Do private companies that run Tennessee jails and prisons have to report deaths in custody and follow the same public records rules as government correctional agencies?
Subject
Whether a private prison company that contracts with a state, county, or municipal correctional agency to operate a prison or jail in Tennessee is subject to the reporting and public records requirements of Tenn. Code Ann. § 38-10-102.
Plain-English summary
Senator Kerry Roberts asked whether the law that requires Tennessee correctional agencies to submit reports to the Tennessee Bureau of Investigation, including reports of in-custody deaths, and to keep a public record of those deaths, also applies to private companies running prisons and jails under contract.
The AG said yes. The statute by its terms covers "all state, county, and municipal law enforcement and correctional agencies." A private contractor is not a government agency on its face, but Tennessee courts have used a "functional equivalency" approach to apply public records and oversight laws to private entities performing contracted-out government functions. The leading case, Friedmann v. Corrections Corp. of America (2009), held that a private entity operating a correctional facility under a state contract "is operating that facility as the functional equivalent of a state agency." A subsequent Court of Criminal Appeals decision (Gilliam, 2010) confirmed the point. So a CoreCivic, Trousdale Turner, or any other private corrections operator on a state or county contract has the same TBI reporting obligations and the same public-records obligation around in-custody deaths as the government agency it serves.
The reasoning, drawn from Memphis Publishing v. Cherokee Children & Family Services, 87 S.W.3d 67 (Tenn. 2002), is that the public's right to scrutinize the performance of public services and the expenditure of public funds "should not be subverted... merely because public duties have been delegated to an independent contractor." When the relationship is "so extensive that the entity serves as the functional equivalent of a governmental agency, the accountability created by public oversight should be preserved."
What this means for you
If you are a journalist or watchdog covering Tennessee corrections
You can request the in-custody-death record from a private prison contractor on the same footing as you would request it from the state or county. The opinion makes clear the private entity is a functional equivalent for § 38-10-102(e) purposes. Cite the statute and the Friedmann functional-equivalency holding when sending the request. If the contractor refuses, the response should be evaluated under the Public Records Act framework, with the AG opinion in your back pocket.
If you are a private prison contractor or county jail run by a private operator
Treat your facility as covered by § 38-10-102. That means submitting uniform crime reports and reports of law enforcement-related deaths to the TBI, and maintaining a record of in-custody deaths that is "open for public inspection." The opinion does not create the obligation; it confirms that the obligation already runs to you under functional-equivalency doctrine. Build your records procedures and TBI reporting workflows accordingly.
If you are a county or municipal official contracting out correctional services
Your contracts should explicitly require the contractor to comply with § 38-10-102 reporting and public records obligations, and to provide records on request. The functional-equivalency doctrine applies as a matter of law, but contractual confirmation reduces friction when a request comes in.
If you are a family member of someone who died in custody
A record of the death must exist and must be open for public inspection. That includes deaths in private prisons or jails. If you are stonewalled, the AG opinion gives you use to contest a refusal. Reach out to a Tennessee attorney experienced in public records or civil rights matters.
If you are a Tennessee legislator
The AG's reasoning is broad. Functional-equivalency doctrine reaches "contracted-out" government services generally, not just corrections. Any program where the State or a local government delegates a core function to a private contractor will face similar arguments around public records and oversight statutes.
Common questions
Q: Does this apply to a privately-run county jail?
A: Yes. The opinion specifically addresses both state-contract and county-contract scenarios. Counties may subcontract corrections to private operators under the County Correctional Incentives Act of 1981 (§§ 41-8-101 to -108), and those facilities are likewise functional equivalents of governmental agencies under Friedmann.
Q: Does the functional-equivalency doctrine come from a statute?
A: No, it comes from Tennessee case law applying public-records principles to contracted-out government functions. The leading authority is Memphis Publishing v. Cherokee Children & Family Services (Tenn. 2002), and its application to private prisons is Friedmann v. CCA (Tenn. Ct. App. 2009).
Q: What kinds of records does § 38-10-102 reach?
A: Subsection (a) requires reporting "activities in connection with law enforcement and criminal justice, including uniform crime reports and reports of law enforcement-related deaths" to the TBI. Subsection (e) requires maintaining "a record of deaths of individuals in custody" that is "open for public inspection."
Q: Are body-worn camera footage or use-of-force reports also covered?
A: The AG opinion is limited to § 38-10-102, which covers TBI reporting and the in-custody death record. It does not address the broader Tennessee Public Records Act application to other contractor records. The functional-equivalency reasoning would likely extend to other categories under the Public Records Act, but a separate analysis is needed for each request.
Q: What if the contract does not require the operator to comply?
A: The obligation flows from the statute, not the contract. Functional equivalency means the operator is treated like a public agency for purposes of the records law, regardless of contractual silence.
Q: Where can a family or journalist file a complaint if a contractor refuses to provide the in-custody death record?
A: Through the Tennessee Public Records Act enforcement mechanisms (suit in chancery court under Tenn. Code Ann. § 10-7-505) or by raising the issue with the contracting government agency, which retains supervisory responsibility.
Background and statutory framework
Tennessee maintains two parallel reporting and recordkeeping requirements aimed at correctional accountability. First, § 38-10-102(a) requires "all state, county, and municipal law enforcement and correctional agencies" to submit to the Tennessee Bureau of Investigation reports of "their activities in connection with law enforcement and criminal justice, including uniform crime reports and reports of law enforcement-related deaths." Second, § 38-10-102(e) requires those same agencies to "maintain a record of deaths of individuals in custody," which "is open for public inspection."
