Tennessee Transparency: Goldwater, Beacon Center Fight For Public Records Accountability

The Tennessee School Boards Association (“the TSBA”) is an organization whose membership is composed of local school boards from across the state. Since 1953 the Tennessee State Legislature has recognized the TSBA as “the organization and representative agency of the members of school boards of Tennessee.” For most of its history the vast majority of its funding has been drawn from public sources (including a contract with the state) and it provides state-authorized training events for its members.

Despite this, as of 2019 the TSBA claimed it was not subject to Tennessee’s open records law.  The Beacon Center of Tennessee brought a lawsuit and in 2020 the Davidson County Chancery Court held that the TSBA was required to comply with the open records law.

Over the past few years, circumstances have changed. Following a 2022 statutory amendment, the TSBA no longer has a contract directly with the state and it is no longer the sole provider of trainings required by the State Board of Education. It still gets about 90% of its funding from public sources, but it argues that these are “membership service fees” rather than government grants and that courts should consider it a “private membership organization” rather than the equivalent of a public agency.

The TSBA’s new position crystalized recently when a citizen requested records relating to the TSBA’s membership, funding, legal services, and lobbying activity. Rather than produce the records, the TSBA sued the citizen, effectively asking the court  to reverse the 2020 judgment the Beacon Center had won.

The Beacon Center followed up with its own new request for public records. The TSBA claimed that it was no longer subject to the open records law, but it nevertheless agreed to produce some of the requested records in an attempt to stave off litigation.  In other words, the TSBA is hoping to game the system in a way that would allow it to fight out the legal issue on its own chosen ground while avoiding (presumably more difficult) litigation against the Beacon Center.

The lawsuit contends that circumstances have not materially changed and that the TSBA is as much the equivalent of a governmental entity today as it was in 2020. Where an organization uses taxpayer money and conducts public business, citizens have a right to know what that organization is doing to drive public policy and how it is spending that money.

The Goldwater Institute is partnering with the Beacon Center on this case to reaffirm these bedrock principles of government transparency. The courts were correct to hold that TSBA was subject to the Tennessee Public Records Act in 2020 and they should apply the same logic and reach the same result in the present day.

The TSBA is but one example of a type of ostensibly “private” organization whose membership is made up almost entirely of government officials and that works to influence the policies and practices of government officials. There are similar organizations in every state. A victory of this sort in Tennessee can become a template for similar litigation in other states.