FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which PATRICIA J. COTTRELL, P.J., M.S., and RICHARD H. DINKINS, J., joined.
The principal issue is whether an association that governs and coordinates interscholastic athletic competition of substantially all public and private secondary schools in Tennessee is the functional equivalent of a government agency for purposes of the Tennessee Public Records Act. Two reporters and their newspaper filed this action pursuant to Tenn.Code Ann. § 10-7-505 to obtain records from the Tennessee Secondary School Athletic Association regarding the enforcement of its bylaws on member schools. The chancery court held that the association was the functional equivalent of a government agency; therefore, it was subject to the Tennessee Public Records Act, codified at Tenn.Code Ann. § 10-7-503 et seq. The court also ordered it to produce the records at issue, subject to the redaction of students' names. We affirm.
The TSSAA performs two basic functions. it establishes bylaws or "rules" for interscholastic sports competition and enforces those rules.
The member schools elect representatives to comprise the governing bodies of the association, which includes a Legislative Council that writes the bylaws and a Board of Control that enforces the bylaws. The members of each body must be either principals, assistant principals, or superintendents of member schools.
The TSSAA bylaw that gave rise to the events at issue is the "financial-aid rule," which requires parents of an interscholastic student to pay the tuition at a school where tuition is charged (private schools) for the student to be eligible to compete in TSSAA competition. Further, any financial aid a student-athlete receives must be based solely on need.
In the spring of 2011, Montgomery Bell Academy ("MBA"), a private school in Nashville, Tennessee, and a member of the TSSAA, removed its head football coach from its coaching staff and voluntarily commenced an internal investigation of alleged improprieties in the conduct of its interscholastic athletic program. The matters at issue pertained to the provision of financial aid to student-athletes that may have violated TSSAA bylaws.
Upon learning of alleged improprieties at MBA, the TSSAA retained counsel to conduct its own investigation to determine whether MBA violated TSSAA bylaws. During its investigation, TSSAA's counsel submitted a request for MBA to provide the report resulting from MBA's internal investigation; MBA produced the report to the TSSAA.
In August 2011, The City Paper, a Nashville weekly paper published by City Press Communications, LLC ("City Press"), submitted a request pursuant to the Tennessee Public Records Act ("Public Records Act") to the executive director of the TSSAA to inspect records related to the TSSAA's investigation of MBA. The first request was submitted by senior writer Ken Whitehouse on August 22, 2011; he received a reply from TSSAA's counsel but no documents. On January 9, 2012, the editor, Steve Cavendish, submitted a request pursuant to Tenn.Code Ann. §§ 10-7-503 to 10-7-516 to view and copy the following records in the possession of the TSSAA:
The TSSAA responded to Mr. Cavendish's letter but again provided no documents. On February 15, 2012, City Press, Mr. Whitehouse, and Mr. Cavendish filed this action to compel the TSSAA to make the documents available for inspection and copying. Plaintiffs contended the documents were "public records" as defined in Tenn.Code Ann. § 10-7-503(a)(1)(A) and "open for personal inspection by any citizen of [Tennessee]" under Tenn.Code Ann. § 10-7-503(a)(2)(A) because the TSSAA was the "functional equivalent" of a governmental entity for numerous reasons, including but not limited to:
After discovery, including depositions, the parties filed cross motions for summary judgment. The trial court granted City Press's motion for summary judgment upon the determination that the TSSAA was the functional equivalent of a government agency.
The TSSAA appeals, contending the trial court erred in finding that the TSSAA is the functional equivalent of a government agency. Alternatively, it contends that certain state and federal exemptions apply to protect the documents sought by City Press.
The determination of whether the Tennessee Public Records Act applies to the records of the TSSAA is a question of law to be determined by the totality of the circumstances. Memphis Publ'g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 74, 79 (Tenn.2002). This court determines questions of law de novo, without any presumption of correctness accorded to the trial court's decision. Id. at 74. In interpreting the Public Records Act, we must "interpret the terms of the Act liberally to enforce the public interest in open access to the records of state, county, and municipal governmental entities." Id.
