The Sale of Special Access to Confidential Information
<a href="http://parentsunitedphila.com/2013/11/15/is-right-to-know-the-new-pay-t…; target="”_blank”">A
recent post on Philadelphia's Parents United for Public Education
blog</a> raises an issue that pulls together FOI and confidential
information issues. Entitled "Is 'right to know' the new 'pay
to play'?", the post is about Parents United's attempt to make
public a report that contains a list of Philadelphia schools recommended for closure and
the criteria used for developing the list. The failure of this attempt would mean special access to confidential information for those who partially funded the preparation of the report.<br>
<br>
The criteria and list were put together by a contractor, the Boston
Consulting Group (BCG), and the project was partially paid for by the William
Penn Foundation. In turn, for this project, the foundation solicited
donations from, among others, real estate developers and those
promoting charter expansion, that is, from individuals and entities
that stood to benefit from information about school closings as well
as from the closings of particular schools.<br>
<br>
Parents United sought to get a copy of BCG's report, but were told by the school board that the
report was protected from disclosure as an "internal predecisional
document." Parents United won the case before the Pennsylvania
Office of Public Records, on the grounds that the document had been
disclosed to the William Penn Foundation and the foundation was not "internal." The school board has filed suit in court
to overturn the Office of Public Records decision.<br>
<br>
In its brief (which is included in the blog post), the school board
argues that the "William Penn Foundation’s role was that of a
grantor who funded the second phase of BCG’s consultant services. As
grantor, the philanthropic entity had the right – and indeed an
affirmative duty – to know that BCG’s services were rendered and to
review the work product prior to issuing payment to the consultant."<br>
<br>
This sounds reasonable, but is it sufficient to allow
special access to confidential information? Couldn't this review of the work product wait until the information has become public?<br>
<br>
The most important question is, Should
anyone who pays for government work be considered
"internal" to the government and, therefore, have special access to
the results of that work before the public, for which the work was done? If this were true, all an interested party
would have to do is pay for part of a project (directly or
indirectly) in order to get access to confidential information that
could mean a huge advantage with respect to such things as
purchasing government property or property nearby, getting a
contract or grant or, in this case, opening a charter school. I say
"directly or indirectly," because if the school board's argument is
valid, then those who donated money to the foundation for the BCG
report (or anyone who funded government work indirectly) would have
the same valid argument for special access to the report, and it
would be difficult for the foundation or other intermediary to
withhold the report from them.<br>
<br>
Beyond the possible misuse of confidential information, an official could use the ruling the school board is seeking as a
tactic to engage in a sort of pay to play. The official could let it
be known that if contractors, developers, and grantees want a
special advantage with respect to government projects and benefits,
they can put up money to help pay for government work, especially in
the early stages, and get special access to valuable information
that results from that work. This would be a way to effectively sell
confidential information without violating ethics prohibitions
against allowing its use for the benefit of anyone other than the
government itself. Of course, there could also be related payments to the
official for allowing this special access to valuable information,
in the form of campaign contributions and other legal gifts (as well
as illegal ones).<br>
<br>
Thanks to Parents United to raising this issue.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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