Monday, February 28, 2011

Tennessee Supreme Court Holds Records of IMEF Not Subject to Tennessee Open Records Act

The Tennessee Supreme Court held that because IMEF is neither the functional equivalent of a government agency nor subject to the requirements of the Public Records Act pursuant to Tennessee Code Annotated section 10-7-503(d), IMEF is not required to make its records available to the public. The supreme court reversed the judgment of the lower courts.

Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act.  The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in Hamilton County Chancery Court. Chancellor Peoples held that the records were available because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed. The Supreme Court reversed and dismissed the case.

In addition to providing that government records are available for public inspection,the Public Records Act also provides that the records of certain nonprofit entities are available to the public. Tenn. Code Ann. § 10-7-503(d). At issue in this case is whether the legislative grant of access to records of nonprofit entities as provided in Tennessee Code Annotated section 10-7-503(d) applies to IMEF.  Because Chancellor peoples made a finding of fact that IMEF has no full time employees, the supreme court found that the less than two full time employees exemption applied.

What is instructive to lawyers, civil and criminal, plaintiffs to prosecutors, is that an open records request made to a nonprofit must consider two questions. First, is the nonprofit a functional equivalent to a governmental agency; and, second is the nonprofit, as it is organized, subject to the requirements of the Public Records Act? 

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