Tennessee nonprofit found subject to public records laws

A Tennessee court has ruled that a private nonprofit athletic association is the equivalent of a government agency, making it subject to public records laws.

The (Nashville) City Paper filed a petition in the Chancery Court for Davidson County seeking access to information from the Tennessee Secondary School Athletic Association, which had previously denied the newspaper’s request, arguing that it is not a public government entity.

Chancellor Claudia Bonnyman ruled from the bench Friday that under Tennessee’s functional equivalency test, the TSSAA is subject to the state’s public records law and must process the newspaper's request for details of possible bylaws violations by member schools.

Many private organizations are taking on public functions or using tax dollars while not being subject to public records laws, both in Tennessee and elsewhere. John Williams, The City Paper's attorney, said the functional equivalency test must be applied to these quasi-governmental agencies to figure out what governmental powers or protections these organizations have.

“This case is unlike other cases that have been decided because this was a private entity that performed a regulatory function, and I don’t know of any other cases involving private entities that do that,” said Williams. “This could potentially be a precedent for other private entities that regulate.”

The 87-year-old association was officially recognized by the state Board of Education as the entity that regulates the athletic activities of more than 400 Tennessee secondary schools through detailed bylaws, rules and standards. The majority of TSSAA’s legislative and administrative leaders are employees of public high schools, and revenue often comes from public funds.

Williams said that in 2001 the Tennessee Supreme Court established the three-part functional equivalency test in Memphis Publishing v. Cherokee Children & Family Services, which governs whether private entities performing government functions are considered government agencies.

“Since that decision, there have been a number of cases that have involved different types of nonprofit entities performing government functions of one sort or another,” Williams said. “This is one that falls in the general framework of the functional equivalency doctrine.”

In the newspaper’s petition, Williams argued that TSSAA should be considered the functional equivalent of a governmental body because it is paid public funds, is recognized by the Board of Education and has many school officials in its governing structure.

“The public has a strong interest in interscholastic athletic competition between high schools and in how that competition is regulated by the TSSAA,” the petition stated.

The City Paper was investigating Montgomery Bell Academy, a private school and member of the TSSAA. The school was under investigation by the TSSAA for offering financial incentives to attract athletes to their school, which violates the organization’s bylaws. The newspaper requested from TSSAA a report from Montgomery Bell regarding financial contributions to students and families of the school and all correspondence between the TSSAA and member schools regarding violations of financial aid rules.

Related Reporters Committee resources:

· Tennessee – Open Government Guide: a. Bodies receiving public funds or benefits.

· NM&L: Private companies performing government work should be subject to open records law