Secrecy Inc.

Abstract

As governments engage in public-private partnerships, they have devised ways to shield the public’s business from the traditional level scrutiny offered by citizens and journalists, watchdogs of the public trust. The authors propose rethinking public oversight of private vendors doing government business. First, the authors explore the historical and legal background of open records laws. This core purpose is undermined by overly broad interpretations of trade secrets and competitive harm exceptions, a trend exacerbated by the U.S. Supreme Court in a 2019 ruling. The authors demonstrate why public-private collusion to sabotage transparency demands a reinvigorated approach to the quasi-government body doctrine, which has been sharply limited for decades. The authors conclude with recommendations on reversing the trend.