As the trial of three former Memphis police officers charged with murdering Tyre Nichols resumed Monday, a less-visible court proceeding with major implications for officer misconduct got under way just blocks away.
In that case, Chancery Court Special Judge James R. Newsom III said from the bench he believes the public should have access to at least some records in a closely guarded MPD program designed to identify and correct negative officer behavior before it erupts into larger problems.
“This … has been a difficult issue for the court to confront,’’ Newsom said, finding that some of the records must remain sealed.
At issue is a public access lawsuit filed by an attorney for the Reporters Committee for Freedom of the Press on behalf of a Memphis journalist seeking internal Memphis Police Department records involving three former officers who made news in recent years for controversial interactions with citizens.
The records in question involve MPD’s Performance Enhancement Program, or PEP, a “non-disciplinary” early intervention system that offers “coaching, training, and professional development” to assist officers “in order to provide the highest level of service and satisfaction to the public.”
The city of Memphis contends PEP is an Employee Assistance Program that involves private health information and other sensitive details that should not be disclosed to the public.
Judge Newsom agreed with the city’s attorneys to a point but found that aspects of PEP go beyond the parameters of an Employee Assistance Program as defined in state statutes. A traditional Employee Assistance Program, or EAP, involves matters such as behavioral health and substance abuse treatment.
But remedies in PEP include matters such as remedial driving or firearms training, reassignment, anger management, cultural awareness and conflict resolution training, focused training on communication skills, “critical incident diffusing”, “verbal judo”, defensive tactics and “tactical response to critical incidents.”
“For whatever reason … the Memphis Police Department’s Performance Enhancement Program does not mirror the statute’s language and takes (in) a number of subjects outside of the statutory definition of (an) Employee Assistance Program,’’ Newsom said.
“It would behoove the city to conform its EAP posture to that of the state statute going forward,’’ Newsom told the city’s outside attorneys, Jennie Silk and Bruce McMullen. “I’m not ordering you to do that. I’m just trying to keep you out of trouble, if I can.”
Newsom did not issue a written order but directed attorneys of both parties to get together to work out language for a proposed order and report back in three weeks.
Based on the comments during the roughly 90-minute hearing, that may be a difficult task.
The attorney deliberations will revolve around an internal MPD document called a Performance Improvement Plan, and also known as an Action Plan. A journalist’s suit, filed in April 2022, seeks any and all Action Plans of three officers: Colin Berryhill, who resigned in 2020 amid an internal excessive force investigation; Eric Kelly, who retired in 2019 amid an investigation into a sexual relationship he had with a murder defendant; and Justin Vazeii, who retired earlier this year with a disability pension. Vazeii had been the focus of several citizen complaints and once shot a Memphis teenager in a non-fatal encounter that was ruled justifiable.
MPD assigns an Action Plan when an officer is enrolled in PEP, typically after his or her behavior has been flagged by PEP’s electronic monitoring system. Thresholds for referral to PEP include four use-of-force incidents within three months, two firearms discharges within 18 months, and four vehicle pursuits within 12 months, among others.
The Action Plan form includes a series of boxes to be checked indicating the selected intervention for an officer. Options include reassignment, additional training, counseling, a fitness-for-duty determination, behavioral health treatment and referral to the city’s internal EAP program or its third-party vendor, CONCERN.
Silk argued at one point during the hearing that all Action Plans should remain exempt from disclosure, suggesting “a better way” to resolve the dispute might involve simply releasing training records. “We wouldn’t even have an argument on training records,’’ she said.
Reporters Committee attorney Paul McAdoo countered that the city could redact sensitive details from any Action Plan, but Silk took issue with that, too. Part of her concern focuses on the fact that an Action Plan can include multiple interventions including exempt remedies such as behavioral health treatment and releasable ones like remedial driving training.
“What if we tomorrow wake up with an open records request for every single Performance Action Plan that we have?’’ she asked. “We’re going to have to go through and figure out for each one, you know, which one qualifies (for release to the public) and which one doesn’t qualify.’’
And if sensitive categories are redacted, such as psychological treatment, a reader could then infer that the officer had received such a referral, she said.
McAdoo suggested a workaround in which sensitive categories are redacted uniformly every time an Action Plan is released to the public whether an officer received such a referral or not.
Judge Newsom agreed the matter is tricky, referring to it at one point as a “taxidermy.”
“I don’t find that there has been willfulness on the part of the city in terms of not responding to the public records request in such a way as to say, ‘Well, here they are, come get them,’ ’’ he said. “It is a difficult issue.’’
In a related but separate case earlier this year, however, city officials failed to release performance audit reports that are required to measure PEP’s effectiveness.
MPD’s policy and procedures manual mandates audits of PEP every six months to verify accuracy of data and evaluate “the outcomes of supervisory interventions and the quality of supervisory reviews.’’
A reporter asked for the audit reports in December 2020 in a request filed in accordance with the Tennessee Public Records Act and then filed suit in June 2023 when the city still had not filled the request. The city never denied the records request, but sent 41 separate updates saying officials needed more time to retrieve, review or redact the records.
In settling the matter in January, the city agreed to pay $7,420 to cover legal fees and court costs incurred in bringing the suit. Even then, the city released only a series of PEP annual reports documenting the number of officers referred to PEP and other statistical details, but not the audit reports.
A reporter sent an email this month asking if MPD is conducting the audits, but mayoral spokesperson Penelope Huston said officials would not comment, citing the ongoing public records lawsuit before Judge Newsom.
The outcome of that matter now hinges on deliberations between the city and Reporters Committee attorney McAdoo.
“It sounds like we have to talk,’’ McAdoo told the court as the hearing concluded Monday. “We have to try to figure out if we can come to some sort of agreement on the production of any potential records for these three individuals.”
