Six More Private Prisons, Zero Accountability

The Cincinnati Enquirer reports that Ohio’s proposed budget for the coming year includes a plan to sell an additional six prisons to private operators. If that saves money or raises revenue, that’s great. But maybe in connection with that move, the Ohio Legislature could correct an absolutely horrendous Ohio Supreme Court decision from a few years back that allows privately run prisons to be free from public accountability. The case was State ex rel. Oriana House Inc. v. Montgomery. The issue was whether the records of a prison run by a private company should be subject to the Ohio Public Records Act. The prison received 88% of its funding from public sources and it obviously performed a public function. Previous decisions from the Ohio Supreme Court had ruled that a public agency couldn’t shield records from public view by outsourcing a public function to a private entity. For example, Hamilton County Ohio couldn’t stop the production of records related to the massive cost overruns in the construction of Paul Brown Stadium just because a private firm actually handled the construction of the publicly funded facility. That seemed like a pretty sensible rule to just about everybody except Justice Paul Pfeifer and three other members of the Ohio Supreme Court. In the Oriana case, those four (the Ohio Supreme Court consists of 7 justices, so four is a majority) decided that a publicly funded private entity that performs a public function must comply with the Ohio Public Records Act only if that entity’s work monitored on a day to day basis by a public entity. This is right up there, next to most forms of advanced math and science, on the list of things I don’t understand. The whole point of outsourcing a public function is that the public body lacks the resources to do the work. So the notion that the public body will continue to monitor the day to day operations is ludicrous. But it’s still a public function and the public, who is, you know, PAYING FOR IT ought to retain the right to look at the records and make sure the thing is being operated properly, and free from corruption and cronyism. The decision encourages unaccountability, which breeds corruption. I am willing to accept the idea that a court can simply have a bad day. But I’m a little less willing to be saddled with the consequences of a bad decision for the foreseeable future. So when the Ohio legislature approves the private operation of six more prisons, maybe they can fix this.