When a Tennessee school board hires an outside search firm to find a new director of schools, do public records and open meetings laws apply to the firm's work?

Plain-English summary

A state senator asked whether third parties hired by Tennessee school boards to search for directors of schools, including the Tennessee School Board Association and the Tennessee Organization of School Superintendents, are subject to the Public Records Act and Open Meetings Act.

The AG split the answer in two.

Public records. Yes. Tenn. Code Ann. § 10-7-503(f) is unusually specific: any records, employment applications, credentials, and similar documents "obtained by any person in conjunction with an employment search for a director of schools or any chief public administrative officer" are open for inspection. The statute defines "person" to include a natural person, corporation, firm, company, association, or any other business entity. So an outside search firm cannot shield candidate applications and credentials by claiming they are private corporate files.

Open meetings. The AG gave a conditional answer. The Open Meetings Act covers meetings of any "governing body" of a "public body." The Tennessee Supreme Court in Dorrier v. Dark defined "public body" by whether the entity's "origin and authority may be traced to state, city, or county legislative action" and whether its members have authority to make decisions or recommendations on policy or administration affecting the people's business. A third party without legislative origin ordinarily will not qualify, but Souder v. Health Partners recognizes that a subsidiary exercising delegated public responsibilities may fall within the Act. The answer depends on the particular entity's structure and authority.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee's open-government statutes operate on the same general theory: records of public business should be inspectable, and meetings of public bodies should be public. The Public Records Act starts from a broad baseline at Tenn. Code Ann. § 10-7-503(a)(2)(A): "[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 unless otherwise provided by state law." A "record" is "all documents, papers, letters or other 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." Tenn. Code Ann. § 10-7-503(a)(1)(A).

Tenn. Code Ann. § 10-7-503(f) goes further. It specifically applies to employment searches for a director of schools or any chief public administrative officer:

All records, employment applications, credentials and similar documents obtained by any person in conjunction with an employment search for a director of schools or any chief public administrative officer shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee . . . . For the purposes of this subsection (f), the term "person" includes a natural person, corporation, firm, company, association or any other business entity.

The "any person" + business-entity definition was the key. The legislature drafted the provision to reach the records wherever they sit, including in the hands of an outside vendor. That eliminates the obvious workaround of routing a school superintendent search through a private firm to keep applications confidential. The records are public no matter who holds them.

The Open Meetings Act is structurally different. Tenn. Code Ann. § 8-44-102(a) declares that "all meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee." A "governing body" is "the members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." Tenn. Code Ann. § 8-44-102(b). The statute does not define "public body."

Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976), supplied that definition: a public body is any "board, commission, committee, agency, authority, or any other body, by whatever name, whose origin and authority may be traced to state, city, or county legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector." That phrasing is conjunctive: legislative origin and decisional authority on public matters.

The opinion did not decide whether either named organization met the legislative-origin test. It said a third party not organized pursuant to legislative action would ordinarily fall outside the Open Meetings Act, but the answer for any particular search organization requires examining its structure and authority.

But the AG flagged a complication via Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998). In Souder, a nonprofit corporation whose sole member was a statutory hospital district, whose directors were all appointed by the district, and whose finances were commingled with the district's, was held to be subject to the Open Meetings Act as a "subsidiary[] to which municipal corporations have delegated their official responsibilities and authority." The court relied on a parallel Georgia decision, Northwest Georgia Health Sys., Inc. v. Times-Journal, 461 S.E.2d 297 (1995).

The AG said the meeting question turns on the particular third party's origin, authority, and relationship to the school board. It called for examination of:

• the third party's organizational structure
• whether members exist and how they are appointed
• the public's role in appointing members
• members' rights and obligations
• the third party's authority
• the basis for that authority

Common questions

Q: Can a school board sign an NDA with the search firm to keep candidate names confidential? A: The opinion's reasoning leaves little room for it. Tenn. Code Ann. § 10-7-503(f) expressly makes employment-search records for a director of schools open to inspection no matter who holds them, including an outside firm. Because the statute reaches the records wherever they sit, routing a search through a private firm does not make the applications and credentials confidential.

Q: What about resumes of candidates who don't make the final cut? A: The statute reaches "all records, employment applications, credentials and similar documents." It does not distinguish between finalists and others. The opinion did not carve out unsuccessful candidates.

Q: Does this apply only to director-of-schools searches, or to other administrative hires? A: Tenn. Code Ann. § 10-7-503(f) on its face applies to "an employment search for a director of schools or any chief public administrative officer." The opinion does not decide whether any other school district role fits that language.

Q: What if the search firm meets via conference call, with no formal members? A: The Open Meetings Act focuses on "governing body" decisions of a "public body." A firm without members, vote, or decisional structure may not have a "governing body" at all. The AG flagged "the existence or nonexistence of members" as one of the factors.

Q: Are firm interviews with candidates open meetings?
A: The opinion did not decide whether any particular interview was an open meeting. It said the meeting question depends on the third party's structure and authority. Records obtained by the third party in conjunction with the director-of-schools search are subject to inspection under Tenn. Code Ann. § 10-7-503(f).

