No comma? No investigative records, TN AG says

A missing comma means city councils do not have power to subpoena investigative records of the Tennessee Bureau of Investigation, according to a recent opinion issued by the Tennessee Attorney General.

Grammar and punctuation gurus get ready.

According to Attorney General Herbert Slatery's Aug. 25 opinion, a city council cannot request the results of a TBI investigation because of a law that says those records should be released "only in compliance with a subpoena or an order of a court of record."

Slatery's opinion said because there is no comma separating "subpoena" and "order," both are antecedent to the phrase "of a court of record." Thus, "of a court of record" applies to both "subpoena" and "order." If there was a comma, the opinion said, then "of a court of record" would only apply to "order."

For the not-grammatically inclined: Only judges can order release of TBI records.

The decision keeps the already locked-down records locked down. But it comes amid growing concern among legislators about whether those records, especially when they are related to police using deadly force, should be subject to public review.

State Rep. Antonio Parkinson, D-Memphis, said he asked the attorney general to weigh in because of ongoing discussions about how to balance transparency and investigative needs, especially in high-profile cases that have occurred in Memphis and others around the nation.

"Especially in cases of officer shootings, people have the right to know what happened," he said. "I do also understand the need to make sure the investigations are not tainted, and that the information is not put out there too early."

In Tennessee, large police agencies — including those in Memphis and Nashville — for the most part investigate their own officers when deadly force is used. But the district attorney in Memphis called on TBI to investigate the July shooting of 19-year-old Darrius Stewart, citing a racial angle, according to media reports. Stewart was black. The officer who shot him, Connor Schilling, 26, was white.

Don't expect city council members to express outrage about the opinion tying their hands. Turns out, that subpoena authority is rarely used.

Josh DeVine, spokesman for TBI, said according to the staff in the TBI's legal department, the agency has never received a subpoena from a city council. Nashville's charter gives the Metro Council and other city officials authority to subpoena people and documents in investigations. But council attorney Jon Cooper said that action has been threatened but never used.

Read the Attorney General opinion here.

Reach Stacey Barchenger at 615-726-8968 or on Twitter @sbarchenger.