Privatizing Government Secrecy p.

By: Mark Fitzgerald

As governments contract out more responsibility to private
business, public access to this information is being squeezed
AN AGE-OLD government impulse ? to keep its business as secret as possible ? is finding renewed life in an increasingly trendy government practice: privatization.
As governments local, state and federal contract out more of their responsibilities to private business in the name of cost savings and efficiency, public access to government information is being dramatically squeezed, freedom of information activists are warning.
"When you are dealing with private businesses doing public business, you are losing access," said Paige St. John, an environmental reporter for the Detroit News.
St. John and other journalists and activists recently gathered in Troy, Mich., for what is believed to be the first seminar exploring the effect privatization is having on FoI access. The session was sponsored by Great Lakes Region of Women in Communications Inc. (WICI).
The journalists and speakers representing both proponents and opponents of privatization pretty much agreed on one point: Whatever its merits, privatization as it is practiced these days is growing dramatically, and often as dramatically is shutting out the public.
Privatization raises "very serious public policy issues," said Sheila Strunk, legislative chairwoman for United Auto Workers Local 6000, which represents about a third of Michigan state workers.
"It is a question of how your tax dollars are spent. It is a question of potential for fraud, corruption and abuse. It is a question of public access to services," said Strunk, an opponent of Michigan Gov. John Engler's enthusiastic campaign to privatize a wide variety of state services.
Journalists in particular complain that privatization has become a convenient way for government to stop providing public information.
"What typically happens is a reporter goes to the [government] agency to ask about something. The agency says, 'I don't know anything about that. Ask the private business,' and the business says, 'I don't have to tell you that, ask the government,' " said Tim Richard, chairman of the Michigan Freedom of Information Committee Inc.
While privatization is booming ? in Michigan, for example, Gov. Engler has proposed privatizing dozens of services ranging from vegetable inspection to veterans hospital care ? many state FoI laws actually hamper access to information about privatized operations.
Michigan's FoI law is a typical example.
For one thing, the law requires the government to disclose only information the government requires from a private business.
"The press, and therefore the public, can send FoIA [requests] only to government agencies, and not the private businesses themselves. So you can get only what the government itself wants to get," the Detroit News' St. John said.
If a journalist is interested in more information, he or she is pretty much out of luck, the UAW's Sheila Strunk said.
"The FoIA law specifically says [state agencies] are not required to create records to fulfill FoIA [requests]," Strunk said.
In fact, far from requiring information, Michigan in some of its privatization contracts expressly forbids private businesses from communicating in writing with anyone about the service, Strunk said.
"The system is designed to thwart anyone's attempt to discover what is going on," she said.
In Kalamazoo, Mich., citizens discovered that privatization effectively blocked public information about the most basic process of democracy: the ballot box.
Kalamazoo County privatized operation of voting machines and registration several years ago.
Last summer, Kalamazoo Gazette political columnist Charlotte Channing reported a "snarl of mistakes, many of them traced to [private contractor] Doubleday Bros. & Co., [which] brought the integrity of the election process into question."
Kalamazooans "learned that Doubleday had absolutely no legal obligation to tell Kalamazoo County taxpayers how the snafus ? the third in several years ? had happened," Channing wrote.
This is not simply a Michigan problem, either.
In Massachusetts, for example, the state contracted out to a private firm its hot line for complaints about elderly health-care services.
When a local television news program asked to see the files of complaints, the private business refused to permit access.
Ultimately, the Massachusetts state FoI ombudsman ordered access to the files, reasoning that the complaints would eventually be turned over to the state anyway.
However, Massachusetts' director for the division of public records, Timothy B. Gassert, noted in a 1991 article in the biweekly FoI newsletter Access Reports that public access to other information about the company was by no means assured even in a state with as strong an FoI law as Massachusetts.
"It was argued that it was unfair to subject a private entity to public scrutiny," Gassert wrote. "It was also argued that it is impossible to draw the line in deciding which records should be available.
"For example, should the public have access to minutes of the board of directors meeting or to balance sheets?"
At times, the reluctance of a private firm to reveal any information about itself reaches an almost comical level.
"The [U.S. Environmental Protection Agency's] hot line for lead poisoning is run by a private firm. If you call, you can't get the name of the employee who answers the phone, or any comments at all," the Detroit News' St. John said.
Indeed, a surprising amount of information paid for by federal tax dollars is not easily available to the public any more, St. John said.
"Throughout the South, the National Weather Service stations were shut down, [as were] the 800 toll-free numbers for information. [Private firms] have taken the information paid for by the public and put it out on 900 numbers, which you pay for. You dial a 900 number that includes ads," she said.
While cost savings and increased efficiency are the justification for most privatization efforts, sometimes the motivation appears to be secrecy itself.
That could explain the growing numbers of public colleges and universities which are establishing "private" foundations to take over fund-raising efforts.
In recent years, these foundations have been the target of FoI pursuits by many newspapers, including publications in Baton Rouge, La.; Ypsilanti and Dearborn, Mich.; and ? most famously ? Toledo, Ohio.
Last December, the Toledo Blade won an important legal battle when the Ohio Supreme Court declared that the University of Toledo Foundation was a public body required to disclose the names of donors.
In fighting the 1992 request from the Blade, the foundation pulled out all the legal stops, including claims that it was a private body; that its fund-raising methods amounted to trade secrets; and that common-law privacy rights prohibited naming donors.
On its side, the Blade had an unusually strong state FoI law.
"It has few exceptions. It's not . . . patterned on the federal law, with lots of exceptions and more every time the legislature sits," said Blade projects editor Eileen Foley.
The Blade also had on its side an aggressive attitude about FoI requests.
"Our [co-publisher and editor in chief] is John Robinson. His view is no one turns down the Blade," Foley said.
When the records were opened, it was apparent why the foundation wanted to keep things secret: Among other apparent abuses, it had paid $80,000 to the president of the University of Toledo for such expenses as two Jeeps for his wife, dues to three private clubs and a succession of lavish parties.
Privatization does not necessarily mean that public access is lost.
Some states, such as Ohio, have FoI and open records laws that require access. Under Ohio's law, for example, any contract prohibiting a government contractor from disseminating documents would itself be illegal, the Toledo Blade's Foley said.
Also, privatization can actually make information about government services more accessible to the public, argues privatization advocate Charles Van Eaton, an economics professor at Hillsdale College in Michigan.
"Done properly, it doesn't make public officials less accessible. I think, in fact, it makes them more accessible."
That is because a rigorously done privatization effort forces government to look at the real costs and the real range of services it provides, according to Van Eaton, and contracts can be drawn up with strict guarantees of public access, he adds.
However, Van Eaton concedes that public pressure is essential to the process.
"You folks need to really bird-dog these guys. Don't let them get away with [claims the business] is private. It's always public," he said.
Some big privatization efforts are even born in virtual secrecy.
Once again, Michigan provides an example.
The state's Privatization Commission was established by an executive order that envisioned a series of public hearings. However, the commission rejected hearings in favor of written comments.
Despite its low profile, the commission received comments from 400 interested parties. Even then, the UAW's Sheila Strunk complained, the testimony was not read by commission members.
"A secretary took all the testimony and made a one-sentence summary, like 'Opposes privatization of Michigan School for the Blind' or 'supports privatization,' " Strunk said.
Then, too, the commission refused to make any of its working papers available, Strunk said.
"That's privatization," Strunk said, "[Government] doesn't want the public to know what is going on. They want to be able to do this behind closed doors."