TRANSPARENCY TUESDAY: “Privatized” government functions are putting the public’s records behind corporate barricades

Records created, held or used by state agencies are (with limited exceptions) supposed to be readily available for the public to inspect, and that includes the records of public schools and colleges. That’s clear. But when a private middleman gets between the state agency and the information, the public’s right of access is much less clear.

Across the country, courts are being asked to decide whether otherwise-public documents become private just because a state agency hires a private contractor to do the agency’s job.

A key ruling is expected later this year from the Minnesota Supreme Court, which heard arguments May 6 in a case involving access to an architectural contract for construction of schools near Duluth, Minn.

Last fall, the Minnesota Court of Appeals ruled that the contractor, Johnson Controls, was subject to the state’s open-records act because it was performing a “governmental function” in overseeing a $79 million school construction and renovation project. The court ruled 3-0 that, because the school district delegated its legal responsibility to furnish school facilities to Johnson, Johnson was required to turn over records created in carrying out that governmental duty.

Johnson appealed to the state Supreme Court. Its ruling will be influential even beyond Minnesota, because many states have laws similar to Minnesota’s Government Data Practices Act that extend beyond government agencies to private entities that perform duties delegated to them by the state.

This “delegation” argument was the primary basis of a lawsuit against a North Carolina university for access to arrest reports in the hands of a private university’s police force — a police force exercising state arrest authority under state supervision. Although the case ended in a deadlock that left the issue unresolved, similar legal challenges are expected in other states.

Louisiana State University is hiding behind two layers of privatization to conceal information about its recently completed presidential search. Lawyers for LSU contend they needn’t release the names of candidates considered for the presidency because the entire process was conducted by a private headhunting firm under a contract with the privately incorporated LSU Foundation. Two state-court judges have reached split rulings on the issue. LSU’s governing board voted May 30 to appeal the ruling that went against the university, leaving it for a state appeals court to resolve.

Schools and colleges are a frequent source of friction over access to the records of private contractors, because so much of their work is “outsourced” to third parties. But the need for clarification over access to contractors’ records is in no way limited to the campus.

In Vermont, a publishing company and the ACLU are suing for access to records held by a private contractor, Corrections Corporation of America, that provides housing for state-sentenced inmates. The lawsuit, filed May 31 in Vermont Superior Court, seeks records of settlements in lawsuits against Corrections Corp. by Vermont inmates — records that unmistakably would be subject to disclosure if held directly by a state agency. Lawyers for the publication, Prison Legal News, say the documents are needed to inform the public about injuries and deaths of people in state custody.

Requesters who need information from state agencies should be undeterred by the involvement of a private middleman. If the activity is paid for with taxpayer dollars — and particularly, if it is a “core” governmental service such as public safety — there is a strong argument for access that most courts will favorably entertain.

To maximize the chances of a favorable response, requesters should always remember to file their freedom-of-information letters directly with the government agency itself. Even if the agency is not the original creator of the documents, they still should be subject to disclosure if they are maintained by the agency as part of its oversight of the contractor’s work.