A recent article in an online publication, Just Security, examines the fallout from the US Supreme Court's opinion in Food Marketing Institute v Argus Leader Media.

The Court resolved the tension between the public's interest in transparency and accountability, on the one hand, and the interests of private companies doing business with the federal government in secrecy and opacity, on the other, in favor of private business and against "the democratic right of citizens to participate in and be informed about their government."

For 40 plus years a requirement of "substantial harm" was required to shield from disclosure private contractor information shared with the federal agencies to which they were contracted. As interpreted by the US Supreme Court last month, the federal law now requires nothing more than a showing that the information is "customarily and actually treated as private by its owner and provided to the government under an assurance of privacy."

The article notes that this exceedingly disturbing US Supreme Court opinion *interpreting the federal Freedom of Information Act* comes at a time when the federal "government is outsourcing a rapidly growing number of its responsibilities to private, for profit companies."

According to the article, more than $1 of every $7 of federal spending is paid under these contracts. This includes the Department of Homeland Security which allocated — again according to this article — a third of its budget to contractors in 2018.

It is DHS which is responsible for immigration enforcement and which has outsourced, among other things, operation of the largest immigrant child detention facility, transportation, healthcare, food services, money transfers, commissary services, phone service, and immigrant tracking databases, to private contractors.

These private contractors are not directly subject to the federal Freedom of Information Act but they are — or have been — accountable to the public through the records they share under contracts with the federal agency.

Food Marketing Institute makes it easy for private contractors to escape accountability. "Confidentiality," the article concludes, is now "in the eye of the company."

Fortunately, Congress is attempting to legislatively address this and other threats to the public's right to be informed about what their federal government — and its private contractors — are doing.

Again, these are changes in public access laws at the federal — and not the state — level. To repeat, Kentucky's open records law requires a showing that records disclosed by a private entity to a state or local public agency are confidentially disclosed, generally recognized as confidential or proprietary, *and* that disclosure of the records would give an unfair commercial advantage to competitors of the entity that disclosed them.

What was implicit in federal statute until Food Marketing Institute is explicit in Kentucky statute, and no court can read it out of the open records law. Only a legislative attack on the law, such as the attack unsuccessfully launched in HB 387 during the 2019 Regular Session, can alter the proper balance between the interests of private companies doing business with state or local government and the public's right to know that currently exists —and has existed since 1994 — in our law.

We must continuously and vigorously resist any attempt to dilute that law.