Countering the Privatization of Public Records: How Trade Secrets, Purported Competitive Harm and Third-Party Interventions Keep Government Business in the Dark

Abstract

As cities and regions were climbing over one another with bids to become the location of Amazon’s new headquarters in 2018, some local governments began offering a new perk: the cover of darkness. The two winning bidders, New York and Northern Virginia, both offered aid in dodging open records requests made under their states’ freedom of information laws, tipping off Amazon to potential requests so the company could intervene in court to slow or halt legitimate requests for public information. These concessions represent a growing challenge to open records laws. As governments engage in public-private partnerships or otherwise outsource government work to private companies, they have devised ways to shield the public’s business from the traditional level scrutiny offered by citizens and journalists, watchdogs of the public trust.

In this article, we propose rethinking public oversight of private vendors doing government business. First, we explore the historical and legal background of open records laws to demonstrate the core purposes behind their enactment, and how that purpose has transparency of government contracts at its center. Next, we look at how overly broad interpretations of trade secrets and competitive harm exceptions undermine this core purpose, especially when paired with procedural advantages that allow private businesses to intervene in open-records disputes as a third party. Finally, we demonstrate why public-private collusion to sabotage transparency demands a reinvigorated approach to the quasi-government body doctrine, which has been sharply limited for decades.

Keywords: Freedom of Information, Public Records, Trade Secrets, Quasi-Government, FOIA, Competitive Harm