Make documents produced by government contractors in their role as gov't surrogates subject to FOIA
The president should direct agencies that when they outsource any of their duties, not limited to records management duties, the contracts should contain provisions specifying that the records produced by the company in its function as a government surrogate belong to the agency and available, as agency records, under FOIA.
On Dec. 31, 2007, President Bush signed the OPEN Government Act of 2007 (S. 2488), which includes long-sought reforms of the Freedom of Information Act (FOIA). In response to the outsourcing of so many federal government functions, one provision of the OPEN Government Act extended FOIA to include any information that "would be an agency record" that is maintained by "an entity under Government contract, for the purposes of record management." Currently, the breadth and implementation of this important provision remain untested. The president should clarify the records management responsibility that contractors must abide by and better establish the level of access agencies will provide to contractor produced records.
- From the 21st Century RTK Agenda
Why Is This Idea Important?
Government procurement is the fastest growing part of discretionary spending in the federal government, with roughly 41 cents of every dollar being spent on contracts. Along with this rapid growth in contracting, there has also been a rapid rise in sole-source contracts and contracts with full and open competition but only one bidder. Additionally, there is a concentration of contractors: of the more than 170,000 contractors receiving federal money, the top 20 account for 36 percent of all the money, and the top five account for 22 percent. Such numbers are a clarion call for reforming the procurement process to ensure more transparency.
Outsourcing of government’s functions is a controversial activity, with both strong opponents and supporters. To the extent it continues, it will have an impact on transparency, as many of our openness laws (e.g., open meetings, FOIA) have not been seen to apply when government outsources its work. All federal contractors performing government functions should be subject to the same openness laws that apply to the federal agency that would otherwise be performing the service or function.
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