Is it true that records held by a government contractor are out of reach for a public records request?

It depends on the records, not just who is holding them. The location of a record is not the deciding factor under most public records laws. What usually matters is whether the record is an agency record subject to disclosure, and whether the agency controls it. Contractors often do hold records that are reachable.

Why “held by a contractor” is not a free pass

Public records laws generally apply to records that an agency creates or controls in the conduct of public business. When a government agency outsources a function to a contractor, the records the contractor generates while performing that function frequently remain agency records. The agency cannot necessarily place records beyond public reach simply by handing them to a private company.

Two questions tend to drive the analysis:

• Was the record made or received for government business? Records produced under a contract to carry out an agency program usually qualify.
• Does the agency control the record? Control can exist even when the contractor physically possesses the files, especially if the contract gives the agency the right to obtain or direct them.

Many agencies write contract clauses that explicitly require contractors to maintain records, follow approved retention schedules, and turn records over to the agency. Those clauses reinforce that the records belong to the public function.

Where the answer can shift

Not every document a contractor touches is reachable. A request may legitimately fall short when:

• The material is the contractor’s own internal business record, unrelated to the government work.
• The record was never created or received in connection with the agency’s program.
• A statutory exemption (such as for personal privacy, certain proprietary information, or law-enforcement material) applies to the content.

Many state public records statutes and the federal framework address this differently in detail, so the precise reach depends on the law that governs the agency in question.

Practical takeaway

Treat contractor custody as one factor, not a shield. If the records concern public business and the agency controls them, they are often subject to a request. When in doubt, frame the request around the function and the agency’s relationship to the record, and ask the agency to obtain records from its contractor.

For more on access rights and exemptions, see the FOIA and public records hub.