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

When a Tennessee school board needs a new director of schools, it often hires an outside firm, like the Tennessee School Boards Association (TSBA) or the Tennessee Organization of School Superintendents (TOSS), to gather applications, vet candidates, and recommend finalists. A state senator asked whether that outside firm is subject to Tennessee's Public Records Act and Open Meetings Act when it's doing that work.

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. Maybe. 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 pure private firm with no legislative origin will usually not qualify. But under Souder v. Health Partners, an entity that is a subsidiary or delegate to which a public body has handed off its official responsibilities can be pulled into the Act. So the answer is fact-specific: depends on the firm's organizational origin, who appoints its members, the scope of authority delegated, and the totality of circumstances.

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).

Section 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.

A typical search firm fails the legislative-origin prong. TSBA, for example, is a private nonprofit organized under general corporate laws; it is not chartered by any specific city, county, or state statute. So absent more, its internal meetings would not be Open Meetings Act meetings.

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 takeaway: if a school board has effectively delegated the decision-making part of a director search (drawing up criteria, scoring candidates, picking finalists) to an outside firm, and the firm's structure is sufficiently entangled with the board (e.g., the board appoints the firm's relevant committee, the firm acts only on the board's behalf), a court could conclude the firm is acting as a delegate or subsidiary and so its relevant meetings fall under the Act. The AG declined to set a bright line; 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: Section 10-7-503(f) on its face applies to "an employment search for a director of schools or any chief public administrative officer." Whether other senior school district hires fall within "chief public administrative officer" depends on the role.

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: That depends on the same totality-of-the-circumstances test. Interviews conducted by the school board itself (or a committee of it) are squarely covered. Interviews conducted purely by the firm's staff, with no board members present, look more like private vendor activity, but the records of those interviews are still public under § 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