The two sections of statute that define “public records” also identify who must provide access, and the legislature added another category in 2008 when it succinctly acknowledged a landmark 2002 state Supreme Court decision applying the law to certain private businesses and nonprofit entities.
The first section of the statute, T.C.A. § 10-7-503 (a)(1)(A)(i) defines public records as records, regardless of physical form or characteristics made or received pursuant to law or “in connection with the transaction of official business by any governmental entity.”
The Office of Open Records Counsel has defined “governmental entity or agency” to include, but not be limited to “the state, any political subdivision, agency, institution, county, municipality, city or sub-entity. Note, certain associations, non-profits, and private entities are also subject to the TPRA.”
T.C.A. § 10-7-503 (a)(2)(A) that requires such records to be open describes “all state, county and municipal records…” and states “those in charge of the records shall not refuse such right of inspection to any citizen.”
Private, non-government entities
The legislature added language in 2008 to apply the law to private or non-profit entities which provide public services:
A governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity.
T.C.A. § 10-7-503(a)(6)
That was a shorthand codification of the “functional equivalent” doctrine established in Memphis Publishing Co. v. Cherokee Children and Family Services (2002).
Cherokee, which had been contracted by the Department of Human Services to connect parents with publicly subsidized daycare, had refused a request by The Commercial Appeal (and oddly enough the state Comptroller’s office) for records of their operations.
The court found that the public records act “serves a crucial role in promoting accountability in government through public oversight of governmental activity” and added that Cherokee provided a service that traditionally was a government function. The determination of whether an entity falls under the “functional equivalent” doctrine hinges on “whether and to what extent the entity performs a public function.”
The Court said “we intend by our holding to ensure that a governmental agency cannot, intentionally or unintentionally, avoid its disclosure obligation under the act by contractually delegating its responsibilities to a private entity.”
Factors the Court said would be used to analyze who might be covered included “the totality of circumstances” but included four considerations:
- Whether and to what extent it provides a public or government function;
- The level of government funding;
- The extent of government’s involvement, regulation of or control over the entity; and
- Whether it was created by the legislature or had been found earlier to be open to public access.
Since the Cherokee decision in 2002, courts have applied the “functional equivalent doctrine” to groups like the TSSAA (Tennessee Secondary Schools Athletic Association), CCA (Corrections Corporation of America, a prison management firm), and a private firm that has a contract to manage Nashville’s Bridgestone Arena.
In the TSSAA case, the Court of Appeals quoted Cherokee:
The functional equivalent doctrine, however, “is not intended to allow public access to the records of every private entity which provides any specific, contracted-for services to governmental agencies. A private business does not open its records to public scrutiny merely by doing business with, or performing services on behalf of, state or municipal government. But when an entity assumes responsibility for providing public functions to such an extent that it becomes the functional equivalent of a governmental agency, the Tennessee Public Records Act guarantees that the entity is held accountable to the public for its performance of those functions.”
Others subject to the law
An inventory contained in training materials used by the OORC includes more entities whose activities fall under the TPRA:
- Search firm or any public or private entity hired in connection with search for director of schools or any chief administrative officer. T.C.A. 10-7-102(b)
- Regional airport authorities if either a governmental agency or a private entity operating as the “functional equivalent” of a governmental agency. Attorney General Opinion 2008-064.
- Records of some local economic development groups — private or quasi-public — are public records if they have received or qualified to receive state ECD grants.
The statute also includes:
The board of directors of any association or nonprofit corporation authorized by the laws of Tennessee that: Was established for the benefit of local government officials or counties, cities, towns or other local governments or as a municipal bond financing pool; Receives dues, service fees or any other income from local government officials or such local governments that constitute at least thirty percent (30%) of its total annual income; and Was authorized as of January 1, 1998, under state law to obtain coverage for its employees in the Tennessee consolidated retirement system.
T.C.A. § 8-44-102(b)(1)(E)(i)
T.C.A. § 10-7-503 (d)(1) contains the exemption. Those associations can remain exempt by providing an annual audit to the state comptroller.