Private contractors and state data

There are a couple of things that should work in your favor on this issue.

 

The Access to Public Records Act prohibits a public agency from entering into a contract for the storage or copying of public records that “unreasonably impairs the right of the public to inspect and copy the agency’s public records.” IC 5-14-3-3(g).

 

The legislature’s intent concerning the privatization of public services, found in IC 5-23, requires that records of a vendor that is a party to a public-private agreement are subject to inspection and copying to the same extent the records would be subject to inspection and copying if the operator were a public agency under IC 5-14-3 (Access to Public Records Act). What I don’t know in this situation is whether the contract with the private vendor falls under IC 5-23 or a different procurement statute.

 

But it appears to me that if you are asking for records that the vendor is required to create under the contract for the state, then those records should be available for inspection and copying regardless of whether they are housed with the Indiana State Police or on a computer of the vendor’s.

 

Steve Key

Hoosier State Press Association

 

 

 

 

 

Keith is right philosophically, but I believe this has been a contentious issue in other states. It often boils down to a problem concerning what the public agency promised in its contract with the private company about what it could do with the data so that it could make money off the data. I remember this issue being discussed at NFOIC last year, but I can’t recall any details off the top of my head. I do seem to remember that controversies like this led at least one state legislature to pass a law requiring that public records held by private agencies had to be as open to inspection and copying as they would be if the agency maintained them. Again, I’m fuzzy on the details. I tried finding something on a couple of websites just now and came up dry.
But I agree that the PAC would probably side with the paper on this.
Tony
On Mar 20, 2008, at 3:58 PM, Robinson, Keith wrote:
    Michael:
    I’m no legal expert, but my thoughts are that the data are, in effect, public records regardless of whether a private company maintains them and therefore  should be released with no restrictions on their use just as the state police itself had released them to you.
    I would think the PAC would be able to issue an opinion on that and also on the issue of a fair copying fee.
    Keith

From: Michael.Jesse@indystar.com [mailto:Michael.Jesse@indystar.com]
Sent: Thursday, March 20, 2008 2:31 PM
To: Steve Key
Cc: Alan Cloe; Anthony L. Fargo; Dan Byron; Gerry Lanosga; Robinson, Keith; Katy Yeiser; Phyllis Price; Terri Jett
Subject: When state agencies use vendors for data . . . (SCL: 7)

Folks —
We’ve started to run into an access issue here at The Star and I don’t know if this is something that has already been discussed within ICOG or with the PAC.  It has to do with the outsourcing of database work to vendors and how that affects access.  Current example is this: in the past we’ve periodically acquired traffic accident data from the state police.  We pay them a little money and they export the data, treating it as a public records request.  Now they outsource to a private company and when we made our request this year the state police said, well, we “don’t have” that data but you can get it from our vendor.  But the vendor himself feels no obligation to treat the request as public records access.  They are willing to provide the data, but for a larger fee and — more concerning — wanting to stipulate restrictions on how the data might be reused.  It’s a private company trying to protect the value of its own investment in these records and doesn’t want us taking the whole thing and posting it for free on our website.  Meanwhile, the government agency normally responsible for such records seems to be washing its hands of any obligation to provide data which it does not physically possess under this arrangement.
I may submit this to the PAC for an opinion, but wanted to see what you all may have heard on this issue.

Michael Jesse