The Public Records Act serves to promote accountability in government through public oversight of the government's activities, Cherokee, 87 S.W.3d at 74, and provides in pertinent part that "[a]ll state, county and municipal records
Id.
When deciding whether a private entity is the functional equivalent of a governmental agency, our courts look to the totality of the circumstances in each case; this is because no single factor is dispositive. Cherokee, 87 S.W.3d at 79. Factors that may be relevant to the functional equivalent analysis include, but are not limited to, "(1) the level of government funding of the entity; (2) the extent of government involvement with, regulation of, or control over the entity; and (3) whether the entity was created by an act of the legislature or previously determined by law to be open to public access." Id.
Nevertheless, the cornerstone of the functional equivalent analysis is whether and to what extent the entity performs a governmental or public function; this is of the utmost importance because "a governmental agency cannot, intentionally or unintentionally, avoid its disclosure obligations under the Act by contractually delegating its responsibilities to a private entity." Id.
The first factor to consider is the level of government funding of the entity. The TSSAA's annual budget exceeded $5,000,000 in 2010 and 2011, the two years preceding the hearing in this case. Only 2% of TSSAA's revenue comes from the annual dues paid by member schools, while the vast majority of funding comes from contracts and gate receipts at tournament games, many of which are held in public arenas. The trial court found that if the TSSAA did not collect revenue from these tournament games, "the local schools would be collecting the money and spending the money." The trial court concluded that the tournament revenue "in a way is government funding, because it does come from the educational component of the Department of Education that is the athletic program."
Although the TSSAA does not directly receive "government funding," the TSSAA is the only athletic association the Tennessee State Board of Education has officially recognized and designated as "the organization to supervise and regulate the athletic activities in which the public junior and senior high schools of Tennessee participate on an interscholastic basis." See Tenn. Bd. of Educ. Rule 0520-1-2-.26 (1972) (later moved to Rule Tenn. Comp. R. & Regs. 0520-1-02-.08). It is also the only athletic association whose "rules and regulations" have been expressly approved by the State Board of Education. Moreover, the State Board of Education has recognized the role of the TSSAA in coordinating interscholastic athletic competition and, additionally, expressly authorized the public schools of the state to voluntarily maintain membership in the TSSAA. See Tenn. Comp. R. & Regs. 0520-01-02.08(1). For the foregoing reasons, we find the evidence does not preponderate against the trial court's finding that revenues from the various championship tournaments, which generate millions, constitute indirect government funding.
The second factor to consider is the extent of government involvement with, regulation of, or control over the private entity. The trial court found that the TSSAA's decision-making authorities consisted of public officials, including public school principals and representatives of public entities, creating substantial government involvement and control.
The two primary governing bodies of the TSSAA are the Legislative Council and the Board of Control. The bylaws state the members of both must be school principals, assistant principals or superintendents. Administrators from public or private schools are eligible to run for election to either body; however, seventeen of the eighteen members of these two governing bodies are public employees.
The Legislative Council writes and recommends revisions to the bylaws, which are the "rules" by which the member schools agree to compete with one another in the various sports. It has nine members; eight of the nine members were employees of public schools at the time of the hearing. The Board of Control is a separate representative group of nine administrators who enforce the bylaws and control all athletic contests in which member schools participate; all nine members of the Board of Control were employees of public schools at the time of the hearing.
In addition, several organizations, including the Tennessee Board of Education and Tennessee Department of Education, appoint ex officio representatives of the Legislative Council and the Board of Control. Other organizations that appoint ex officio representatives include the Tennessee School Boards Association, Tennessee Organization of School Superintendents, Tennessee Athletic Coaches Association, Tennessee High School Athletic Administrators Association, and the Tennessee Association of Independent Schools. However, none of these ex officio representatives has a vote on any matter coming before the Legislative Council or Board of Control.
