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State contractor must keep records open

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  1. Freedom of Information

    NMU         TENNESSEE         Freedom of Information         Sep 9, 2002    

State contractor must keep records open

  • The state Supreme Court ruled unanimously that a private contractor providing daycare services for the state must make its records available to the public under the state’s open records law because it is essentially performing government work.

The Supreme Court of Tennessee decided Sept. 5 that private state contractors who serve as the “functional equivalent” of a government agency are subject to that state’s public records act.

The judgment reversed a decision by a court of appeals and upheld the right of The Commercial Appeal, in Memphis, and The Tennessee Comptroller of the Treasury to gain access to records of the Cherokee Children & Family Services, which operates a daycare contract with the state’s Department of Human Services.

In a unanimous decision, the court held that even when “public duties have been delegated to an independent contractor,” the public should be given access to this otherwise private information because “the public’s fundamental right to scrutinize the performance of public services and the expenditures of public funds” should be preserved.

The court ruled that when a private entity’s “relationship with the government is so extensive” that it “serves as the functional equivalent of a governmental agency, the accountability created by public oversight should be preserved.”

The court also said that the Tennessee Public Records Act should be construed liberally in favor of “the fullest possible public access to public records.”

While noting the growing trend among state governments to contract out government services, the court held that when a private entity has “a relationship with the government that is so extensive that the entity serves as the functional equivalent of a governmental agency,” then its records must be subject to the public records act.

Whether a private company performs a government function and is subject to the government’s open records laws, depends on, among other things, “the level of government funding for the entity, the extent of government involvement with, regulation of, or control over the entity, and whether the entity was created by an act of the legislature or previously determined by law to be open to public access.”

Cherokee Children & Family Services worked exclusively for the government of Tennessee, which exercised a significant level of oversight and control over the company’s operations. The Court held that this was sufficient to subject the company to Tennessee’s Public Records Act.

“We are thrilled with the decision,” said Lucian Pera, lawyer for The Commercial Appeal, “and the folks at the paper are immensely gratified that the court put out a decision so favorable to access.”

(Memphis Publishing Co. et al. v. Cherokee Children & Family Services, Inc.; Media counsel: Armstrong Allen, Memphis, Tenn.) GS

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