Williamson County mother files public records suit against Tennessee School Boards Association

A Williamson County mother, represented by the Beacon Center of Tennessee, has filed a public records lawsuit against the Tennessee School Boards Association after being denied access to the association’s records.

The lawsuit, Marren v. Tennessee School Boards Association, claims that the association is the “functional equivalent” of a government entity under the functional equivalent doctrine established by the Tennessee Supreme Court, and thus its records are subject to the Public Records Act.

The school board association, in denying public records requests from Karrie Marren, claimed it was “a private, nonprofit organization” and was not subject to the Tennessee Public Records Act.

Marren had requested:

  • TSBA’s training materials for school boards;
  • “Any and all communications with legislators, school board members, superintendents and other elected or public officials about your 2018 and 2019 Legislative Agendas;” and
  • “Any and all documents specifically pertaining to TSBA’s position statements on governance (particularly TSBA’s desire to ‘reduce state education law for the purpose of eliminating unconstitutional, conflicting, redundant, and unnecessary statutes), and allocation of public funds (particularly advocacy supporting the idea ‘that funds raised by general taxation for educational purposes should be administered by public officials and should not be used to support privately operated schools through tuition tax credits, vouchers, or block grants’).”

Functional equivalent doctrine established in 2002

The functional equivalent doctrine in Tennessee was established in 2002 by the Supreme Court in Memphis Publishing Company v. Cherokee Children and Family Services.

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 in Memphis for records of their operations.

In finding that Cherokee was subject to the Public Records Act, the Court said 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 determined.

Factors the Court said would be used to analyze who might be covered included “the totality of circumstances” but included four considerations:

  1. Whether and to what extent it provides a public or government function;
  2. The level of government funding;
  3. The extent of government’s involvement, regulation of or control over the entity; and
  4. 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.

Suit argues School Boards Association is subject to Public Records Act

In this case, Marren argues that TSBA is the functional equivalent of government because of:

  • The public service it performs;
  • Its significant amount of public funding;
  • Its legal recognition, board composition and level of state control; and
  • Its designation as a “political subdivision” and its ability to participate as an employer in the state’s retirement plan.

The case was assigned to Davidson County Chancellor Patricia Head Moskal.

Braden Boucek, attorney with the Beacon Center, is representing Marren in the case. (Boucek is on the board of directors for Tennessee Coalition for Open Government.)

While the case only deals with the Tennessee School Boards Association, its significance could reach much further. Several government associations exist that do the same type of work as TSBA for other types of government entities, such as for municipalities, county governments, public utilities and public hospitals.

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