Public records, private control

Government bodies that contract out their record-keeping can add a whole new layer of difficulty to gaining access.

With only 16 full-time employees and a population of about 3,400, the tiny village of Thiensville, Wis., has to contract with private companies to handle many of the responsibilities that larger cities might be able to handle in house.

That includes its record-keeping. Since the 1980s, the village has hired Grota Appraisals to handle its property tax assessments and records, according to Village Administrator Dianne Robertson.

That previously harmonious relationship has resulted in a court battle that is now before the Wisconsin Supreme Court, which will address the thorny issue of accessing public records held by a contractor.

The situation has occurred in other states as private companies responsible for government record-keeping have thrown up roadblocks to public access.

When governments privatize, the resulting relationships can make it harder to see public records. But when oversight of the public records is itself privatized, it can mean a whole new headache for the press.

This relationship can add new arguments to the arsenal of those who do not want to release records. One is that the records are not, in fact, public because they are held in private hands. Another, which has been a stumbling block in the Wisconsin case, is copyright protection.

The court battle started when a company called WIREdata requested detailed property records from three small municipalities —
Thiensville, Sussex and Port Washington — in an electronic format to use for its subscription-based database used by real estate brokers.

The cities directed the company to the contractors that maintained the property records — Grota Appraisals for Thiensville and Sussex, and Matthies Assessments for Port Washington.

The companies said they used a program copyrighted by another company, Assessment Technologies, owned by the same man who owns Grota Appraisals, in conjunction with Microsoft Access to arrange the data. If WIREdata wanted the records, it would have to pay large fees — more than $6,600, and more if they were reselling the data.

WIREdata sued in state court and Assessment Technologies filed its own suit in federal court to prevent the release of the records. After a federal appeals court in Chicago (7th Cir.) ruled against Assessment Technologies, the contractors provided the property record information to WIREdata as Portable Document Format (PDF) files.

In January, a Wisconsin appeals court said that was not enough. The court rejected the argument that the state’s open records law required only access to the raw property data, emphasizing that taxpayers footed the bill for entering the data into the electronic database.

“This inputted data, maintained at public expense in the Microsoft Access database, is as much a part of the public record as if it were written on paper property cards and organized and stored in a file cabinet,” Judge Daniel P. Anderson wrote for the three-judge panel.

The court’s decision was a welcome one for press advocates, including the Wisconsin Freedom of Information Council and the Wisconsin Newspaper Association, which filed a friend-of-the-court brief in the case.

“We felt that the local units of government were delegating, inappropriately delegating, their public record-keeping responsibilities to private contractors,” said Peter Fox, executive director of the newspaper association.

As the case has progressed, some of the municipalities have found that it as difficult for them to gain access to their own data as it has been for the public.

One village involved in the lawsuit, Sussex, announced in February that it planned to sue Grota Appraisals because the company refused to hand over property records after the appeals court’s decision, despite a provision in its contract stating that all records are the village’s property, according to press reports.

Sussex officials did not return calls for comment. But they told the Sussex Sun they planned to seek a new contractor to handle property assessments and records.

Thiensville has asked Grota Appraisals for passwords and data sought by WIREdata to no avail, said the village’s attorney, Steven Cain, who himself works under a contract with Thiensville.

Cain said the case has changed the way public contracts are written.

“If it hasn’t, it will,” he said. “There’s no question on that. Because of this case, we have taken steps to advise our municipal clients to handle assessment records and their independent contractor records differently.”

An opportunity for revenue?

In rejecting the copyright claims of Assessment Technologies, the Chicago-based federal appeals court noted the large fees the company was seeking in order to release the data as WIREdata requested.

The company “is trying to use its copyright to sequester uncopyrightable data, presumably in the hope of extracting a license fee from WIREdata,” U.S. Circuit Judge Richard Posner wrote for the three-judge panel.

Around the country, as the media and open government groups have fought attempts to give private companies exclusive control over public records, those same questions have surfaced: Do these companies consider the records the property of the public? Or a potential source of revenue?

“To me, those are royalties being created,” said Tonda Rush, director of public policy for the National Newspaper Association. “If the public’s paid for the records to be created, they shouldn’t have to pay to get it back.”

The battles in state legislatures have often concerned electronic access to records.

One case occurred in New Mexico in 2004, when the state’s information technology office proposed a bill that would release the state’s electronically stored databases to a vendor who could resell the data to the public.

The bill’s backers, who included Gov. Bill Richardson, touted the so-called Electronic Government Act as a way to broaden access to records. They brought in records vendors from Texas, Kansas and Arizona to make their case, said Bob Johnson, executive director of the New Mexico Foundation for Open Government.

Johnson and others worried that the government and the private sector viewed these records as a way to make money — at the expense of records requesters who would have to pay “search” and “convenience” fees.

“The proponents said profit wasn’t really the object, the object was to make electronic records more easily available,” Johnson said, “which of course was just propaganda.”

Ultimately, the bill was rejected by the state House and died in committee in the Senate.

Similarly, a decade ago, Illinois media organizations fought off an attempt by telephone giant Ameritech to contract with several local counties to put court records online.

For the first 72 hours, the company would have an embargo on the records so that they could only be accessed online through paid subscriptions, said Beth Bennett, director of government relations for the Illinois Press Association.

For the counties, Bennett said, “it all looked so good. But the larger interest of the public maintaining access to public records — and not a private entity — was lost.”

A media blitz succeeded in thwarting those efforts. Shortly afterward, the press association also persuaded the Illinois General Assembly to amend the state’s public records act to prohibit any private contractor from gaining exclusive access to public records. The association also went to the clerk of courts to make sure a similar agreement could not be approved through the courts.

“We were very cognizant of the fact that this could happen again, and then the toothpaste is out of the tube and how do you get it back?” Bennett said.

‘Out of sight, out of mind’

On the federal level, a bill proposing changes to the Freedom of Information Act that has received House approval includes a provision stating that records maintained by a private entity contracting with the government are subject to FOIA.

When federal agencies contract out their record-keeping, Rush said, “the FOIA test becomes fuzzy because the FOIA test is: Does the agency have possession and control of the records?”

Records held by a private contractor may not show up when a public agency searches for records in response to a FOIA request because the agency may adopt an “out of sight, out of mind” mindset in regards to documents held under a contract, Rush said.

In written comments, the Justice Department said this provision of the bill is unclear and worried that it would overrule Supreme Court precedent saying records created by a private organization under a government grant do not have to be released. If that were the case, the department would have “very serious concerns,” Acting Assistant Attorney General Richard Hertling wrote.

However, Hertling said the department did not object if the provision was meant “solely to clarify that agency-generated records held by a Government contractor for records-management purposes are subject to FOIA.”

Kevin Goldberg, counsel to the American Society of Newspaper Editors, said the bill’s proponents “just saw an opportunity to clarify at the federal level” that such records maintained by a government contractor are public.

“It’s actually less of a change than a restatement of what everyone understands the law to be: If a record is created by the government and held in a private storage facility, it is still a public record,” he said.