The trial court concluded that "because the principals are involved and help make decisions and they are employees of the
As noted above, the trial court found substantial governmental control existed. For similar reasons, the United States Supreme Court found the TSSAA to be a state actor for constitutional purposes under the Fourteenth Amendment. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). The Court found that the TSSAA "acts through [public school] representatives, draws its officers from [public schools], is largely funded by their dues and income received in their stead, and has historically been seen to regulate in lieu of the State Board of Education's exercise of its own authority." Id. at 290-91, 121 S.Ct. 924. The Court additionally held the TSSAA's "regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association's acts in any other way." Id. at 291, 121 S.Ct. 924.
For the foregoing reasons, the record fully supports the trial court's finding of substantial government involvement with and control of the TSSAA.
The third factor is whether the entity was created by a legislative act or previously determined to be subject to the Public Records Act. The TSSAA was neither created by a legislative act nor has it been subject to the Public Records Act.
We now turn our attention to the cornerstone of the functional equivalent analysis: whether and to what extent the TSSAA performs a governmental or public function. As the court noted in Cherokee, this is of the utmost importance because "a governmental agency cannot, intentionally or unintentionally, avoid its disclosure obligations under the Act by contractually delegating its responsibilities to a private entity." Cherokee, 87 S.W.3d at 79.
The trial court found that education is a government function because the Department of Education has "the function of regulating and overseeing the competitive athletic activities of the public schools." The trial court also determined that if the TSSAA was not performing this regulatory function, then the State Board of Education would be supervising and regulating the athletic activities.
The TSSAA attempts to deflect attention from the very important public service
However, the historical relationship between the Board of Education and the TSSAA, as reflected in the Board's rules and regulations, makes it clear that the Board of Education viewed athletic activities in public schools to be one of its functions; otherwise, it would have had no reason, or right, to "designate" the TSSAA as "the organization to supervise and regulate the athletic activities in which the public junior and senior high schools of Tennessee participate on an interscholastic basis." See Tenn. Bd. of Educ, Administrative Rules and Regulations, Rule 0520-1-2-.26 (1972) (later moved to Tenn. Comp. R. & Regs. Rule 0520-1-02-.08). Moreover, it is undeniable that education is a government function, and the rule identified below made it clear that the Tennessee State Board of Education viewed the supervision and regulation of athletic activities in public junior and senior high schools of Tennessee as one of its governmental functions.
In 1972, the State Board of Education adopted Rule 0520-1-2-.26 (later moved to Tenn. Comp. R. & Regs. Rule 0520-1-02.08), which officially designated the TSSAA as the organization to regulate interscholastic athletics in Tennessee. The 1972 rule stated in pertinent part:
Id.
We recognize, as the trial court did, that the 1972 rule was modified in 1996 following an adverse ruling by a federal district court, which held that the TSSAA was a state actor because its rules were "caused, directed and controlled by the Tennessee Board of Education." Graham v. Tenn. Secondary Sch. Athletic Ass'n, No. 1:95-CV-044, 1995 WL 115890, at *5 (E.D.Tenn., Feb. 20, 1995). The 1996 rule reads:
Tenn. Comp. R. & Regs. 0520-01-02-.08(1).
While the 1972 rule expressly afforded the Board of Education official control over the TSSAA with its "right to review the appropriateness of any future changes" to the TSSAA's rules and regulations, the 1996 amendment revised the language so that the Department now merely recognizes the value of participation in interscholastic athletics and the role of the TSSAA and authorizes the public schools of Tennessee to voluntarily maintain membership in the TSSAA. Although the new rule modified the "official" relationship between
In addition, employees of the TSSAA continue to participate in the State of Tennessee Employees Consolidated Retirement Plan pursuant to Tenn.Code Ann. § 8-35-209 (2010). They participated prior to the 1996 amendment, and they continue to participate. Specifically, current and former TSSAA employees continue to accrue and/or receive retirement benefits through the same retirement plan that covers state employees.
