Last year, two convicted sex offenders scaled a prison fence at a minimum-security facility near Houston, beat a guard, stole a car and drove 200 miles — to the outskirts of Dallas — before they were apprehended.

The state of Texas was powerless to punish the escapees. In fact, law enforcement authorities didn't even know the jailbirds had a Texas address.

Why? The Corrections Corporation of America, operator of the prison, had shipped in 240 sex offenders from a maximum-security prison in Oregon. The company was required to report its Texas-bound cargo to the feds, which it did — but Texas law doesn't require private-prison managers to call state authorities. The prison — once the province of state regulators and local law enforcement officials — was now off-limits, a private facility run for profit.

Prisons are just the tip of the iceberg. As federal, state and local governments turn increasingly to privatization — contracting with private firms to perform a governmental function — novel questions arise about the applicability of open government laws to such public-private hybrids.

In the brave new world of government-for-profit, public access to information often seems an afterthought:

The Reporters Committee for Freedom of the Press recently reported that a Mississippi publisher had signed a contract giving the private firm exclusive rights to distribute and sell computerized judicial records, including the on-line version of the state statutes.

In Newton County, Texas, managers of another newly privatized prison established a new policy: no interviews, ever, under any circumstances.

In Atlanta, a local television station won an open records lawsuit after a private contractor hired by the city of Atlanta to transport school children attempted to deny reporters access to the personnel records of its drivers — specifically driving histories and criminal records,

Privatization is the next great threat to freedom of information. Its efficiency is seductive, its political appeal bipartisan. The mantra of privatization will only grow stronger in the next few years, as privatized government services increase by 30 percent in the next decade, according to a recent estimate in Governing Magazine, which places the current privatization industry at $800 million to $1 billion.

When government turns over functions it previously operated to private companies, public oversight of the new provider becomes a complex legal issue. Few state public records laws are equipped to handle such transfers of power. The few court cases over access to privatized records have generally devolved into ponderous fights over contractual obligations and delegation of authority, masking the rather obvious point that regardless of the provider, this is still the public's business. Records that were public one day are private the next — solely by virtue of the contractor's non-government status.

Public scrutiny is particularly important to prevent corruption and abuse by private providers. The relationships between government officials and private contractors are of interest to all citizens, and for good reason: far too often, reporters uncover chummy deals struck by old friends following the tired path from statehouse to lobbying firm to private business and back again.

In addition, privatization can change the very nature of democratic governance in meaningful ways by introducing the notion of profit to traditional government functions like fire and police protection, tax assessment and collection and welfare. It seems obvious that private organizations wielding the coercive power of the state, such as law enforcement or prisons, should be subject to public scrutiny. Private contractors, unsurprisingly often do not share this sentiment: corporations exist to make money, not to inform the public.

To ensure that public access to information is not lost in the race to privatize, state legislatures must revisit public access laws to state clearly that any governmental function delegated to a private company should be treated as a public function. The challenge is to update the law in a way that preserves the distinction between state and private actions while recognizing new forms of enterprise. Without statutory changes guaranteeing access to privatized records, the public risks being shut out of the process.

Charles N. Davis, Ph.D., is an assistant professor at Southern Methodist University. Matthew D. Bunker, Ph.D., is an assistant professor at the University of Alabama. Both teach media law and conduct research on freedom of information issues, including state open meetings and records laws, access to electronic information and the impact of privacy concerns on open government laws.

This column is distributed by the First Freedom Op-Ed Service, an independent project of the American Library Association's Intellectual Freedom Committee and the Freedom to Read Foundation Board of Trustees.