Applying FOIA to Government Contractors

The Next Frontier of Government Transparency

Each year, a larger portion of government work is performed by private government contractors, who make up an estimated 4 in 10 federal government workers and account for a whopping 40 percent of discretionary spending. Despite these numbers, private contractors are not subject to the Freedom of Information Act, meaning that the public is effectively left in the dark about how a significant portion of taxpayer dollars are spent.

The Freedom of Information Act

The Freedom of Information Act (FOIA) is the primary law that upholds the public’s right to know, allowing requesters to obtain government records, stay informed about government programs and policies, and hold the government accountable for wrongdoing. Because private contractors are not subject to FOIA, the more government functions are performed by contractors, the less the public knows about what the government is doing.

It’s time to apply FOIA to private government contractors, so that private companies – and the government – can’t hide waste, fraud, and abuse behind closed doors. Several states, including Pennsylvania, Florida, and Wisconsin, recognize that government contractors are performing government services and should therefore be covered by public records laws. The federal government must now follow their lead.

Subjecting private prisons and detention centers to FOIA would be an important first step. Open The Government has long advocated that records kept by private prisons and detention centers that contract with the federal government in particular should be considered public records, given that they perform a fundamental government function and that their work has such a direct impact on the lives of detainees. The Private Prison Information Act is an important step forward in this fight. It was introduced in both the House and Senate in 2019 and was the result of the coalition’s efforts on this issue.

During the COVID-19 pandemic, oversight of stimulus funds has emerged as a critical government accountability issue. Some contracts awarded by the Trump administration have raised eyebrows, such as a $55 million contract for N95 masks that went to a company that had never produced such masks before and filed for bankruptcy last year. Without subjecting such contractors to FOIA, it’s nearly impossible for the public to obtain information about how the company is using tens of millions of taxpayer dollars. Learn more about Open The Government’s proposals to protect the public’s right to know during the pandemic here.