Judges block access to Vanderbilt rape case records

The Tennessee Court of Appeals has denied access to records related to a Vanderbilt University rape case in which four former football players await a November trial.

The three-judge panel ruled Tuesday that records sought by The Tennessean and a media coalition should not be made public because they are part of a continuing police investigation.

At issue during oral arguments in June was how the state's laws on open records, fair trials and victims' privacy rights intersect as cases move through the courts.

"We are considering an appeal," said Maria De Varenne, The Tennessean's news director.

In its ruling, the appellate judges focused on the rules of criminal procedure, which can keep police materials secret.

"The fact that the police investigation and criminal prosecution are ongoing is a significant factor in our disposition of this case," wrote Judges Richard G. Dinkins and Frank G. Clement.

Metro Law Director Saul Solomon praised the decision.

"We believe the ruling is the best for the pursuit of justice by all parties involved," he said.

After being denied case information in the fall of 2013, a media coalition led by The Tennessean sued for access to records created by nongovernmental entities in the wake of what police said was a June 23 rape of an unconscious female student inside a Vanderbilt dorm. Those materials include text messages between players and coaches.

Slippery slope

Beyond the Vanderbilt case, the ruling could have unintended consequences for public understanding of the work done by police, said Deborah Fisher, executive director for the Tennessee Coalition for Open Government.

"The court has set the stage to let law enforcement decide on its own what the public can and cannot know," Fisher said. "This court's interpretation can make it possible for police to withhold information that a crime has even occurred. We don't think such expansion of police power is consistent with the Tennessee Constitution, nor what the legislature intended with the Tennessee Public Records Act."

The decision reverses part of an earlier ruling by Davidson County Chancellor Russell T. Perkins, who had found that some records given to police should be made available. Despite his finding, Perkins also stopped short of releasing files because of other outstanding questions that went before the appeals court.

In a brief dissent, Judge W. Neal McBrayer agreed the records should not be made public but said he would have preferred that further arguments take place in Perkins' court.

"We're disappointed with the result, which we feel undercuts the expansive nature of the Public Records Act," said Robb Harvey, attorney for the media.

The criminal case is set for trial on Nov. 3.

Brandon Vandenburg, of Indio, Calif.; Cory Batey, of Nashville; Brandon Eric Banks, of Brandywine, Md.; and Jaborian McKenzie, of Woodville, Miss., are each charged with five counts of aggravated rape and two counts of aggravated sexual battery.

Vandenburg also is charged with one count of unlawful photography and tampering with evidence.

All four have pleaded not guilty and are free on bonds ranging from $50,000 to $350,000.

Reach Tony Gonzalez at 615-259-8089 and on Twitter @tgonzalez.