With the above facts and circumstances in mind, we look to two important cases for guidance in determining whether the TSSAA operates as the functional equivalent of a governmental agency. In Cherokee, the court held that a non-profit corporation that provides privatized services to a governmental entity is subject to the public access requirements of the Tennessee Public Records Act. Cherokee, 87 S.W.3d at 70. The only significant distinction between the facts of that case and here is that Cherokee Family Services contracted with the Tennessee Department of Human Services to help administer a state-subsidized day care program. Id. The parties seeking access to the private entity's records relied on both the Tennessee Public Records Act and provisions in the contracts between the corporation and the state. Id. The trial court found that Cherokee Family Services was not a governmental agency, but that all records in its possession were state property pursuant to the contracts between it and the state. Id. The court of appeals reversed, holding that the contractual provisions did not render the records public and that Cherokee Family Services was not subject to the Public Records Act. Id. The Supreme Court differed and held that Cherokee Family Services "operates as the `functional equivalent' of a governmental (state) agency ... and that all of its records are subject to the Tennessee Public Records Act and therefore are accessible by the public." Id. In its analysis the court noted:
Id. at 76-77.
As the holding in Cherokee and others cited herein reveal, "the public's fundamental right to scrutinize the performance of public services should not be subverted by government or by private entity merely because public duties have been delegated to an independent contractor," for "[w]hen a private entity's relationship with the government is so extensive that the entity serves as the functional equivalent of a governmental agency, the accountability created by public oversight should be preserved." Id. at 78-79. Applying the "functional equivalency" test explained above, the court in Cherokee noted:
Id. at 80.
In its conclusion, the court held that the status of Cherokee Family Services as the functional equivalent of a governmental agency was sufficient to place it within the Tennessee Public Records Act and that records in Cherokee's possession were subject to inspection pursuant to the terms of the Public Records Act. Id.
The next significant case, Gautreaux v. Internal Medicine Educ. Foundation, Inc., is one which the TSSAA heavily relies upon; however, it is readily distinguishable from the facts of this case and Cherokee. The facts of Gautreaux involved a non-profit internal medicine education corporation that contracted with the University of Tennessee College of Medicine to pay the university's faculty for teaching services performed for the residency program. Gautreaux, 336 S.W.3d at 528. In that case, the court found the private entity was not the functional equivalent of a government agency because the university did not delegate the responsibility to manage or administer its teaching program to the private entity; it merely acted as its bookkeeper. Id. at 530. Therefore, the court found that the duties performed by the corporation were merely ministerial, without any discretion given as to their performance. Id. at 531.
Based on the foregoing, we have determined that the TSSAA serves as the functional equivalent of a governmental agency, the Tennessee State Board of Education, by directing and managing the extracurricular sporting activities of almost every high school in the state of Tennessee. Therefore, we affirm the trial court's holding that the TSSAA is the functional equivalent of a government agency.
The Tennessee Public Records Act defines "public record or records" in Tenn. Code Ann. § 10-7-503(a)(1)(A) as follows:
Therefore, records made or received by the TSSAA in connection with the transaction of the public's business is subject to public access pursuant to the terms of the Tennessee Public Records Act. See Tenn. Code Ann. § 10-7-503(a)(1)(A) (2011).
The report resulting from MBA's internal investigation, along with numerous documents and statements attached thereto, were obtained by the TSSAA in furtherance of its investigation pursuant to TSSAA bylaws. As a result, the investigation constituted the transaction of the official business of the TSSAA — the governance of interscholastic athletic competition in Tennessee. Thus, the TSSAA received MBA's report in connection with the transaction of TSSAA's official business. See Tenn.Code Ann. § 10-7-503(a)(1)(A) (2011).
The foregoing notwithstanding, the TSSAA contends that some of the records provided by MBA pertained to its financial affairs, which are not public records. Moreover, it asserts that the business conducted with MBA is not the transaction of official government business, but rather business that occurs because of the private contractual relationship between them. We respectfully disagree with both contentions.
