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Privatization: Its Impact on Public Record Access

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As the availability of public money has diminished, driven in large part by decreased taxes and increased deficit spending, governments have turned to ways of streamlining government services. The move towards greater efficiency has often led legislators and policymakers to explore using private businesses to perform functions that were once thought to be quintessentially governmental. This practice of “contracting out” has led to concerns about how the privatizing of government services may affect the statutory right of access expressed at the federal level in the Freedom of Information Act and at the state level by a variety of open records laws. While Connecticut is one of the only jurisdictions to actually legislate to protect access to such records, the issue has come up repeatedly in case law throughout the United States and some state statutes have specific provisions to capture such entities that might otherwise fall through the cracks.

The threat privatization poses to access to public information can have real world consequences. Suppose you are concerned about the performance of the bus driver that carries your child to school, or even about the maintenance of the buses themselves. When you ask the school for information, you may find the answer is that the operation of school buses has been contracted out to a private company and that information is not subject to disclosure under the open records law. That situation happened in Georgia. In Hackworth v. Board of Education, 447 S.E. 2d 78 (1994), the court concluded the school board was responsible for hiring bus drivers and that the personnel records of the bus drivers were public records, even though they were in the possession of the private company operating the buses on behalf of the school board.

This report will survey the state of the case law and examine some of the policies governments have adopted for bringing such private or non-profit entities under access laws as well as discussing some of the obstacles to access posed by privatization.