City Press Communications, LLC v. Tennessee Secondary School Athletic Association ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 19, 2014 Session
CITY PRESS COMMUNICATIONS, LLC ET AL.
V. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION
Appeal from the Chancery Court for Davidson County
No. 12-240-I Claudia Bonnyman, Chancellor
No. M2013-01429-COA-R3-CV - Filed April 30, 2014
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.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Chancery Court Affirmed and Remanded
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and R ICHARD H. D INKINS, J., joined.
Richard L. Colbert and Courtney L. Wilbert, Franklin, Tennessee, for the appellant,
Tennessee Secondary School Athletic Association.
John P. Williams, Nashville, Tennessee, for the appellees, City Press Communications, LLC,
Steve Cavendish, and Ken Whitehouse.
OPINION
The Tennessee Secondary School Athletic Association (“the TSSAA”) is a private
non-profit corporation that governs and coordinates athletic competition among almost all
of Tennessee’s secondary schools, both public and private. Created in 1925 and incorporated
as a non-profit organization in 1967, the TSSAA is a voluntary association which has
approximately 400 member schools in Tennessee; eighty-two percent of its members are
public schools.1
The TSSAA performs two basic functions. It establishes bylaws or “rules” for
interscholastic sports competition and enforces those rules.2 The TSSAA also sponsors and
coordinates numerous post-season championship tournaments in several divisions and
classifications for the sports in which member schools compete. Its annual budget is
approximately $5,000,000, of which 2% comes from dues paid by the members; the
remainder comes primarily from contracts pertaining to post-season championships and gate
receipts arising therefrom.
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
1
The record states that as of May 1, 2012, the TSSAA has 401 member schools of which 329 are
public schools and 72 are private schools.
2
All TSSAA member schools agree to abide by the TSSAA bylaws as a condition for being eligible
to participate in TSSAA events.
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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:
1. A report submitted by Montgomery Bell Academy regarding financial
contributions to students/families of the school. Also, any email or written
correspondence between MBA officials and TSSAA staff during 2011
pertaining to this subject.
2. Any and all records, emails and correspondence regarding Montgomery Bell
Academy and [its former head football coach] up to his dismissal in April
2011.
3. Any and all records, emails and correspondence between the TSSAA and
member schools regarding possible violations of financial aid rules during the
2011 calendar year.
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:
(a) the pervasive entwinement of state school officials in the governing
structure of the TSSAA;
(b) the overwhelming predominance of public high schools in the membership
of the TSSAA;
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(c) the payment of public funds to the TSSAA by public high schools as
membership dues, and the TSSAA’s receipt of revenues from athletic contests
held on public grounds and in public buildings;
(d) the official recognition of the TSSAA by the Tennessee Board of
Education in its rules and in numerous ways over the years;
(e) the use of public facilities for many of the athletic contests which are
regulated by the TSSAA; and
(f) the performance of a vital regulatory function by the TSSAA which would,
in the absence of the TSSAA, be performed by the Board of Education or
another government agency.
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.
S TANDARD OF R EVIEW
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 Publishing Co. v. Cherokee Children & Family Services, 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.
A NALYSIS
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 shall, at all times during business
hours, . . . be open for personal inspection by any citizen of this state[.]” Tenn. Code Ann.
§ 10-7-503(a)(2)(A) (2011). The accountability created by the Public Records Act is to be
extended in favor of “the fullest possible public access to public records.” Id. 78-79 (quoting
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Tenn. Code Ann. § 10-7-505(d) (1999)). Thus, although the Public Records Act expressly
pertains to “state, county and municipal records,” a private entity can become subject to the
Act if it’s relationship with the government is so extensive that the private entity serves as
the functional equivalent of a governmental agency. Cherokee, 87 S.W.3d at 78-79. For this
reason, our courts have interpreted records “made or received . . . in connection with the
transaction of official business by any governmental agency,” Tenn. Code Ann. § 10-7-
503(a)(1)(A) (2011), to include records in the hands of any private entity which operates as
the functional equivalent of a governmental agency. Cherokee, 87 S.W.3d at 79. The
functional equivalent doctrine, however,
is not intended to allow public access to the records of every private entity
which provides any specific, contracted-for services to governmental agencies.
A private business does not open its records to public scrutiny merely by doing
business with, or performing services on behalf of, state or municipal
government. But when an entity assumes responsibility for providing public
functions to such an extent that it becomes the functional equivalent of a
governmental agency, the Tennessee Public Records Act guarantees that the
entity is held accountable to the public for its performance of those functions.
