Public records and private companies: Tips for requesting records from government contractors

By Rebecca Boone

In Idaho, it’s not supposed to matter who holds government records. The law is clear: A public record is public, regardless of whether it’s in the hands of a government agency or a private company hired to do government work.

Idaho Code 74-102 (13) states, “A public agency or independent public body corporate and politic shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.”

But getting access to those privately held, public records? That can be tricky business.

Earlier this year I sent public records requests to five current and former government contractors. Some claimed they were exempt from the law, some ignored me and some responded as the law requires, by providing me the records within the allowed 10-day time span. Here are some tips I learned along the way:

1.   Make sure both the government contractor and the government agency know what you’re requesting and who you expect to respond. Requests may be delayed if a state agency thinks the contractor is handling the response and vice versa. I recommend sending duplicate copies of the request to both entities, and following up with a phone call to make sure everyone is on the same page.

2.   If you’re requesting records directly from a government contractor, remind them of the terms of the law. Most vendors aren’t as familiar with public records rules as a state employee might be. If you want them to redact information rather than denying the entire request, say so. If you want them to cite the specific exemptions they may claim, let them know up front. Most importantly, include a reference to 74-102 (13). Some contractors I approached weren’t aware of the law.

3.   Back the law up with contract language, when possible. Idaho’s private prison operators are required both by law and by their contract with the Idaho Department of Correction to comply with the public records law. That didn’t stop CCA or MTC from initially denying my requests, but I was able to use the contract language to leverage my position.

4.   Don’t take “No” for an answer. If a government contractor turns you down, ask the government agency to help. Title 74-102 (13) puts the onus on the government – “A public agency … shall not prevent the examination … by contracting with a nongovernmental body.” Both CCA and MTC refused to comply with my public records requests until IDOC Director Kevin Kempf sent an email to the contractors reminding them of the terms of their contract.

5.   If you think you might want a record in the future, get it while the contractor is still under government contract. My request to ENA was for public records that were created while they were still under contract with the state. But I made that request well after the company’s contract with the state was declared void by a judge. While I personally believe the spirit of the law requires ENA to turn over the public records even post-contract, ENA’s attorney maintained that because it wasn’t under contract, it wasn’t subject to the public records law. We didn’t want the records badly enough to pay for a court fight, but I’d love to see this area of the law clarified.

6.   Know what the law doesn’t say. The code isn’t clear on just how far a state agency must go to get those records on behalf of the person requesting them – it just says the government can’t deny requests simply because the records are held by a contractor. Would the law require the Idaho Department of Correction to sue its own contractor on my behalf if CCA had denied access to the records? Or would I have had to first sue the state to force it to act? How far must a government agency go in order to comply with 74-102(13)? I don’t know for sure, but neither does the state. Assistant Chief Deputy Attorney General Brian Kane and Otter’s in-house attorney, Cally Younger, agree this is a gray area of the law. State agencies may find that it is in their strategic best interest to push reluctant contractors to comply with the public records law, because otherwise the agency could find itself in an awkward legal position.

Rebecca Boone is the supervisory correspondent for the Associated Press in Idaho; she is a member of the Idaho Press Club board and chair of the Press Club’s First Amendment Committee.