TRANSPARENCY TUESDAY: Colleges can contract out their services — but they can’t contract away public disclosure

With cash-strapped government agencies seeking to contract functions out to private vendors and shrink the public workforce, the “savings” sometimes include economizing on transparency.

Journalists seeking information on how public services get delivered are frequently told that the corporate contractors who provide “privatized” government services need not honor requests for public records.

Strictly speaking, most state open-records laws apply to documents that are kept, created or used by government agencies in the performance of their duties. Since a lawn-care service or architect is a private company, states at times insist that privatized functions are exempt from the disclosure duties that would apply if the same service were provided by government employees.

For example, a state-created authority in California is resisting calls from public watchdogs to turn over financial records showing how some $100 million was spent cleaning up a mothballed Army base. The Fort Ord Reuse Authority claims that the records are exempt from disclosure under the California Public Records Act, because they belong to the private entities that conducted and insured the cleanup.

The Authority contends that it has released ample documentation to reassure the public that its money is accounted for. But a citizen activist group filed suit March 5 under the PRA, demanding access to the actual invoices and other original source documents underlying the Authority’s summary reports.

Courts have had no difficulty seeing through the veneer of a private corporate structure and ordering disclosure of records that pertain to essential government functions — even functions performed by an outside vendor.

In 1998, a Florida court ruled that Barnes & Noble — which operated bookstores at two South Florida campuses under contract with the host universities — was required to honor a public-records request for copies of forms that professors completed to order textbooks for their courses:

[T]he forms are completed on behalf of the universities by the instructors, in connection with university business — the selection of the official textbooks for the upcoming courses, a decision that must be made by the universities and memorialized in some fashion so that the course can be taught with all the students and the instructor using the same materials. The documents are also prepared for the purpose of communicating knowledge to the on-campus bookstore so that the proper books will be made available to the persons who need them: ?the universities’ instructors and students. Thus the documents are made in connection with official business, for memorialization and communication purposes. They are public records.

In a nearly identical case, a New York court likewise decided in 1995 that book lists gathered by Barnes & Noble under contract with a public university were public records subject to New York’s Freedom of Information Law.

New York’s open-records law, which is typical of many, entitles the public to records “kept” or “held” for the benefit of a government agency, not just those in the physical possession of the agency.

In that case, Encore College Bookstores, Inc. v. Auxiliary Service Corp. of the State Univ. of N.Y., there was an added layer of separation: The contract was actually between the bookstore operator and an “auxiliary authority” affiliated with SUNY, not the college itself. But the New York court concluded that the contract was, in function if not in form, a contract with a government agency “to ensure that the campus bookstore is adequately maintained,” an essential university function. Therefore, the book lists were public records.

Because each state’s open-records act is worded slightly differently, courts have developed different standards for deciding when documents created or held by a private contractor are in fact government records that must be gathered and produced on request.

Some courts look simply at whether the records document a publicly funded function; others look at whether the private contractor is providing a central or essential government service (such as public safety or emergency medical response). Still others have focused on how the records are used — whether the documents are kept purely for the internal use of the contractor, or are shared with and used by the public agency that pays the bills.

The common denominator is that almost never will the “private” incorporation of the records-holder be conclusive. If the documents memorialize the spending of taxpayer money, then they almost certainly are subject to public disclosure no matter who owns the file cabinet — or the server — where they are kept.