Privatization Threatens Open Government

On July 4, 1966, President Lyndon Johnson signed the Freedom of Information Act (FOIA) into law, establishing the public’s right to access to government information. Surprisingly, Republican Congressman Donald Rumsfeld helped deliver Republican votes to pass the groundbreaking law.

Since then, state governments followed suit and began passing open government laws across the country to ensure the public would have “sunshine” and access to information about the way public services and tax dollars are managed.

But the laws are out of date and need an overhaul. The explosion in the use of government contractors at every level of government — from local trash services to security contractors in Iraq – has exposed weaknesses in sunshine and open record laws.

In some cases, conservative governors are even trying to weaken existing transparency requirements to make it easier to privatize. Florida Governor Rick Scott’s failed proposal to privatize prisons in eighteen counties included a provision to eliminate the requirement for a cost-benefit analysis before moving ahead with the deal. Coincidentally, Florida-based GEO Corporation, one of the largest private prison companies, is a major contributor to GOP campaigns in the state.

Under existing law private contractors in states throughout the country are evading oversight by exploiting loopholes in transparency protections. Most existing state laws don’t pierce the corporate veil and now policy makers, journalists and advocates no longer have access to basic financial, performance and workforce information that is essential to government accountability.

For example:

In South Carolina, the Jenkinsville Water Company, a private utility, refused to comply with requests for information after they had failed to pay state employee payroll taxes, lost millions of gallons of water, and could not account for tens of thousands of dollars.

In Oklahoma, a private emergency service contractor, Paramedics Plus, refused to disclose the driving records of ambulance drivers after one who had caused a fatal car accident was found to havebeen convicted of criminal driving charges.

The Immigrations and Customs Enforcement (ICE) was “unable to locate or identify any responsive records” about personnel at an immigration detention facility operated by Cornell Corrections after allegations of misconduct surfaced.

In all these cases, current open records laws would have produced the information if government agencies had been providing the services or operating the facilities.

A few states are leading the way. Connecticut law now require large contracts to be covered by the state’s freedom of information act. Minnesota requires contractors to makes public any government data that the contractor”creates, collects, receives, stores, uses, maintains, or disseminates.”

Most states have not yet followed their lead. In an era of government by contract, federal, state and local governments should strengthen existing open records laws to expand the reach to government contractors.At a minimum,a complete list of contracts and contractors should be online. Handing over control of public services to private contractors shouldn’t mean giving up the public’s right to know.

For more information on the effects of government contracting and privatization on our access to public information, check out our new report “Floodlights Instead of Flashlights: Sunshine Laws Out of Step with Government Contracting Leaves Public and Lawmakers in the Dark”.