Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities under Federal Law
Feiser, Craig D., Federal Communications Law Journal
This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the [n]ation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.(1)
With this statement over thirty years ago, President Lyndon B. Johnson signed the Freedom of Information Act (FOIA)(2) into law. Although the Act had lofty goals, neither the President nor Congress could have realized, in 1966, the problems that would result once the Act was applied to the myriad of government operations. One of these problems, especially important since the 1980s, is whether to apply the Act to private entities.(3) This issue is important because, as government agencies turn to private entities in order to function more efficiently,(4) courts have had to deal with FOIA requests for information relating to the government but created or possessed by entities not explicitly covered under the Act.(5) Debates therefore have developed regarding the benefits and drawbacks of privatization, including its effects on freedom of information.(6)
As privatization of government services continues into the late 1990s, some commentators worry that the desire for government efficiency will cause information that is important to the public to become shrouded in secrecy.(7) Commentators say unless Congress amends the FOIA to ensure that private entities performing government functions fall within its reach, courts must come forward to protect the public's right to know because privatization is affecting a wide variety of services and operations associated with the federal government.(8) These services include prison operations,(9) the National Aeronautics and Space Administration (NASA),(10) medical research,(11) and railroad operations.(12) As the federal government contracts with private entities to handle these services, citizens are finding it very difficult to obtain important information related to the government because these private entities often do not fall under the definition of "agency" in the FOIA.(13) Additionally, the Act does not define the term "agency records," and private entities may not be holding records with a sufficient nexus to the government to qualify as agency records under judicial analysis.(14) Thus, federal government privatization can have a substantial impact on important information that was public while in the government's hands but becomes secret once it is farmed out to private entities.
The purpose of this Article is to discuss what definition of "agency" and "agency record" best protects the public's right to know and retains the spirit of the FOIA in light of the government's privatization efforts. This Article discusses the federal government's privatization efforts and how they have been handled in the federal courts dealing with requests under the FOIA. This Article analyzes the definition of "agency" under the Act, as well as the judicial interpretations of what constitute "agency records," followed by a detailed analysis of the federal court opinions applying these terms to private entities dealing with the federal government. This Article concludes with an analysis of the strengths and weaknesses of the various court approaches, including a discussion of how they square with the stated legislative purposes behind the Act. This Article then suggests an approach that best comports with the spirit of the FOIA and can be applied to federal privatization efforts in the future.
II. FEDERAL GOVERNMENT PRIVATIZATION EFFORTS
Several types of privatization are undertaken by state and federal governments in the United States. For example, the federal government engaged in "load shedding" by cutting social welfare programs and allowing private for-profit or not-for-profit companies to take over the programs.(15) Government subsidies allow consumers to choose private entities through a voucher system, such as in the federal food stamp program. …