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PLN public records suit cited in First Amendment Center article on private prisons

First Amendment Center, July 21, 2008.
PLN public records suit cited in First Amendment Center article on private prisons - First Amendment Center 2008

Legislation, lawsuits seek to shine light on private prisons

By Melanie Bengtson

First Amendment Center Online intern


A bill before Congress would extend the Freedom of Information Act to require private prisons contracted by the federal government to release records under the same standards as federal prisons.

The Private Prison Information Act of 2007 (H.R. 1889), introduced by Rep. Tim Holden, D-Pa., would require private prisons and other correctional facilities under contract with federal agencies to house federal prisoners to make their records accessible under the same FOIA requirements that govern federal prisons. An identical bill was introduced in the Senate (S. 2010) by Sen. Joseph Lieberman, D-Conn.

Prison privatization has increased rapidly in the face of growing concerns over overcrowding, safety and poor health care in public institutions. Desire to control costs has also led to an increase in privatization. However, privately owned and operated facilities are not subject to the same FOIA scrutiny as public agencies. Although the press and public can retrieve information about privately run prisons from the Department of Justice, Federal Bureau of Prisons, Immigration and Customs Enforcement and other government agencies, private prisons remain largely outside the scope of FOI laws.

Of the almost 1.6 million prisoners in the United States in June 2007, 7.4% of them were held in privately operated correctional facilities, according to the June 2008 Bureau of Justice Statistics bulletin. At last count, in 2000, the BJS reported 264 private facilities under state and federal contracts used to house prisoners. And there were 5.4% more prisoners in private facilities in June 2007 than in June 2006, according to BJS. Private detention centers are also used to house immigrant detainees.

Two lawsuits filed in the last two months aim to force private prisons to release records, including one filed by the American Civil Liberties Union investigating the deaths of immigrant detainees in federal custody.

In May 2008, The Washington Post ran a four-day series investigating medical conditions in immigrant prisons. "Careless Detention" explored the deaths of 83 prisoners and detainees in custody between March 2003 and May 2008.

"Our correctional system is broken. It is overcrowded and unsafe," said Mike Flynn, director of government affairs for the Reason Foundation. "Contracting with private prisons gives us an ability to better manage outcomes. I think contracts should require certain benchmarks, like treatment programs, continuing education and job training." The Reason Foundation is a nonprofit think tank that promotes "libertarian principles, including individual liberty, free markets, and the rule of law," according to its Web site.

The largest private corrections-management service in the U.S. is Corrections Corporation of America, which is headquartered in Nashville. CCA posted $35 million in profits during the first quarter of 2008, according to a company press release. CCA and other private corrections companies have seen rapid growth from contracts with states and the federal government.

The Los Angeles Times reported in August 2007 that California state officials had signed a contract with CCA to hold about 4,000 prisoners for $63 per prisoner, per day. It would cost the state an average of $123 per prisoner, per day in a state prison.

As private corrections companies grow, so do questions about their methods, success and profitability. The recent lawsuits seek answers to some of those questions.

The ACLU filed an FOI lawsuit against the Department of Homeland Security last month in the U.S. District Court for the District of Columbia after DHS failed to turn over documents related to the deaths of immigrants held in public and private detention centers. The lawsuit also named Immigration and Customs Enforcement and the Office of the Inspector General for DHS.

"DHS must not be allowed to keep information about in-custody deaths secret," said Elizabeth Alexander, director of the ACLU National Prison Project, in a press release. "It is imperative that ICE be held publicly accountable."

Prison Legal News, a monthly magazine that covers prison issues, filed a lawsuit against CCA in a Tennessee court on May 19 after CCA did not respond to a public-records request. The lawsuit, Friedmann v. CCA, argues that CCA performs a public function, and its records should be public.

In 2002, the Tennessee Supreme Court ruled that a private company performing a public function must make its records available to the public under the Tennessee Public Records Act. In Memphis Publishing Company v. Cherokee Children & Family Services, the court ruled that a nonprofit social service agency under state contract had to turn its records over to the Memphis Commercial Appeal because it was the "functional equivalent" of a government agency.

"Public agencies cannot contract away the public's ability to review records that otherwise would be publicly accessibly under the state's open records law," said Paul Wright, editor of Prison Legal News, in a press release. "The public's right to know is not delegable to private corporations."

One FOI expert applauded the congressional bills that would make private-prison companies accountable to the federal FOIA.

"I think that is a long-overdue fix," Charles Davis, executive director of the National Freedom of Information coalition, said of the Private Prison Information Act of 2007. "This is a problem on the state level. This would fix it at the federal level in a way that would bring a whole lot of otherwise private operations into public scrutiny. We've seen lots of anecdotal evidence over the past decade for the need for public oversight and scrutiny."

Some aspects of private-prison contracts are already accessible under FOIA, however. Flynn of the Reason Foundation argued that those provisions provide enough information.

"The federal agencies that manage the contract with the private company are subject to the FOIA process. The agencies engage in regular and ongoing oversight of the contract, usually having [their] own employees in the facility full-time. All reports and studies from these monitors are subject to the FOIA process. Terms of the contract with the private company are subject to FOIA. Their progress in meeting any benchmarks detailed in the contract are subject to FOIA," said Flynn. "If there is relevant information that isn't available, it can be [added to] terms of the contract and then be subject to FOIA. There is no limit to what can be required to be disclosed to the agency, which would then be subject to FOIA."

Davis agreed that FOIA's coverage of contracts between the government and private-prison companies was important, but said it didn't go far enough.

"The contract piece is important and FOIA does do a good job with that," he said. "The contract data is just a sliver of the overall picture of what people should rightly have access to … . The vast majority of the information isn't covered."

Davis mentioned "inspection reports, incident reports involving inmate violence, and just about any narrative report documenting inmate treatment."

If the ACLU's or Prison Legal News' lawsuit succeeds in extracting records from private-prison corporations or if Congress passes the Private Prison Information Act, an increase in information from these prisons could bring light to a host of new issues. Some of these may well involve the First Amendment. U.S. courts frequently address issues related to access to publications, religious material, special diets and other claims of First Amendment violations from prisoners.

"I think you could get better protections," said Flynn when asked about the First Amendment rights of prisoners in private facilities, "because they can be detailed in a contract with the private company. These protections can be mandated into the contract rather than litigated later."

"The best part about having this information is that we would be able to act on it. Private companies can be fired. Public facilities cannot," Flynn said.

Said Davis, "When you start getting the human narrative of incident reports, what's going on in these prisons on a day to day basis, they could be rife with corruption or running like a Swiss cruise ship."

Melanie Bengtson is a senior studying political and economic development at Belmont University in Nashville.