The Attorney General in a new opinion says that records in a school director search are open for public inspection, even if the records were obtained by a third party hired by a school board to conduct the search.
The entity might also be subject to the Open Meetings Act, depending on factors such as the circumstances of its involvement with the government body, its authority and its structure, the AG said.
State Sen. Mike Bell, R-Riceville, said he requested the opinion because some constituents were concerned about the transparency of the search to fill the Cleveland City School’s director position. The school board hired the Tennessee School Boards Association to conduct the search. It recommended five candidates from 19 who applied, but only the five names were made public.
Whether third parties, including but not limited to the Tennessee School Board Association and the Tennessee Organization of School Superintendents, hired by school boards to conduct searches for directors of schools, are subject to the Tennessee Open Meetings Act, Tenn. Code Ann. 8-44-101 – 108 and the Tennessee Public Records Act, Tenn. Code Ann. 10-7-501 – 516.
Attorney General Herbert H. Slatery III said yes to the public records act question, basing his opinion on a specific part of statute, and noted an appellate decision that raises the possibility that some third parties who are delegated official responsibilities may also be subject to the Open Meetings Act.
Slatery said the records were open based on T.C.A. 10-7-503 (f), which states:
[a]ll records, employment applications, credentials and similar documents obtained by any person in conjunction with an employment search for a director of schools or any chief public administrative officer shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. For the purposes of this subjection (f), the term “person” includes a natural person, corporation, firm, company, association or any other business entity.
Additionally, he said, “if the third party is one whose ‘origin and authority may be traced to state, city or county legislative action,’ then the meetings of the third party are subject to the Open Meetings Act.” Additionally, he said an appellate court held in 1998 in Souder v. Health Partners, Inc. that “subsidiaries to which municipal corporations have delegated their official responsibilities and authority are subject to the Open Meetings Act.”
While the statute confines the Open Meetings Act to a governing body and a public body, the Souder case raises the possibility that the Act may apply in certain circumstances to a third party to whom the public body or governing body has delegated its official responsibilities and authority. Whether there has been such a delegation that might trigger the requirements of the Act in any given circumstance will depend on the particular facts and the totality of the circumstances of the third party’s involvement, its organizational structure and origin, and its relationship with the governing body.