Bills, lawsuits attempt to thwart private prisons' escape from FOIA

Two Democratic lawmakers are looking to hold private prisons housing federal inmates to the same Freedom of Information Act standards as federal facilities. But while their bills sit in Congress, the First Amendment Center reports, open government advocates are coming at the issue from a different angle. 

Two recent lawsuits aim to increase the flow of information from private prisons using FOIA, according to the First Amendment Center. Last month, the ACLU filed a FOIA suit against the Department of Homeland Security in hopes of forcing the agency to hand over records on the deaths of immigrant detainees who were in the custody of private prisons.

And in May, the Center reports, Prison Legal News, a monthly magazine on prison issues, took the largest private prison-management service in the U.S., Corrections Corporation of America, (CCA) to court in Tennessee. CCA, whose headquarters is in Nashville, had refused the magazine’s public-records request.

Whether or not the lawsuits are successful, First Amendment advocates are still hoping Congress will pass the Private Prison Information Act of 2007, (H.R. 1889), and its identical Senate counterpart, (S. 2010). Introduced by Rep. Tim Holden, D-Pa. and Sen. Joseph Lieberman, D-Conn., the bills would require private prisons under contract with the government to comply with FOIA requests, just like federal agencies.   Both the lawsuits and the proposed legislation seek to remedy the discrepancy in records disclosure between federal and private prisons.    

According to the First Amendment Center, privately owned and operated facilities wouldn’t naturally be subject to FOIA. But concerns about costs, overcrowding and safety in federal prisons have lead to increased privatization of correctional institutions, and the shift isn’t slowing down. The Center reported that more and more inmates—and the records related to their care—are controlled by private prisons.    

First Amendment advocates argue that the government shouldn’t be able to avoid scrutiny by farming its public function out to private prisons, since the private correctional institutions are the functional equivalent of a government agency, the Center said. Currently, there’s no law that says private prisons have to fork over inspection reports or inmate violence write-ups the way federal facilities do. Only the contract between a private prison and the government is subject to FOIA.    

“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,” Paul Wright, editor of Prison Legal News, said, according to the First Amendment Center.