Privatized Government Functions and Freedom of Information: Public Accountability in an Age of Private Governance

Article excerpt

In recent years, privatization has touched nearly every area of public life. Increased privatization efforts have posed increasing problems for public access to governmental records when a governmental function has been privatized. Records long open to public inspection now are being created, maintained, and controlled by private businesses often at odds with the very purpose of public records laws. The authors examine this problem and offer possible solutions to the problems caused by this increasing trend.

Introduction

In November 1996, two convicted sex offenders scaled a prison fence outside Houston and made it 200 miles, nearly to metropolitan Dallas, before they were apprehended. The state of Texas could do nothing to punish them for escaping; in fact, state authorities had no idea the men were serving time in Texas. The escapees, convicted in Oregon, had broken out of one of Texas's thirty-eight privately operated prisons.l

In Texas and elsewhere, private prisons reflect the increased political pressure on federal, state, and local governments to cut costs and streamline operations that places renewed emphasis on the concept of privatization.2 A dizzying array of governmental agencies has engaged private entrepreneurs to perform governmental functions on a for-profit basis.

In recent years, privatization has touched nearly every area of public life. In addition to prisons,3 hospitals,4 schools,5 development agencies,b film commissions; and dog-racing tracks8 have been the focus of privatization efforts. Overlooked in the rush to privatization is the threat posed to public access to governmental records. Records long open to public inspection now are being created, maintained, and controlled by private businesses often at odds with the very purpose of public records laws.

In the past few years, businesses operating privatized governmental functions have attempted to deny the public access to a wide variety of records. For example, a private contractor transporting pupils to and from public schools in Atlanta unsuccessfully fought a request for the personnel records of its bus drivers-specifically criminal histories and driving records.9 In San Gabriel, California, a waste-disposal company contracted by the city filed suit against the municipality in a failed attempt to halt release of financial records used to evaluate a rate increase that city officials granted to the company.lo Such disputes are likely to increase as the privatization trend grows.

This article discusses the various types of privatization, examines the current status of public records statutes with regard to privatized records, and analyzes one state's struggle to determine when the records of a private enterprise doing business for the state are subject to disclosure under public records statutes. The focus of the article is upon true privatization - cases in which private actors take on governmental functions - not simply cases in which private enterprises perform some narrow duties for government agencies. The authors conclude that current statutory definitions, combined with the inflexibility of judicial standards used to draw the line between public and private enterprise, may in some cases frustrate the public's ability to scrutinize the activities of private actors performing services for the state. To safeguard the public's right to monitor the functions of government, the authors propose that courts adopt an approach borrowed from the constitutional doctrine of state action. The proposed "public function" approach would bring some measure of order to an otherwise unsettled area of public records law by embracing the notion that certain privatized activities should be treated as "public functions," despite their private appearance.

The Move toward Privatization

The notion of private corporations providing governmental services is generating tremendous interest at all levels of government in the United States. …

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