Will FOIA be foiled by outsourced subcontracting?

I have previously reported how a couple of states have responded to claims that contractors are immune from making disclosures under Freedom of Information Act requests, using that phrase loosely since rights to government data are not uniform, either in substance or practice.

In Reveal the truth or face the consequences, I discussed a New Mexico state decision that followed Florida law to the effect that contractors who perform state functions by acting on behalf of a government entity must disclose disclosable information under the relevant local FOIA law. The test applied there was essentially based on an agency analysis under the totality of the circumstances.

The issue is being raised elsewhere, as revealed in the following two articles.

Transparency Outsourced as U.S. Hires Vendors for Disclosure Aid

At least 25 federal agencies are outsourcing parts of the FOIA process. The contractors, sometimes using workers with security clearances, are building FOIA software, corresponding with requesters, redacting documents and recommending what information should be withheld.

With contractors involved, the process becomes more complicated because the companies employing the FOIA workers aren’t directly subject to FOIA laws, said John Wonderlich, policy director at the Sunlight Foundation, a Washington-based group that pushes to open government records.

“If I was in charge of an agency and wanted to create an unaccountable FOIA process, the first thing I would do is put an outside contractor in charge of it because fewer of our accountability laws apply to them,” Wonderlich said in an interview. “It would just be another layer between me and the public.”

Using contractors to answer FOIA requests falls into a murky area of law, said Scott Amey, general counsel at the Washington-based Project on Government Oversight.

The vendors aren’t allowed to approve agency responses to FOIA requests because the work is considered “inherently governmental,” according to federal acquisition rules. On the other hand, they are permitted to “support” the preparation of responses.

While contractors may suggest what information will be released, redacted or denied, the agency must make the final decision, Amey said.

“They are walking right up to the line,” he said. “It still makes you question the integrity of the system if contractors play such a vital role and merely have their guidance approved.”

Some open-records advocates say hiring contractors to speed up the FOIA process may help federal agencies as they wrestle with budget cuts and a growing backlog of requests. FOIA contractors know employees aren’t allowed to make decisions for the government and would never cross that line, said Randolph Wagner, chief financial officer for Wagner Resources Inc., another Gaithersburg-based company.

“It’s more like a cliff,” said Wagner, whose company derives about 50 to 60 percent of its revenue from FOIA-related tasks. “We don’t want to make the decision on behalf of the government.”

His employees, who work on-site at agencies, may be involved in the process from “beginning to end,” he said.

They receive requests, communicate with information seekers and contact agency officials to retrieve the records, Wagner said. When they receive the records, his employees provide recommendations about how much information can be released. A higher authority in the agency makes the final decision, Wagner said.

The FOIA offices aren’t manned to handle all of the work, Wagner said. “In most cases, we outnumber the people we work with, three to one. They’re the decision-makers and we’re the workers.” The work isn’t glamorous and there isn’t much opportunity for federal employees in FOIA offices to get promoted, Wagner said. “If you want open transparency, you’ve got to have somebody work on it,” he said.

Government contracts called public data

In a sweeping ruling Tuesday, the Minnesota Court of Appeals said government contractors are subject to state open records laws.

The ruling means that Milwaukee-based Johnson Controls must reveal to Timberjay Newspapers of Tower, Minn., details of its subcontract with a Minnesota architectural firm to build schools in St. Louis County.

Helmberger was concerned about flaws he noticed in an $80 million project involving construction and renovation of several St. Louis County schools, whose district contracted with Johnson Controls for the project. In 2010 he requested a copy of Johnson's subcontract with Duluth-based Architectural Resources Inc. under the state's Data Practices Act. Johnson refused Helmberger's request, maintaining that the contract contained proprietary secrets and was not subject to open records laws.

Under the law, private residents or businesses contracting with the government must comply with the Data Practices Act "as if it were a government entity."

In March 2011, the Minnesota Department of Administration sided with Helmberger, but an administrative law judge threw out the request because the subcontract "did not involve the performance of a governmental function."

The Appeals Court disagreed, arguing that the planning, design and construction of five public schools falls under state laws that mandate the duty of a school district to "furnish school facilities" to children -- including constructing and renovating buildings.

Attorneys for the contractors have not yet decided whether to petition the state Supreme Court to hear the case.