Government ceding functions to private companies – the wave of the future?

Government ceding functions to private companies – the wave of the future?

Tom Stilp, JD, MBA/MM, LLM, MSC

In our on-going series reviewing the “checks and balances” of government, the privatization of traditional government services presents a unique problem not seen previously.

For over 100 years, the Cook County Recorder of Deeds has been charged with faithfully recording documents, now affecting billions of dollars of real estate in the County each year.  The Recorder’s Office will be permanently dissolved as of December 7, 2020.  Instead, the Recorder’s services will be subsumed by the County Clerk, and the Clerk has already contracted with private companies to perform some of the Recorder’s functions.

In effect, the government has out-sourced work and ceded its authority to private companies.  One could argue that if the private companies work faster, cheaper and better, then the move to privatize work is good. There are, however, a few considerations.

In the system of “checks and balances,” the Recorder of Deeds was an elected position.  In theory, the Recorder was accountable to the public.  But private companies are not accountable to the voters.

Another curious problem – private companies charge fees, registration and annual subscription costs which can amount to thousands of dollars compared to a one-time fee charged by the Recorder.  Thus, without any reduction in taxes for services the government no longer performs, the overall cost to the public has increased.

Records, as those kept by the Recorder’s Office, are  “public.” As “public” records, the people are supposed to have access to the records without charge.

The law states the following about public records:

“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all personal shall have free access for inspection and examination to such records . . . “  705 Ill. Compiled Statutes 105/16(6) (2020).

According to the U.S. Supreme Court, free access to public records, based on the 1st Amendment, includes the right to freedom of speech, which carries with it the freedom to listen to public proceedings and have access to records.  Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

There are not any court challenges to the privatization of government services, perhaps because the courts themselves are taking the same actions.

Those of us who work regularly with public officials, clerks and ministerial personnel have seen the biggest changes.

It is a brave new world.

As always, please let us know what you think.

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