Cherokee Agency And The Standard For Disclosure Of Public Records In Tennessee

As statutes go, the Tennessee Public Records Act (TPRA) is fairly straightforward. Under it, "[a]ll state, county, and municipal records shall . . . be open for personal inspection by any citizen of this state[.]" "[T]hose in charge of the records," the act goes on, "shall not refuse such right of inspection to any citizen, unless otherwise provided by state law."

But what happens when a private entity acts on behalf of a state, county, or city? May "any citizen" access its records under the TPRA? Last month, in a unanimous opinion, the Tennessee Court of Appeals answered "no," at least in certain circumstances. This opinion has rippled throughout the state because it redefines the limits of Cherokee agency—that is, the point at which a private entity becomes "the functional equivalent of a governmental agency" and, thus, open to public scrutiny. The Tennessee Supreme Court announced this standard in 2002 in Memphis Publishing Company v. Cherokee Children & Family Services, Inc., holding the following:

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 [TPRA] guarantees that the entity is held accountable to the public for its performance of those functions.

Under Cherokee, courts consider the totality of the circumstances in each case, and no single fact is dispositive. The initial burden of proof is on the person who claims that a private entity might as well be a government agency. Four factors guide a court's inquiry:

1. Whether and to what extent the private entity performed a governmental function;
2. The level of the private entity's government funding;
3. The extent of the government's involvement with, regulation of, or control over the private entity; and
4. Whether the entity was created by legislation or previously has been held open to public access by law.

The Court of Appeals announced its July ruling on Cherokee agency in Memphis Publishing Company v. City of Memphis. There, a local paper requested the applications of all candidates for the position of city police director. But the applications had been handled and processed by a third party, a nonprofit association of police chiefs, and both the association and the city refused to disclose them on that basis. The paper subsequently sued, and the Shelby County Chancery Court ordered the city and the association to disclose the applications. According to the court, the applications were public records under the TPRA.

Reviewing that decision de novo, however, the Court of Appeals disagreed. As to the first factor, Judge Richard H. Dinkins, writing for the court, explained, "[T]he services performed by [the association] in identifying potential candidates . . . do[ ] not equate to performing a governmental function." Instead, the court held, "[t]he governmental function here is the hiring of the director of police, and this function was never delegated or assigned to the [association]." The Court of Appeals also found persuasive the facts that less than one percent of the association's annual revenue came from its executive search service; that the city did not control the association's performance "in any way"; and that the association, a Virginia non-profit corporation, was not created by Tennessee law and never, in any jurisdiction, had had its executive search records legally determined to be public records. And it concluded that the TRPA's use of the term "chief public administrative officer" did not include the position of police director.

Private entities now have a roadmap for shielding their records from public scrutiny when they work with governmental agencies. Under Cherokee, a working relationship with state or local government alone does not invite such scrutiny. Only when private entities both perform public functions and satisfy the remaining Cherokee factors will the broad mandate of the TPRA require the disclosure of their records.

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