Copyright and public records don’t mix

A recent court decision denying access to public records related to Nashville’s Covenant School massacre used a novel legal theory that could have wide-ranging implications for other public records requests.

Chancery Court Judge I’Ashea L. Myles’ decision prevented the release of the Covenant School shooter’s manifesto and other writings, artwork, and video to journalists at The Tennessean newspaper and others on the grounds that the release would violate federal copyright law. It’s the first decision in Tennessee concluding that copyright law trumps the state’s public records act.

As the United States faces a seemingly endless plague of mass shootings at homes, schools, grocery stores, and places of worship, some argue that it’s better to keep the vile rantings of the perpetrator a secret, while others maintain that public access to these records is necessary for government accountability and stopping future violence. News outlets should be free to make their own decisions on the matter, based on the judgment of editors, not judges.

But the copyright theory relied upon by the court in the Covenant School shooting case doesn’t hinge on anything unique to violent manifestos. It would apply equally to copyrightable records that have nothing to do with killings or criminal cases.

In fact, many public records that have important information about what the government is up to could be subject to copyright. Under this decision, they would be totally exempt from disclosure to the public and the press.

Take emails, for instance. Emails between government employees and people outside of government — obtained using public records requests — are often essential to news reports.

Journalists at the nonprofit research group U.S. Right to Know, for example, used public records laws to ask for emails between public employees and food and pesticide companies. Those emails revealed how companies like Monsanto and others have “aggressively recruited” academics at public universities to defend genetically modified foods or how Coca-Cola has tried to influence health officials.

But emails are also copyrightable under federal law. What if these large corporations could block our right to know about their attempts to sway the government and the public by claiming their emails with public officials are copyrighted and must be kept confidential? Under the recent Tennessee decision, it’s possible.

And what about emails and other written records by public officials themselves? While works created by the federal government are automatically in the public domain, that’s not the case in many states, where even government-created works are considered copyrightable.

State public records laws should be considered authorization to copy and disclose government-created works, even if they’re copyrighted. But we’ve seen how bad-faith actors already misuse copyright law to try to block reporting they dislike. It’s not hard to imagine a government employee with something to hide trying to deny a records request for a government record like an internal memo or police bodycam footage based on copyright. Even if the employee ultimately loses, the cost and delay they can impose by raising copyright as an objection to releasing records will inhibit reporting.

Tennessee isn’t alone in holding that copyright law trumps state public records law; the court’s decision in the Covenant School case cites cases from a few other states. But other courts have reached the opposite conclusion.

Under the federal Freedom of Information Act, for instance, courts have held that copyrighted works aren’t automatically exempt from disclosure. Other state courts have relied on copyright’s protection for “fair use” to allow disclosure of public records that may also be copyrighted — an argument that Myles refused to even consider in her recent decision.

Myles’ decision is sure to be appealed, and the higher courts in Tennessee should take note of these decisions, as well as the potentially disastrous consequences of letting copyright defeat public records laws. Copyright makes writings and other works private property, but public records belong to the public. The two simply don’t mix.