Id.
I. T HE F UNCTIONAL E QUIVALENT OF A G OVERNMENTAL A GENCY
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.
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A.
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.”
The TSSAA argues that it receives no other government funding other than the small
portion of annual dues received from public schools. Moreover, while the TSSAA sponsors
championships in public facilities, these facilities are arranged by private entities like local
chambers of commerce that contract with TSSAA for the opportunity to host these events.
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 Tennessee State Board of Education, Administrative Rules and
Regulations, Rule 0520-1-2-.26 (1972) (later moved to Rule 0520-1-1-.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)(1998). 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.
B.
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.
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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 public school system, then the government
involvement with and control over TSSAA is substantial.” The TSSAA disagrees, insisting
there are no government officials who are employees that actually run its day-to-day
operations. The TSSAA relies on Gautreaux v. Internal Medicine Educ. Foundation, Inc.,
336 S.W.3d 526 (Tenn. 2011), to contend its circumstances are analogous to those of the
non-profit internal medicine education corporation that was found not to be a government
agency. Id. at 531. The members of that non-profit corporation were required to be faculty
members of the state university, id. at 530, much like the members of TSSAA’s Board of
Control and Legislative Council must be administrators of member schools. Despite this
similarity, the court in Gautreaux found that the state university’s control over the non-profit
corporation concerned only ministerial tasks, an activity which did not weigh in favor of
finding that the non-profit corporation was a governmental agency. Id. Here, the Board of
Control and Legislative Council have substantial control over the TSSAA; these governing
bodies influence and enforce the bylaws of the TSSAA, essentially controlling the TSSAA’s
purpose - to regulate interscholastic sport competition.
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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 (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. 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.
For the foregoing reasons, the record fully supports the trial court’s finding of
substantial government involvement with and control of the TSSAA.
C.
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.
D.
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 it
performs by noting that this public service is not expressly mandated by Tennessee law; it
also notes that the services it provides are not the product of a contractual obligation with the
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government. Further, the TSSAA argues that each school is free to choose whether to include
sports in its after-school programs and whether to participate in interscholastic sports
competition.
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 Tennessee State Board of Education,
Administrative Rules and Regulations, Rule 0520-1-2-.26 (1972) (later moved to Rule
0520-1-1-.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 Rule
0520-1-1-.08), which officially designated the TSSAA as the organization to regulate
interscholastic athletics in Tennessee. The 1972 rule stated in pertinent part:
The Tennessee State Board of Education recognizes and designates the
Tennessee Secondary School Athletic Association 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. The
State Board of Education approves the current rules and regulations as stated
in the official handbook of the Tennessee Secondary School Athletic
Association and reserves the right to review the appropriateness of any future
changes.
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 A’ssn, No. 1:95-CV-044, 1995 WL
115890, at *5 (E.D. Tenn., Feb. 20, 1995). The 1996 rule reads:
The State Board of Education recognizes the value of participation in
interscholastic athletics and the role of the Tennessee Secondary School
Athletic Association in coordinating interscholastic athletic competition. The
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State Board of Education authorizes the public schools of the state to
voluntarily maintain membership in the Tennessee Secondary School Athletic
Association.
Tenn. Comp. R. & Regs. 0520-01-02-.08(1) (1998).
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 the Board of Education and the TSSAA, it had no practical effect on the realities of
the relationship in the context of the TSSAA’s control of interscholastic athletics in
Tennessee. Specifically, it did not diminish the Board of Education’s indirect control of the
TSSAA, the public schools’ participation in the TSSAA, or the public’s interest in the
TSSAA’s role. More importantly, it did not affect the fact that the vast majority of the
decision-makers continued to be public officials and representatives of public entities.
