TSSAA seeks carve-out from Tennessee Public Records Act

The Tennessee Secondary School Athletic Association is asking the Legislature on Tuesday to close records that in the past were used to expose possible cheating in recruiting high school athletes.  It appears the people who regulate athletics for thousands of Tennessee youth want to be able to hide what they do and don’t do.

The TSSAA, until last year, did not believe it was subject to the Tennessee Public Records Act.

But a trial court and the Court of Appeals in Nashville courts affirmed that it is.

Now a proposal in the Legislature, which is scheduled for the Senate State and Local Committee on Tuesday, seeks to statutorily relieve them of complying with the Tennessee Public Records Act, something its lawyers could not convince the justice system to do.

The issue came up when The City Paper in Nashville, owned by SouthComm Inc., filed a lawsuit after the TSSAA refused to turn over records from an investigation into tuition and recruiting violations concerning student athletes.

The media company prevailed at the trial court, and after months of arguments, the appellate court affirmed the ruling and said that TSSAA served as the “functional equivalent” of government. As such, it is subject to the same public scrutiny provided through the open records act as other state agencies.

The functional equivalent doctrine was established in Tennessee in 2002 in a case out of Memphis involving an agency that received millions in state dollars to screen low-income children for government-subsidized day care and connect them with services.

Tennessee Supreme Court Justice Adolpho A. Birch Jr. explained the reasoning when he wrote the opinion:

“…the public’s fundamental right to scrutinize the performance of public services and the expenditure of public funds should not be subverted by government or by private entity merely because public duties have been delegated to an independent contractor. When a private entity’s relationship with the government is so extensive that the entity serves as the functional equivalent of a governmental agency, the accountability created by public oversight should be preserved.”

Since then, a handful of other agencies have met the rather significant test to be deemed “functional equivalents,” the most notable, Corrections Corporation of America, which houses prisoners for state and local governments.

The TSSAA tried to appeal to the Tennessee Supreme Court, which declined to hear the case.

There are many reasons for the TSSAA’s records to remain available for public inspection.

One of the most obvious is that the vast majority of TSSAA’s $5 million budget comes from gate receipts and contracts at tournament games held in public arenas. The trial court judge noted in her ruling that this is money that “local schools would be collecting” if TSSAA were not.

But beyond revenue, the TSSAA exerts considerable power over schools, affecting athletes and families. They can issue sanctions on schools, and fines. They make the rules that govern recruiting athletes. They decide who plays in what division. And they even make policies and track issues regarding safety, such how to deal with youth concussions.

Court of Appeals Judge Frank G. Clement pointed out in his opinion that the State Board of Education had formally designated the TSSAA as the coordinator and supervisor of such regulations — making it clear that the Legislature intended for it to serve that necessary government function related to interscholastic sports.

Furthermore, the governing boards of TSSAA who write the rules and decide how to enforce them are made up of principals, assistant principals or superintendents, mostly from public schools.

The courts spent considerable time reviewing extensive arguments from TSSAA on why it shouldn’t be subject to the public records law. The court did not make its decision lightly when considering all the issues.

If the Legislature decides to essentially remove that public oversight wholesale from one agency, we might expect others who have met the rigorous test for “functional equivalence” to do the same.

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