As consumers we upgrade our operating software and smartphones to the next version because we know that technology changes. We adapt so we’re not left behind without access to information. As citizens we expect our lawmakers to do the same – to upgrade our laws so we’re not left in the dark.
Almost forty years ago lawmakers began passing transparency 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. This week, In The Public Interest released a new report detailing how private contractors are evading oversight by exploiting loopholes in current state sunshine and open record laws.
Most state laws do not address the new practice of privatizing government services. The explosion of government contracting in the last decade has exposed a key weakness: companies now use a strategy that rests on re-classifying once public information as proprietary and private. A pattern of cases detailed in the report illustrate how claims are challenged and dismissed by invoking the corporate shield of “work product.”
When municipalities shift control from public institutions to private sector companies – they risk losing access to the most basic information needed to govern and steward public funds.
• In South Carolina, the Jenkinsville Water Company, a private utility, failed to pay state employee payroll taxes, lost millions of gallons of water, and could not account for tens of thousands of dollars. Concerned about mismanagement of funds, residents and journalists submitted open records requests seeking copies of financial records, including audited financial statements and budgets. But the company refused to comply.
• January 2012, a Tulsa technician who worked for a private contractor, Paramedics Plus, caused a fatal car accident and was charged with negligent homicide. The driver had a history of problems on the road. He had previously been convicted of criminal driving charges, including driving while intoxicated, changing lanes unsafely, speeding, and transporting an open container. The Tulsa World requested personnel information about drivers however Paramedics Plus refused to cooperate, arguing that its records are not subject to the state open records act.
• In the face of allegations of misconduct, an advocacy organization requested workforce information through the Freedom of Information Act (FOIA) from Immigrations and Customs Enforcement (ICE) to evaluate safety concerns at a correctional facility. They asked for personnel information at the facility run by the private Cornell Corrections company including the number of employee positions at the facility, the annual employee turnover rate, the number of employee terminations and resignations, and reasons for those employee actions. Following a “comprehensive search of files,” ICE reported that it was “unable to locate or identify any responsive records.”
• When New York City’s Housing Authority (NYCHA) entered into a $10 million contract Boston Consulting Group (BCG), journalists were unable to obtain reports and other documents produced by the contractor. City Limits, a non-profit investigative journalism organization, requested information about the details and nature of the contract, including the services contracted for and a list of policy recommendations that BCG had made to NYCHA. The request was denied, as NYCHA stated that it considers BCG’s advice to be private.
Fortunately, like upgrading technology, fixing the laws can be done effectively when advocates start with the problems. First, the federal, state and local governments should strengthen existing open records laws to expand the reach to government contractors and tax subsidized work. Next, they should repeal laws that intentionally reduce transparency and cloak contracts in secrecy. Finally, government agencies should increase and expand online disclosure of contracting-related information.
We need floodlights not flashlights to ensure that government contractors answer to the stakeholders of our democracy not corporate shareholders.
Conducting oversight without knowing the full universe of private contractors is near impossible. At a minimum, lawmakers should insist upon online disclosure of private contractors. State and municipal bodies should publish a complete list of contracts online with identifying information, including dates of contract, contracting agency, contracting amount, and scope of work.
“Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives,” President’s Madison’s message in 1822 is relevant today as transparency continues to be at the core of a functioning and healthy democracy.
A copy of the report can be found at www.inthepublicinterest.org.
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