A Tennessee chancery court judge ruled yesterday that the records of the Corrections Corporation of America must be made public, although it is a private corporation.
Often, when a judge says that the records of a nominally private corporation should be public, the reasoning is based on the fact that most of the income of the private corporation comes from the government.
That’s true here–naturally, virtually all of the income of a prison comes from the gov. But the judge also relied on the idea that the prison was the “functional equivalent” of a governmental entity, because it was performing a vital governmental service.
As my 23 loyal readers know, I’m a libertarian. I think many governmental services should be privatized. For example, if a private transportation company can bus school children at less cost, I favor privatizing that service, as long as the same safety standards are upheld.
The idea that there is a class of services or functions that is uniquely governmental is something I don’t buy into–or perhaps I’d draw the line closer to one end of the spectrum than others would. I’m uncomfortable that judges are starting to rely on the idea that some services or functions are uniquely and obviously governmental when they decide this type of case.
There’s a slippery slope here when it comes to open records. Off the top of my head, I imagine that well over 75% of public school hot lunches are served in-house as a government function. Does that make the private caterers who serve hot lunches pursuant to contracts with local school districts “the functional equivalent” of governmental entities? I don’t see how one can easily resist that conclusion based on the judge’s reasoning and that means that, unbeknownst to those private caterers, their records might someday be ordered by a judge to be open to public scrutiny.