Privatization

By Rani Gupta

Bob Segall was suspicious.

Years ago, Segall, then a reporter for WITI-TV in Milwaukee, Wis., got a tip that a local school bus driver had been convicted of sex crime. The tip checked out and Segall wondered: How many drivers like this are out there?

The station decided to request the records of all the local drivers. The school district had contracted out its bus services to about a dozen private companies, so Segall sent out public records requests to the companies, seeking the drivers’ names and birth dates.

The response: a flat denial from an attorney representing all the bus companies.

Segall switched tactics. The Milwaukee school district had a provision in its contracts requiring all the bus companies to hand over a list of their drivers by September of each year. So he filed a records request with the school district for the lists. 

Little did he know he was in for a major court battle.

The Wisconsin Supreme Court had set the stage for this fight four years earlier, when it said in the 1996 case Woznicki v. Erickson that before an agency released records, it had to notify anyone whose “privacy or reputational interests” were implicated and give them a chance to challenge the release in court.

The Milwaukee schools’ attorney told Segall that all 1,400 drivers were entitled to a notice. Eight hundred of them objected. 

A handful raised legitimate concerns that they had restraining orders out against people who might find them, said Segall, now an investigative reporter for WTHR-TV in Indianapolis. But he said, “The vast majority of the hundreds and hundreds of bus drivers who filed Woznicki objections, all they put down was invasion of privacy.”

Still, the judge appointed a referee to review all 801 objections. Six were found to have valid objections, and the judge ordered the release of the names and driver’s license numbers of the rest. But the judge agreed to halt the order while the bus companies appealed.

More than a year after the companies first sued the school district seeking to prevent the release of the names, the state appeals court agreed that the names should be public.

When the station got the names, Segall said it turned up hundreds of drivers with “significant” backgrounds, including poor driving records or serious felony convictions. One driver who was alone with special-education children had been convicted of sex crimes, Segall said.

After the story ran, the district didn’t stop contracting out its bus services. Instead, it took advantage of the fact that under the public records law, a government agency is not required to turn over records it does not possess.

The district stopped requiring the contractors to turn over rosters of drivers. Its new agreement let school officials inspect the drivers’ names at any time, but the district no longer had a list that could lead to an expensive public records battle — and no way for the press or public to find out who was driving thousands of local children.

“They decided it was easier for them not to have the information, which for me was a very troubling development,” Segall said.

The station’s fight shows how easy it is for a public agency to skirt accountability by taking advantage of weak public records laws that provide little access to contractors responsible for government work.

But the legacy of that case was not all negative. It was a prime example of the ways the Woznicki decision could be used to frustrate records requests and the public interest. The state Legislature curbed the reach of the court’s ruling in 2003. The next year, legislators passed a law that allowed parents to see the names of their children’s bus drivers.

Rare is the reporter who has not dealt with some privatization, whether that is with a contractor paid for some traditionally governmental service — such as running prisons in Texas or performing military duties in Iraq — or with an entity that has some public and private characteristics, such as an economic development corporation.

But the public records and open meetings laws that the press relies on provide much less access to the private contractors than if those responsibilities are still in government hands. That can make it nearly impossible for the media to provide oversight of important public services and report on how taxpayer money is being spent.

‘Savvy’ contractors

The contracting relationship used by the Milwaukee school district is fairly common. The private school bus industry has become big business, as shown by an annual survey by the trade magazine School Bus Fleet. In 2003, the top five contractors alone reported busing almost 4 million students. Federal statistics show 25 million students were transported at federal expense in the 2002-03 school year, the last year for which data is available.

All around the country, companies are running schools, hospitals and prisons – duties that were once the exclusive responsibility of government.

But public records laws and open meetings laws in most places have yet to catch up with this trend of contracting out. Many, including the federal Freedom of Information Act, say that only an entity that qualifies as an “agency” under the law is subject to the public records law. That may include all kinds of quasi-governmental entities (more on that later) but excludes many government contractors, even those that have significant responsibilities or receive large amounts of public money.

Local governments also frequently hire outside consultants for smaller jobs of public importance, such as investigating wrongdoing within an agency or searching for high-profile positions, such as university presidents or city managers.

Peter Fox, executive director of the Wisconsin Newspaper Association, says that while most government contractors are ethical, others use their private status and their knowledge of state laws to thwart openness.

“There are consultants who seek government work who are very savvy about the public records and open meetings laws,” he said.

In September, the city of Peoria, Ariz., hired a consulting firm to assess its local police department. The consultant surveyed 44 staffers about the management of the department and the chief’s performance. The chief announced his retirement soon after, prompting The Arizona Republic to seek the consultant’s report.

The newspaper found out that the city did not have a copy of the report, said David Bodney, a Phoenix media attorney who represented the newspaper. The consultant had shared the report with the deputy city manager, who had then given it back. The consultant had also retained and destroyed the surveys because she had promised confidentiality, even though Bodney said she had no right to guarantee that.

Ultimately, the city handed over the deputy city manager’s notes from her meeting with the consultant and 20 surveys that were stored or e-mailed from city computers.

But the consultant “never produced a thing,” Bodney said, and the city insisted the consultant’s documents were not public records.

Bodney thinks the newspaper had a “very strong argument” under the public records law, but that there was “a certain pointlessness” in going after destroyed documents.

“These are not isolated incidents,” Bodney said. “More and more, public bodies are outsourcing basic government services to third-party contractors and whether legislatively or by court action if necessary, these efforts to frustrate access to public records must be resisted.”