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

The opinion concludes that a private prison contractor operating a state, county, or municipal correctional facility is the functional equivalent of a government correctional agency for purposes of § 38-10-102. Under subsection (e), the in-custody death record kept by such a contractor is open for public inspection on the same footing as the record of the government agency it serves.

If you are a private prison contractor or county jail run by a private operator

The opinion concludes that a private company operating a correctional facility under contract with the Tennessee Department of Correction or a local government is subject to the same § 38-10-102 requirements as the government correctional agency. Under subsection (a) that includes submitting reports of activities in connection with law enforcement and criminal justice, including uniform crime reports and reports of law enforcement-related deaths, to the TBI. Under subsection (e) it includes maintaining a record of in-custody deaths that is open for public inspection. The opinion characterizes this as a consequence of the functional-equivalency doctrine, not a new obligation it creates.

If you are a county or municipal official contracting out correctional services

The opinion states that facilities operated by a private entity under contract with a local government, including those subcontracted under the County Correctional Incentives Act of 1981, are likewise operated as the functional equivalent of a governmental agency and are subject to § 38-10-102. It treats this as a matter of law flowing from the contracting relationship.

If you are a family member of someone who died in custody

The opinion addresses § 38-10-102(e), which requires the responsible agency to maintain a record of deaths of individuals in custody that is open for public inspection. Under the opinion, this requirement reaches a private contractor operating a state, county, or municipal correctional facility. The opinion does not address how a denial of access would be challenged.

If you are a Tennessee legislator

The opinion answers only the question posed: whether § 38-10-102 reaches a private prison contractor. It reaches that conclusion by applying the functional-equivalency doctrine that Tennessee courts have used for "contracted-out" governmental services. The opinion does not opine on the doctrine's application to other statutes or programs.

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: Does the opinion cover records other than TBI reports and the in-custody death record?
A: No. The opinion is limited to § 38-10-102, which covers the TBI reporting requirement in subsection (a) and the in-custody death record in subsection (e). It does not address other categories of records.

Q: Does the obligation depend on what the contract says?
A: The opinion grounds the obligation in the statute as applied through the functional-equivalency doctrine, not in the terms of the contract. It does not discuss contractual provisions.

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