23 St. & Loc. L. News 1 (1999-2000)

handle is hein.journals/stlolane7 and id is 1 raw text is: /M    Section of State and Local Government Law

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The Section serves as a collegialforum for its members, the profession and the public to provide leadership and educational resources in
urban, state and local government law andpolicy.

The Public's Right to Know:
Sunshine Laws an Private Vendors
By Barbara Croll Fought

A Connecticut resident, angry because he bought a
lemon pickup truck, began tracking why the state
Department of Motor Vehicles (DMV) no longer required
mechanics to certify that repairs were made according to
the manufacturer's specifications. The DMV told Andrew
Simso it did not have any records on the policy change.
Then he went to find the documents at the private con-
tractor that performs the state's emissions testing,
Envirotest Systems Corp. The business told Simso, in
effect, we're a private company, we don't have to give you
our records.
Simso turned his righteous anger into action. He
brought his case to the Connecticut Freedom of Information
Commission. It has the power to order disclosure of
records and did so. But Envirotest appealed and prevailed
in Superior Court.' The case is now before the state's
appellate court.
I think you should have this information if it's a gov-
ernment-mandated program, says Simso, who added that
he fears government agencies can hide information by con-
tracting with private entities to do government-mandated
services.
The situation that Simso encountered is repeating itself
across the country as state and local governments become
swept up in the wave of privatization, with little thought of
how citizens' rights to public information are being con-
tracted away. Nor are private businesses, such as Envirotest,
aware that they might take on public responsibilities when
they sign on with a public body.
Barbara Croll Fought, is an associate
professor at the S. I. Newhouse
School of Public Communications,
Syracuse University, where she teach-
es media law and broadcast journal-
ism. She is also a member of the board
of directors of the National Freedom
of Information Coalition

Even when attorneys or elected officials give assurances of
confidentiality, courts have still mandated disclosure of
records under state sunshine laws. Such was the case with a
company that contracted with the city of San Gabriel,
California, to pick up garbage and ended up having to release
its financial statements after a fee increase upset residents.
Thus state and local government attorneys writing con-
tracts with private vendors need to be aware of the implica-
tions of their states' public records laws. A recent review of
case law netted more than thirty instances, in nineteen states,
in which the issue has been litigated. Most often the courts
side with the plaintiffs seeking access to the private contrac-
tors' records. For this analysis, cases involving nonprofit cor-
porations and quasi-public agencies were not included.
Types of Services
The cases cover various privatized services. Some are
traditional municipal services, such waste disposal, social
services, or school busing. A private vendor hired to trans-
port school children in Atlanta had to surrender its list of
drivers after a two-year court battle that ultimately reached
the state's highest court. The plaintiff, a TV news station,
wanted the files to check out a tip that some drivers, fired
earlier for substance abuse, were again ferrying children
through the city?
(continued on page 18)
*  Chair's Message, page 2
*Section News, page 3
* To Connect or Not to onjic, page 5
*Supreme Court ath page 7
Section FallMn an            ii      as City, page 10
*Recent Devetop           1
* Environmentio     v      I: I I
*  Washington's Labyrinthiw  ypge 15

Vol. 23, No. 1, Fall 1999

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