1
Memorandum To: From: Date: Re:
TBD Jetmir Troshani Date goes here
FOIA and the Privatization of Government The Freedom of Information Act was signed into law with very noble ideals at its
behest. However, the privatization of functions of the government has constrained the functionality of the law as it was originally envisaged. One might argue that private corporations responsible for carrying out contracts that formerly feel on the government are competing in an environment where profits are key (Cásarez, 1995). Therefore, the vetting processes of these corporations take care of the public trust issue as they ensure that those awarded the contracts are the most qualified and transparent. Essentially, the privatization of former government functions translates to the movement of responsibility from public agencies to private companies. The letter of the law does not obligate private corporations to divulge their information in any manner (Mays, 1995). Therefore, private companies, albeit carrying out public functions, are under no obligation to share information under FOIA and FOIL. Other commentators argue that whereas the letter of the law does not obligate the private corporations to divulge their information, the spirit of the law does. Many of them assert that the courts have been the hindrance to the implementation of FOIA guidelines in private companies since they give a shallow and narrow meaning of what was envisaged by “agency” and “agency record” under the FOIA (Hall, 1978). The fact that some private corporations utilize public funding should compel them to surrender their records to the extent which the public funding covers (Rivard, 1997).
1
2
There should not be any difference in guidelines between traditional and nontraditional services privatized by the government. This is because, regardless of the magnitude of the service provided, there is the aspect of public funding (Feiser, 1999) and this empowers the public with the right to the information possessed in the provision of those services to the extent of public funding. In January 1998, nuclear watchdog groups wanted to review the records that were held by contractors who were under the Department of Energy (DOE) in the US which is the largest contracting agency for the federal government. The DOE however denied the groups access to the records citing that the contractors were private companies that were not obligated to hand in their records under the FOIA (Hoffman, 1998). The DOE was contracting over 80% of its work to private corporations and nonprofit organizations. As such, such an action that denied access to records undermined the credibility of the government´s accountability (Bunker & Davis, 1997). The consensus was that some of the documents that were required were not agency records and as such could not be released under FOIA ultimately denying the public access to pertinent information (Caponio & Geffner, 1988). A determination that a company is not an agency or that certain documents are not agency records does not end enquiries. Contracting departments of government can have prior agreements with the contractors that the contractor-generated records be part of the agencies records. In the case of U.S. Dep’t of Justice v. Tax Analysts (1989), the court ruled that it was not sufficient that the documents be produced by the agency or are in the position of the agency at the time of the FOIA investigation but rather that the documents be relevant to the case in point. In this case, the agency can present
2
3
them as being agency records unless the FOIA exempts them from disclosure (O’Connell, 1985).
References Bunker, M. & Davis, C., (1997) “Privatized Government Functions and Freedom of Information: Public Accountability in an Age of Private Governance.” Federal Communications Law Journal 1(7) Caponio, J & Geffner, J., (1988) “Does Privatization Affect Access to Government Information?” 5 GOV’T INFO. Q. 147 Cásarez, N., (1995) “Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records.” 28 U. MICH. J.L.REFORM 249 Feiser, C., (1999) “Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities under Federal Law.” Federal Communications Law Journal Vol. 52 No. 1 Hall, S., (1978) “What Is a Record? Two Approaches to the Freedom of Information Act’s Threshold Requirement.” 78 BYU L. REV. 408, 427 Hoffman, I. (1998) "DOE Fights Records’ Release.” ALBUQUERQUE J., Jan. 23 Mays, S., (1995) “Privatization of Municipal Services: A Contagion in the Body Politic.” 34 DUQ. L. REV. 41, 43 O’Connell, M., (1985) “A Control Test for Determining “Agency Record” Status Under the Freedom of Information Act.” 85 COLUM. L. REV. 611, 614
3
4
Rivard, B., (1997) “30th Anniversary of Freedom of Information Act Is Time to Reflect.” ASSOCIATED PRESS POL. SERV., May 12 U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989)
4