Citations and references

Statutes (as cited in the opinion):

• Tenn. Code Ann. §§ 10-7-501 to -516 (Public Records Act)
• Tenn. Code Ann. § 10-7-503(a)(1)(A) (definition of "record")
• Tenn. Code Ann. § 10-7-503(a)(2)(A) (general inspection right)
• Tenn. Code Ann. § 10-7-503(f) (director-of-schools employment search records)
• Tenn. Code Ann. §§ 8-44-101 to -108 (Open Meetings Act)
• Tenn. Code Ann. § 8-44-102(a), (b)

Cases:

• Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976)
• Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998)
• Northwest Georgia Health Sys., Inc. v. Times-Journal, Inc., 218 Ga. App. 336, 461 S.E.2d 297 (1995)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-016.pdf

Original opinion text

May 4, 2016
Opinion No. 16-16
Application of State Public Records and Open Meetings Laws to Search Firms Hired by School Boards

Question
Whether third parties, including but not limited to the Tennessee School Board Association and the Tennessee Organization of School Superintendents, hired by school boards to conduct searches for directors of schools, are subject to the Tennessee Open Meetings Act, Tenn. Code Ann. §§ 8-44-101 - 108 and the Tennessee Public Records Act, Tenn. Code Ann. §§ 10-7-501 - 516.

Opinion
Any records obtained by a third party in conjunction with an employment search for a director of schools for a school board are public records and subject to inspection under Tenn. Code Ann. § 10-7-503(f). Additionally, if the third party is one whose "origin and authority may be traced to state, city, or county legislative action," then its meetings are subject to the Open Meetings Act.

ANALYSIS

Tennessee Public Records Act

Tennessee's Public Records Act provides 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 unless otherwise provided by state law." Tenn. Code Ann. § 10-7-503(a)(2)(A). A "record" is defined as "all documents, papers, letters or other 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." Tenn. Code Ann. § 10-7-503(a)(1)(A).

The Public Records Act also specifically provides that

[a]ll records, employment applications, credentials and similar documents obtained by any person in conjunction with an employment search for a director of schools or any chief public administrative officer shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. For the purposes of this subsection (f), the term "person" includes a natural person, corporation, firm, company, association or any other business entity.

Tenn. Code Ann. § 10-7-503(f).

Accordingly, pursuant to these statutory provisions, any records obtained by a third party in conjunction with an employment search for a director of schools for a school board are public records and are subject to inspection under Tennessee's Public Records Act.

Tennessee Open Meetings Act

The Tennessee Open Meetings Act provides that "all meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee." Tenn. Code Ann. § 8-44-102(a). The Act defines "governing body" as "[t]he members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration
. . . ." Tenn. Code Ann. § 8-44-102(b).

The Act does not define "public body," but the Tennessee Supreme Court has stated that, in using the term "public body,"

the Legislature intended to include any board, commission,
committee, agency, authority, or any other body, by whatever name, whose origin and authority may be traced to state, city, or county legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector.

Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976). Clearly, if the third party is one whose "origin and authority may be traced to state, city, or county legislative action," then the meetings of the third party are subject to the Open Meetings Act.

A third party that was not organized pursuant to legislative action would ordinarily not be subject to the Open Meetings Act. By using the terms "governing body" and "public body" the statute contemplates a body with members who vote, recommend and make decisions. It does not necessarily include any third party involved in a search for a director of schools. Otherwise it would have included a much broader definition. Whether a third party would be subject to the Open Meetings Act would depend upon the facts and circumstances associated with the third party's role and responsibilities. Factors that a court would consider include the organizational structure of the third party, the existence or nonexistence of members, the public's involvement in the appointment of any members, the rights and obligations of the members, the authority of the third party, and the basis for such authority.

In Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998), the Court of Appeals addressed the issue of whether meetings of the board of directors of a nonprofit corporation acting on behalf of a governmental entity were subject to the Open Meetings Act. The nonprofit corporation at issue had one member, a general hospital district established by statute. The district organized the nonprofit corporation as a governmental instrumentality, a subsidiary, and it appointed all of its directors. After examining all of the relevant factors, including the commingling of funds with those of the district, the court held that "subsidiaries to which municipal corporations have delegated their official responsibilities and authority are subject to the Open Meetings Act." Id. at 146 (citing Northwest Georgia Health Sys., Inc. v. Times-Journal, Inc., 218 Ga. App. 336, 461 S.E.2d 297 (1995)).

While the statute confines the Open Meetings Act to a governing body and a public body, the Souder case raises the possibility that the Act may apply in certain circumstances to a third party to whom the public body or governing body has delegated its official responsibilities and authority. Whether there has been such a delegation that might trigger the requirements of the Act in any given circumstance will depend on the particular facts and the totality of the circumstances of the third party's involvement, its organizational structure and origin, and its relationship with the governing body.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Mike Bell
State Senator
309 War Memorial Building
Nashville, TN 37243