Private prison, public records in Tennessee

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.

Prison operator CCA must open records, judge rules.

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.


7 responses to “Private prison, public records in Tennessee

  1. Libertarians would have toll roads, no free education or free libraries or parks – it is theft of the common good – no healthcare for children, mentally ill, poor or aged.

    Besides the military which Blackwater has done a horrible and costly job privatizing. Isn’t taking away one’s liberty a central government function?

    There is a reason there are no libertarian governments – it only sounds good in a novel.

  2. On the private cater function – a judge would have to decide if that is a government function.

    But one has to ask what is wrong with transparency? If the entity is receiving taxpayer funds?

    And the reality is that it would be an uncommon request for records to that entity.

    But say they were serving your children dangerous food- wouldn’t that be something you would like to be able to discover without a lawsuit?

  3. classicalliberal

    As a libertarian, I have to disagree; I think this is a great ruling. Any corporation that derives its revenue from the taxpayers should be accountable to the taxpayers and this includes opening records related to the portion of that company’s business that is taxpayer funded. I think this lies at the heart of open government.

    I too support privatization, only I support true privatization; i.e. getting the taxpayers and government completely out of the picture. If people want roads and schools they can pay providers directly for the service. They type of privatization you talk about, while it may create marginal gains in efficiency, merely creates a special interest in the form of government contractors.

    Essentially there are three reasons that corporations or other special interests seek to “buy” government officials: to control regulation (either staving it off of themselves or imposing it on their competitors), taxation (just like regulation) and government contracts (a multi-billion dollar industry and probably the worst of the three: see Iraq war).

    Handing taxpayer money over to contractors simply encourages even less accountable graft: think FEMA paying a contractor $700/mo to clean toilets and the contractor subbing the job out for $150/mo or an “accounting glitch” causing Halliburton to overbill the government by million$ for services that were never delivered. While “anon” is clearly very wrong above about libertarian societies, they are right to point out Blackwater as a symptom of this problem.

    Opening the records of these corporations is a great step toward addressing this problem, but the real solution is, wait for it, THE MARKET. Past societies and good economics have proven that there are very few things that government actually has to supply that will not be supplied by the market (prisions may be an exception, but this wouldn’t be a problem if we didn’t see fit to imprison a greater portion of our population than any other nation on earth, many for “crimes” with no victims). True privatization requires eliminating the government completely from the equation.

  4. Thank you for these thoughtful comments!

    For the record, I also agree with the ruling. When I wrote this post, I meandered off into a thought experiment about potential future rulings that, using the same reason, could conceivably lead to consequences that most people would regard as unacceptable and counterintuitive.

    But I wrote a very muddy post. I need to think this over some more and try to say what I’m thinking more clearly.

  5. There is a reason that more fire departments are not privatized. The costs start off lower but over the years with the monopoly in place and the need to always turn a profit it actually becomes cheaper to have the government run it – plus there are certain liability advantages – and then there is of course the inevitable tradition of unscrupulous operators hiring arsonists to generate more billable work…

  6. RE: There is a reason there are no libertarian governments – it only sounds good in a novel.

    Actually, historically, there have several stateless societies:
    Isreal under the “rule” of judges (several hundred years) then they insisted on “real Gubbmint” just like there neighbors. (about 300 years)
    Iceland under the “rule” of the althing and the lögsögumaður. (aproximately 400 years)
    Ireand and Manx under the tuath and Brehon (about 500 years)

    And currently most of Somolia (except for disorganize, but UN “governed” Modadishu) is under the rule of the “rule” of the Xeer. (since mid 1990’s)

  7. Pingback: Private? Public? « Open Records

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