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.
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). Many of the commentators who are for the private corporations being subject to FOIA regulations argue that although the letter of the law does not obligate the private corporations to divulge their information, the spirit does in the sense that they utilize public funds and thus should be subject to public scrutiny.
They further 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). Those that argue to the contrary are fixated on the letter of the law which omits private corporations not classified as agents from divulging their information.
There should not be any difference in guidelines between privatization of traditional and non-traditional services 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.
Regardless of how resource intensive the services are, they should still be subject to regulation in the same way as the public reserves the right to all public information pertinent to them.
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 on allegations of underhand deals in the expedition of their contracts.
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 non-profit 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). (This is an example of a contractor under scrutiny by watchdog groups)
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 them as being agency records unless the FOIA exempts them from disclosure (O’Connell, 1985). (This is an alternative that the government contracting agent can implement)
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? Government Information Quarterly, 5(2), 147-154.
Cásarez, N. (1995). Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records. University of Michigan Journal of Law Reform, 28, 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, 52(1).
Hall, S. (1978). What Is a Record? Two Approaches to the Freedom of Information Act’s Threshold Requirement. 78 BYU L. RE, 408-427.
Hoffman, I. (1998). DOE Fights Records’ Release. ALBUQUERQUE J. Web.
Mays, S. (1995). Privatization of Municipal Services: A Contagion in the Body Politic. DUQ. L. REV, 34, 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.
Rivard, B. (1997). 30th Anniversary of Freedom of Information Act Is Time to Reflect. ASSOCIATED PRESS POL. SERV. Web.
U.S. Dep’t of Justice v. Tax Analysts. (1989). 492 U.S. 136, 144-45.