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
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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:
Scholars have long debated the merits of privatization policies. Compare
Joseph Caponio and Janet Geffner, Does Privatization Affect Access to
Government Information?, 5 Gov’t Info. Q. 147 (1998) (describing
privatization as an efficient management tool when used properly); with
Shirley L. Mays, Privatization of Municipal Services: A Contagion in the Body
Politic, 34 Duq. L. Rev. 41 (1995) (asserting that “governments cannot turn
over operation of essential government services to private companies without
abusing the trust of its citizens and putting them at risk”). Only recently,
however, has attention focused upon the ways in which public access to
information may be obstructed when governmental functions are transferred
to the private sector. As one commentator states, “Privatization may be
desirable in itself, but it should not come without . . . leaving public
accountability intact. Not only should the public be able to monitor the private
company’s activities, but the monitoring should be on the same terms as when
the public agency was the information vendor.” Feiser, supra, at 833. Others
note that the government may, intentionally or unintentionally, shield records
from the public by shifting them to private entities. Indeed, by maintaining and
controlling previously public records, private companies may control public
access to such records in ways that are “at odds with the very purpose of public
records laws.” Matthew Bunker and Charles Davis, Privatized Government
Functions and Freedom of Information: Public Accountability in an Age of
Private Governance, 75 Journalism and Mass Comm. Q. 464, 464-68 (1998).
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:
While it is true that: (1) Cherokee was privately incorporated rather than
created by the legislature; (2) the contracts disavowed any agency relationship
between Cherokee and the State; and (3) the parties asserted that the State
incurred no tort liability for Cherokee’s activities, these considerations are
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outweighed by the other factors listed above. Accordingly, we conclude that
Cherokee served as the functional equivalent of a governmental agency, and
so we hold that the records in Cherokee’s possession are subject to public
access pursuant to the terms of the Tennessee Public Records Act.
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.
II. T ENNESSEE P UBLIC R ECORDS A CT
The Tennessee Public Records Act defines “public record or records” in Tenn. Code
Ann. § 10-7-503(a)(1)(A) as follows:
As used in this part . . . “public record or records” or “state record or records”
means all documents, papers, letters, maps, books, photographs, microfilms,
electronic data processing files and output, films, sound recordings or other
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material, regardless of physical form or characteristics, made or received
pursuant to law or ordinance or in connection with the transaction of official
business by any governmental agency.
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.
III. O THER R IGHTS OF C ONFIDENTIALITY
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. §
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10-7-504(a)(4)(A) (2013). That section reads as follows:
The records of students in public educational institutions shall be treated as
confidential. Information in such records relating to academic performance,
financial status of a student or the student’s parent or guardian, medical or
psychological treatment or testing shall not be made available to unauthorized
personnel of the institution or to the public or any agency, except those
agencies authorized by the educational institution to conduct specific research
or otherwise authorized by the governing board of the institution, without the
consent of the student involved or the parent or guardian of a minor student
attending any institution of elementary or secondary education, except as
otherwise provided by law or regulation pursuant thereto, and except in
consequence of due legal process or in cases when the safety of persons or
property is involved. The governing board of the institution, the department of
education, and the Tennessee higher education commission shall have access
on a confidential basis to such records as are required to fulfill their lawful
functions. Statistical information not identified with a particular student may
be released to any person, agency, or the public; and information relating only
to an individual student’s name, age, address, dates of attendance, grade levels
completed, class placement and academic degrees awarded may likewise be
disclosed.
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
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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. § 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 are 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:
A. 4/1/11 memo from Chris Simonis to Brad Gioia (MBA headmaster)
B. Memo from Daniel McGugin (former MBA football coach) describing
various accusations shared with Brad Gioia in April 2011
C. Minutes of 4/21/11 MBA Board of Trustees meeting
D. 5/23/11 Resolution of MBA Board of Trustees Executive Committee
E. 8/12/11 letter from Jimmy Webb (Chairman of MBA Board of Trustees) to
TSSAA attorney and accompanying Exhibit A (description of situations
examined by MBA Review Committee with names omitted)
F. 8/16/11 letter from MBA attorney to TSSAA attorney and accompanying
documents:
i. 8/3/11 MBA Review Committee report
ii. 8/3/11 Supplement to Report from one Committee member
iii. 8/8/11 Response to Supplement
iv. Supplemental emails from one Committee member regarding
communications post-dating Committee’s report
G. 9/1/11 correspondence from MBA attorney to TSSAA attorney supplying
additional information requested by TSSAA attorney
H. Records obtained from MBA athletic director regarding dissemination of
information about TSSAA rule requirements
I. 9/15/11 minutes of MBA Executive Committee
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J. 9/26/11 letter from George McGugin to Jimmy Webb
K. 9/29/11 email from MBA attorney to TSSAA attorney accompanied by
sample past-due letters
L. 6/26/11 email from Daniel McGugin to Jimmy Webb with accompanying
sheet of additional information regarding tuition payments for MBA
student-athletes.
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., M2005-02578-
COA-R3CV, 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.
I N C ONCLUSION
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.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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