On lawsuit to force open records, crime commission says: We don’t have to

The Memphis Shelby County Crime Commission’s short answer to a lawsuit asking a judge to force them to open their records is: We don’t have to.

“The Crime Commission is a non-profit corporation funded privately and with no governmental authority. It is not subject to the public records act,” according to Linda Russell, vice president of communication and development at the commission.

However, a lawsuit filed by Wendi C. Thomas, founder of MLK50: Justice Through Journalism and The Marshall Project, a website covering criminal justice, says the commission is very much involved local law enforcement and therefore subject to public inquiry. Both nonprofit news outlets repeatedly have been blocked in their efforts to gain more information about how the commission works and who is involved.

“The MSCC is the functional equivalent of a government agency,” the petition says. “Its records are, therefore, public records subject to the access requirements” of Tennessee’s Public Records Act.

At least one member of both the Shelby County Board and the crime commission said the nonprofit should open its records like any entity influencing public policy:

“As chair of law enforcement, courts and corrections for the Shelby County Commission, I am appointed to the Memphis Shelby Crime Commission,” said District 7 Commissioner Tami Sawyer, who urged Bill Gibbons, crime commission president, “to be swift and transparent in response to the lawsuit.”

“The work of criminal justice reform requires transparency at the highest levels, and if the crime commission truly exists for the benefit of the community, then there should be no opposition to these requests,” said Sawyer, who has requested to see donor lists.

How is the commission involved in local policing?

Well, consider Memphis Mayor Jim Strickland’s announcement two years ago that the crime commission would provide $6.1 million to the city for police officer retention bonuses over four years and recruitment referral bonuses.

The commission’s 50-member board links criminal justice and other top public officials with business leaders, sets long-term goals for reducing crime in Memphis and Shelby County, and raises private money to support its Operation: Safe Community initiative.

Nonprofits — unlike government agencies — are generally not required by law to share financial records or other internal documents. The lawsuit argues the crime commission, which in its most recent annual report listed 24 of its 50 board members as public-sector employees, is not protected from public scrutiny.

The crime commission was formed as a nonprofit organization in 1997 and is led by Gibbons, a former Shelby County district attorney, and former state safety and homeland security commissioner.

Lawyers for the Reporters Committee for Freedom of the Press and the Memphis law firm Adams and Reese LLP argue the crime commission, whose board includes the mayor, the district attorney and other public officials, is the “functional equivalent” of a government agency and thus subject to public disclosure laws.

“The public has a right to know how the commission affects the lives of people in Memphis and the surrounding communities, and we hope this action will shed light on the governmental functions the commission performs,” said Katie Townsend, the legal director of the Reporters Committee.

The crime commission maintains it is fully independent of the government and thus entitled to keep its activities secret. After initially refusing to answer any questions about donations, the commission released in October what officials said was a list of Memphis-based companies and nonprofits, including FedEx and International Paper, which contributed toward the $6.1 million police retention grant.

Prior to releasing the names, Gibbons, who is also executive director of the University of Memphis Public Safety Institute, told The Marshall Project in a May interview: “Every donor to this has requested to remain anonymous because they don’t want to be perceived, in any way, as currying favor with the police. And no, I am not going to tell you who they are.”

The commission has denied multiple records requests filed by Memphis-based Thomas on behalf of The Marshall Project for details of the donations as well as requests for a copy of a commission-funded analysis of the Memphis Police Department, overseen by former New York Police Commissioner Raymond W. Kelly. He is noted for his stop-and-frisk policing approach, which was struck down in court and found to be applied unevenly across racial lines.

The Marshall Project has also requested the commission’s past tax filings, written communications between commission staff, business leaders and elected officials and internal memos that relate to criminal justice legislation and policing.

The Marshall Project is an independent nonprofit news outlet, formed in 2014, covering criminal justice and is lead by editor-in-chief Bill Keller, former executive editor of The New York Times. Said Thomas, editor and publisher of MLK50: Justice Through Journalism: “As a longtime journalist in Memphis, I understand the importance of open records to accountability journalism.

“I am glad to help The Marshall Project pursue this story by filing public records requests and assisting with the reporting. Open records are in the best interest of a democratic society,” Thomas said. “The lawsuit filed today is meant to benefit all journalists and by extension, the public.”

This story is brought to you by MLK50: Justice Through Journalism, a nonprofit reporting project on economic justice in Memphis. Support independent journalism by making a tax-deductible donation today. MLK50 is also supported by the Surdna Foundation and Community Change.