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The Tennessee Court of Appeals correctly upheld a lower court decision last week that the records of the Tennessee Secondary School Athletic Association are open to the public.
The court affirmed that a non-government entity that acts as the "functional equivalent" of a government agency must play by the same rules as government agencies. This established legal principle is becoming more important to the public as more governmental functions are being outsourced to private entities.
The City Paper, a now-defunct Nashville weekly, sued the TSSAA in 2012 after the high school sports federation rejected a records request tied to financial aid improprieties at Montgomery Bell Academy. Specifically, the journalists sought a report prepared by MBA for the TSSAA, plus related records and correspondence.
The TSSAA argued that as a private nonprofit it did not have to comply with the Public Records Act. Even if the court ruled that it did have to follow the Public Records Act, the TSSAA's lawyers argued, the records sought fell under exemptions to the law.
The court rejected those arguments.
Formed in 1925, the TSSAA became a nonprofit corporation in 1967. The organization, made up of more than 400 member schools, oversees interscholastic sports statewide and puts on post-season championship tournaments. About 2 percent of its $5 million budget comes from member dues, while the rest is generated through contracts and tournament ticket sales.
Writing for the court, Judge Frank G. Clement Jr. pointed out these are duties that otherwise would have to be performed by the state Board of Education or another state agency. He noted that government agencies cannot sidestep the Public Records Act by delegating their responsibilities to private entities.
Also, the TSSAA's two governing bodies - the Legislative Council, which establishes the rules of the organization, and the Board of Control, which enforces those rules - are made up of principals, assistant principals or superintendents of member schools. Of the 18 representatives on the two boards, 17 are public school employees. TSSAA employees participate in the state employees' retirement plan.
Taken as a whole, the circumstances establish that the TSSAA functions as a government agency and is not a routine government contractor. Therefore, the court concluded, its records should be open to public scrutiny.
The functional equivalency doctrine has implications in other areas as well. It is the reason that Visit Knoxville, which spends city of Knoxville and Knox County tax dollars to promote tourism as required under state law, must open its records to any Tennessee resident. Charter schools, which are managed by private entities on behalf of public school systems, also have to make records - at least those that are not exempt because of student privacy laws - available to the public.
The TSSAA could appeal, but its case is weak. The organization clearly acts as a public agency, as the Appeals Court determined, and has a responsibility to make its records accessible to the public.