Document Type

Article

Publication Date

2019

Publication Citation

71 Administrative Law Review 437 (2019)

Abstract

Modern government is comprised of a complex admixture of public and private actors. From the provision of public services, to growing movements to sell off national parks, to the very task of legislating, the public is unlikely to encounter an area of government that is untouched by privatization. But public transparency mechanisms, including the seminal Freedom of Information Act (FOIA), rely upon an outdated, rigid conception of the private-public dichotomy. They fail to provide the public with any meaningful access to what we call the “private government,” which includes the private actors who bear an increasing responsibility for performing governmental functions. A paradigm shift is required, from a focus on who creates or possesses a document, to the public impact and importance of the document.

We propose to turn the primary tool of privatization—the private law contract—into a mechanism for injecting public oversight into contractual delegation. Specifically, we outline a framework for a statute which would require agencies to retain ownership of information created pursuant to a contractual relationship or to justify, ex ante, why the public interest in public access is outweighed by other considerations. The agency-owned records would be subject to the full panoply of ordinary FOIA provisions and any decision to exempt records from the ownership requirement would be subject to judicial review. Our proposal mitigates some of the problems inherent in asking private entities to open their books to FOIA scrutiny and properly places the onus on public agencies to fulfill their roles as protectors of the public.

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