The distinction between public and private schools is irrelevant for purposes of this issue because the documents, which may have been confidential and may have remained confidential had MBA not provided them to the TSSAA, lost that status and protection when the records were voluntarily provided to the TSSAA in furtherance of its investigation of possible violations of TSSAA bylaws. The operative fact here is that the TSSAA received the documents in connection with the transaction of its business.
Therefore, we have concluded that the documents at issue on appeal are public records and, as such, they are subject to the Tennessee Public Records Act. Whether they are subject to any exemptions or other protections of confidentiality is addressed immediately below.
The TSSAA contends the records are confidential under other state and federal exemptions and protected by the attorney work-product doctrine.
It contends the records are confidential pursuant to Tenn.Code Ann. § 10-7-504, which protects records held by educational institutions regarding academic performance, financial status of a student and their family, and medical information. Tenn.Code Ann. § 10-7-504(a)(4)(A) (2013). That section reads as follows:
Because the trial court and this court have determined the TSSAA is the functional equivalent of a governmental agency, the TSSAA asserts that it must be treated in the same fashion; thus, it insists it is entitled to assert the confidentiality defenses of any public educational institution in order to protect the student records in its possession. See Tenn.Code Ann. § 10-7-504(a)(4)(A) (2013). City Press counters insisting the statute is inapplicable because the TSSAA is not an educational institution. The trial court determined the TSSAA was not an educational institution as contemplated in the statute.
We agree with the TSSAA's assertion that, since it has been found to be the functional equivalent of a governmental agency, it is entitled to the confidentiality provisions that are applicable to the public function it serves. That does not, however, mean the TSSAA is an educational institution or that it functioned as an educational institution; nor does it lead to the conclusion that the records requested by City Press are "records of students in public educational institutions," as specified in Tenn.Code Ann. § 10-7-504(a)(4)(A).
The statute states "[t]he records of students in public educational institutions shall be treated as confidential." Id. Although the TSSAA contends on appeal that all of the records requested are confidential, it has not specifically identified any particular record or records at issue that qualify as "a record of a student in a public educational institution," and we are unable to identify any particular record that qualifies for the confidentiality protection under Tenn.Code Ann. § 10-7-504(a)(4)(A).
The TSSAA also contends that 20 U.S.C.A. § 1232g, the Family Educational Rights and Privacy Act, prohibits an educational agency or institution from permitting the release of educational records or personally identifiable information contained in those records without the written consent of their parents. The term "educational agency or institution" is defined as "any public or private agency or institution which is the recipient of funds under any applicable program." 20 U.S.C.A. § 1232g(a)(3) (2013). The TSSAA has not established that it or MBA received funds from an applicable federal program; thus, this statute is inapplicable to the TSSAA.
Finally, it argues that the documents are protected by the attorney work-product doctrine because the TSSAA attorney prepared these documents in anticipation of litigation. The trial court found that none of the documents City Press sought were the work-product of the TSSAA; rather, "these documents were simply collected by the TSSAA attorney and were not created by or at the direction of the TSSAA attorney." The records at issue are the following documents:
The record before us reveals that the documents identified immediately above were not prepared by or at the direction of the TSSAA's attorney or under his supervision. Instead, the documents were created by or at the request of MBA officials in furtherance of MBA's internal investigation, which were prepared by and/or received by MBA prior to the request from the TSSAA.
To be subject to the work-product doctrine, the documents must have been prepared by or for legal counsel. See The Tennessean v. Tenn. Dep't of Pers., No. M2005-02578-COA-R3-CV, 2007 WL 1241337, at *10 (Tenn.Ct.App. Apr. 27, 2007). None of these documents were prepared by or for the TSSAA's attorney; they were merely provided to the TSSAA in furtherance of its investigation of possible rules violations, which is one of the principal functions of the TSSAA.
The judgment of the trial court is affirmed, and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against the TSSAA.