The Tennessee Department of Correction operates state prisons and is authorized under the Private Prison Contracting Act of 1986 to contract with a private prison contractor. Tenn. Code Ann. § 41-24-108(a). Counties may contract with the Department to house state prisoners and may subcontract correctional services to private entities under the County Correctional Incentives Act of 1981 (§§ 41-8-101 to -108).
The Tennessee courts have addressed the public-accountability implications of these arrangements in two key cases. In Memphis Publishing Co. v. Cherokee Children & Family Services, the Tennessee Supreme Court adopted a functional-equivalency approach for applying the Public Records Act to private contractors performing government functions. In Friedmann v. Corrections Corp. of America, the Court of Appeals applied that approach to a private prison operator and held the operator was the functional equivalent of a state agency.
The functional-equivalency test asks whether the private entity's relationship with the government is "so extensive that the entity serves as the functional equivalent of a governmental agency." When it is, "the accountability created by public oversight should be preserved." Friedmann concluded yes for a private operator running an entire correctional facility under contract; the same conclusion applies to private operators on county subcontracts. The AG's opinion extends this conclusion expressly to § 38-10-102's TBI reporting and in-custody death record requirements.
Citations
Statutes and regulations:
- Tenn. Code Ann. § 38-10-102 (reporting and in-custody death record)
- Tenn. Code Ann. § 41-24-108(a); § 41-24-102(5) (Private Prison Contracting Act)
- Tenn. Code Ann. §§ 41-8-101 to -108 (County Correctional Incentives Act of 1981)
- Tenn. Comp. R. & Regs. 0420-2-03-.01, 0420-2-03-.09 (county subcontracting)
Cases:
- Friedmann v. Corrections Corp. of America, 310 S.W.3d 366 (Tenn. Ct. App. 2009), private prison operator is functional equivalent of a state agency
- State v. Gilliam, 2010 WL 2670822 (Tenn. Crim. App. July 6, 2010), confirms governmental-function characterization
- Memphis Publ'g Co. v. Cherokee Children & Family Servs., 87 S.W.3d 67 (Tenn. 2002), functional-equivalency framework for public records
Source
- Landing page: https://www.tn.gov/attorneygeneral/opinions.html
- Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-02.pdf
Original opinion text
STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 2, 2023
Opinion No. 23-002
Application of Tenn. Code Ann. § 38-10-102 to Private Prison Contractor
Question
Is a private prison company that contracts with a state, county, or municipal law enforcement or correctional agency to operate a prison or jail in Tennessee subject to the reporting and public records requirements of Tenn. Code Ann. § 38-10-102?
Opinion
Yes, a private prison company that has contracted with a state, county, or municipal law enforcement or correctional agency to operate a prison or jail in Tennessee is subject to the reporting and public records requirements of Tenn. Code Ann. § 38-10-102.
ANALYSIS
"All state, county, and municipal law enforcement and correctional agencies" are required to submit to the Tennessee Bureau of Investigation reports of "their activities in connection with law enforcement and criminal justice, including uniform crime reports and reports of law enforcement-related deaths." Tenn. Code Ann. § 38-10-102(a). Those same government entities are also required by statute to "maintain a record of deaths of individuals in custody" and that record "is open for public inspection." Id. § 38-10-102(e).
The Tennessee Department of Correction is authorized, under the Private Prison Contracting Act of 1986, to contract with a private prison contractor to provide correctional services to prison inmates in the custody of the Department. Id. § 41-24-108(a) and § 41-24-102(5). The Tennessee Court of Appeals has held that a private entity operating a correctional facility pursuant to a contract with the State is performing a government function and, therefore, "is operating that facility as the functional equivalent of a state agency." Friedmann v. Corrections Corp. of America, 310 S.W.3d 366, 375, 378 (Tenn. Ct. App. 2009); see also State v. Gilliam, No. E2009-01079-CCA-R3-CD, 2010 WL 2670822, at *2 (Tenn. Crim. App. July 6, 2010) (finding that "by operating a correctional facility, a function traditionally performed by the State, [private entity] and its employees were engaged in a governmental function").
Counties may also contract with the Department to house state prisoners and may then, under the County Correctional Incentives Act of 1981, subcontract with private entities to provide the correctional services. Tenn. Code Ann. §§ 41-8-101–108; Tenn. Comp. R. & Regs. 0420-2-03-.01 and 0420-2-03-.09. Those facilities being operated by a private entity pursuant to contracts with local governmental entities "likewise are being operated . . . as the functional equivalent of a governmental agency." Friedmann, 310 S.W.3d at 379.
Thus, a private prison company that has contracted with the Department of Correction or a with local governmental entity to operate a correctional facility is operating that facility as the functional equivalent of a governmental correctional agency.
As the Tennessee Supreme Court has explained, "the functional equivalency approach . . . provides a superior means for applying public records laws to private entities which perform 'contracted out' governmental services . . . ." Memphis Publ'g Co. v. Cherokee Children & Family Servs., 87 S.W.3d 67, 78-79 (Tenn. 2002).
[T]he public's fundamental right to scrutinize the performance of public services and the expenditure of public funds should not be subverted by government or by private entity merely because public duties have been delegated to an independent contractor. When 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.
Accordingly, when a private prison contractor is operating in a way that makes it the functional equivalent of a state or county correctional agency subject to the reporting and public record requirements of Tenn. Code Ann. § 38-10-102(a) and (e), the private prison contractor will be subject to the same statutory reporting and public record requirements to which the state or county correctional agency is subject.
JONATHAN SKRMETTI
Attorney General and Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
JANET M. KLEINFELTER
Deputy Attorney General
Requested by:
Honorable Kerry Roberts
State Senator
425 Rep. John Lewis Way, Suite 730 Cordell Hull Bldg.
Nashville, Tennessee 37243