-says-delay-to-release-covenant-school-
shooters-writings-extremely-unusual-middle-tn-green-hills-davdison-county-local-news# (last
accessed May 18, 2023).
The Parents’ brief is an obvious expression of anguish seeking sympathy. Brewer in no
way discounts the horrible tragedy that occurred at the Covenant School or in any way doubts the
enormous pain those associated with the school, as parents or otherwise, have and continue to
suffer. But surely they will experience even greater suffering if they obtain a denial of public
access that results in more school children being murdered.
Another important reason to allow immediate access to the requested public records is to
eliminate the divisive speculation that is presumably worse than the truth. There has already been
much speculative public discussion, some of which may be erroneous and detrimental to the
putative intervenors. An elected official in Franklin, Tennessee has asserted that this killing was
the result of a love triangle. See WSMV4 WSMV-TV, Franklin alderman claims Covenant School
shooter was part of love triangle, https://www.wsmv.com/2023/05/12/franklin-alderman-claims-
covenant-school-shooter-was-part-love-triangle/ (last accessed May 18, 2023). Although many
people may doubt this elected official’s assertion, with each passing day more and more people
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will believe that reason or some other false reason which is even more upsetting than the truth.
Since the Church, the School, and now the Parents are seeking to prevent public disclosure of these
public records, there is an increased likelihood more persons will believe there is something
sinister being covered up. This is simply human nature. As a former Chief Justice of the United
States Supreme Court stated, “People in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they are prohibited from observing.”
Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980).
The Parents’ brief is also premised on the naïve assumption that if these public records are
not released, then there will be less conversation and news coverage about the tragedy. To the
contrary, the longer the public is denied access to the records, the more this matter will be talked
about in the community. For example, this case and the related filings continue to make headlines
nationwide and even internationally. See, e.g., New York Post, 66 Tennessee Republicans call for
release of Audrey Hale’s manifesto: ‘Don’t understand the apprehension’,
https://nypost.com/2023/05/17/tn-gop-calls-for-release-of-nashville-shooters-manifesto/ (last
visited May 18, 2023); Newsweek, Nashville School Trying To Stop Release of Shooter Audrey
Hale’s Manifesto (last visited May 18, 2023); DailyMail, Unredacted manifesto of trans Nashville
shooter who killed six in rampage at Christian school is now in judge’s hands ahead of public
hearing over its release, https://www.dailymail.co.uk/news/article-12082139/Manifesto-
Nashville-shooter-killed-six-rampage-Christian-school-judges-hands.html (last visited May 18,
2023). Without access to the truth, that talk will likely continue to be, as it may have been in the
past, worse than the truth. And if the records are never released, then there will always be a cloud
of suspicion about the putative intervenors.
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Essentially, the putative intervenors want news coverage of this event to stop. Of course,
they cite no authority for this request because none exists. In fact, the continued coverage of this
event is what holds out the hope that progress can be made to lessen the occurrence of similar
events.
Conclusion
Brewer respectfully requests this Court to limit its review of Metro’s denial of access in
this case to whether Tennessee Rule of Civil Procedure 16 applies to the facts of this case.
Moreover, no motions to intervene should be granted.
Respectfully submitted,
/s/Douglas R. Pierce
Douglas R. Pierce, No. 010084
Hunter K. Yoches, No. 036267
KING & BALLOW
315 Union Street, Suite 1100
Nashville, TN 37201
Telephone: (615) 259-3456
[email protected]
[email protected]
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CERTIFICATE OF SERVICE
This is to certify that the foregoing Response Of Clata Renee Brewer To Metro’s Notice
Of Filing Declarations And Three Motions To Intervene was served on the following via email
and U.S. Mail this 19th day of May, 2023:
Lora Fox (
[email protected])
Cynthia Gross (
[email protected])
Phylinda Ramsey (
[email protected])
METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY
Metropolitan Courthouse
1 Public Square, Suite 108
Nashville, TN 37210
Counsel for Respondent
Metropolitan Government of Nashville and Davidson County
SCHULMAN, LEROY & BENNETT PC
3310 West End Avenue, Suite 460
Nashville, TN 37203
Counsel for Petitioners
James Hammond and Tennessee Firearms Association, Inc.
F. Laurens Brock (
[email protected] ADAMS AND REESE LLP
1600 West End Avenue, Suite 1400
Nashville, TN 37203
Counsel for Covenant Presbyterian Church
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Eric G. Osborne ([email protected])
William L. Harbison ([email protected])
Christopher S. Sabis ([email protected])
C. Dewey Branstetter ([email protected])
Ryan T. Holt ([email protected])
Micah N. Bradley ([email protected])
Frances W. Perkins ([email protected])
Hunter C. Branstetter ([email protected])
William D. Pugh ([email protected])
SHERRARD ROE VOIGT & HARBISON, PLC
150 Third Ave South, Suite 1100
Nashville, TN 37201
Counsel for the Covenant School Parents
Autumn L. Gentry (
[email protected])
DICKINSON WRIGHT PLLC
424 Church Street, Suite 800
Nashville, TN 37219
BAYDOUN & KNIGHT, PLLC
5141 Virginia Way, Suite 210
Brentwood, TN 37027
Counsel for The Covenant School
AMERICA FIRST LEGAL FOUNDATION
611 Pennsylvania Avenue, SE #231
Washington, DC 20003
Counsel for Michael Patrick Leahy and Star News Digital Media, Inc.
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Robb S. Harvey ([email protected])
Quynh-Anh D. Kibler ([email protected])
HOLLAND & KNIGHT LLP
511 Union Street, Suite 2700
Nashville, Tennessee 37219
Counsel for The Tennessean, Rachel Wegner, and Senator Todd Gardenhire
/s/Douglas R. Pierce
Douglas R. Pierce
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