Prison Legal News Prevails in Tennessee Public Records Suit Against CCA

In 2002, the Tennessee Supreme Court ruled that a private company which performed services that were “functionally equivalent” to those provided by a public agency had to comply with the state’s Public Records Act, T.C.A. § 10-7-501, et seq. See: Memphis Publishing Company v. Cherokee Children & Family Services, Inc., 87 S.W.3d 67 (Tenn. 2002).

This ruling was not tested against the nation’s largest private prison company, Nashville-based Corrections Corp. of America (CCA), until CCA officials refused to produce public records requested by PLN associate editor Alex Friedmann in April 2007.

PLN had asked for records related to successful litigation against CCA, including verdicts, settlements and judgments, as well as “reports, audits, investigations or other similar documents which found ... that CCA did not comply with one or more terms of its contracts” with government agencies.

After CCA declined to produce the requested records, PLN filed suit in Davidson County Chancery Court on May 19, 2008, seeking to force CCA to comply with the state’s Public Records Act pursuant to the ruling in Cherokee. “Public agencies cannot contract away the public’s ability to review records that otherwise would be publicly accessible under the state’s open records law. The public’s right to know is not delegable to private corporations,” said PLN editor Paul Wright.

Chancellor Claudia Bonnyman ruled in PLN’s favor on July 29, 2008 following an evidentiary hearing. The court found that CCA’s operation of prisons and jails on behalf of government agencies meant the company performed a “functionally equivalent” public service within the meaning of Cherokee, and thus had to comply with public records requests.

The court rejected CCA’s argument that it did not receive “funding” from the state but merely received contractual payments for services rendered. The court also rejected CCA’s position that the firm only received about 10 percent of its income from public agencies in Tennessee. As PLN’s attorney pointed out, almost all of CCA’s income was derived from government sources through taxpayer funds, including 100% of its operations in Tennessee. The records that PLN had requested related solely to the company’s Tennessee facilities.

With several limited exceptions, Chancellor Bonnyman held that CCA must produce the requested records – including verdicts, settlements and damage awards in lawsuits filed against the company that were not sealed by court order. “CCA has fought tooth and nail to prevent the media and members of the public from obtaining information about the company’s operations, and has been successful until now. We will now be able to see what they’ve been hiding,” said Friedmann. CCA has stated it will appeal the ruling.

PLN was well represented by Andy Clarke of the Memphis law firm of Borod and Kramer, P.C. See: Friedmann v. CCA, Chancery Court of Davidson County, Tennessee, Case No. 08-1105-I.

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