Private prisons can’t ignore public access laws

From the Fall 2001 issue of The News Media & The Law, page 20.

By Heather Palmer

The private prison has surfaced in recent years as a potentially strong investment market for the corporate world, business officials say. Detaining criminals in private prisons at a lower cost than state government apparently can yield significant profit opportunities.

But private prisons may offer very little in terms of access for reporters to examine records or to interview prisoners.

Because private companies operate these prisons, corporate officials assert that they don’t have to abide by the same statutory requirements as a government entity. Private prison officials say that means they don’t have to offer journalists the same rights of access that a state-owned prison allows.

But several cases in New Mexico, where a private prison refused to let members of the media attend the first appearance of a young man accused of murder, might answer some of those questions. One lawsuit in that state, in particular, contends that the Corrections Corporation of America, the owner of the prison, was a “custodian of public records” and did not have the right to conceal them.

The U.S. Supreme Court offers some guidance on the matter, ruling 20 years ago that private companies performing governmental functions for state governments could be sued for constitutional violations. But the status of federal contractors, which is governed by a different legal analysis, has remained an open question.

That question might be answered in the coming court term.

On Oct.1, the Supreme Court heard arguments in Correctional Services Corporation v Malesko. Malesko sued the Florida-based company for violating his constitutional rights. While Malesko was serving at a halfway house in Manhattan in the mid-1990s, he had a heart attack when a guard forced him to climb five flights of stairs. Malesko had permission to use the elevator because he had congestive heart failure.

A U.S. District Court judge in New York City dismissed the suit on the grounds that lawsuits can be filed against individuals but not against companies doing government business. The U.S. Court of Appeals in New York (2nd Cir.) reinstated the case, arguing that such lawsuits were permitted if the company was performing a governmental function.

In 1996, the New Mexico Foundation for Open Government sued Corrections Corporation of America for access to inmate records at the Sante Fe Juvenile Detention Center. An eventual settlement determined that the records are subject to New Mexico’s Public Records Act, Arrest Records Information Act, Children’s Code and other state open-access laws. It also said the company served as a “custodian of public records” as defined in the Public Records Act. (New Mexico Foundation for Open Government v. Corrections Corporation of America)

A few years later, Cornell Corrections took over the center and tried to make children’s records confidential. A lawsuit was filed, and Cornell opened the records.

But in August, the Correction Corporation of America, owner of the Cibola County Corrections Center, barred news reporters from the first court appearance of an Albuquerque man charged with murder. New Mexico is one of the few states that allow the court to hold an inmate’s first appearance before the court in prison instead of a public courthouse, a measure designed to cut costs and decrease security risks involved in transporting inmates.

Zacharia Craig, 19, was charged with murder after being accused of running down a state police officer Lloyd Aragon on Aug.1. Aragon was struck and killed on Interstate 40 west of Albuquerque when the truck Craig was driving smashed into the median.

Prison officials said the media was not granted access because 24-hour notice is required before visiting the location.

But open-government advocates say the restriction conflicts with guarantees of their right of access to criminal proceedings. They said that when journalists can’t attend judicial proceedings, the public is denied access to information to show whether courts are operating properly. And, they said it also conflicts with a year-old agreement between the U.S. magistrate court and the center to hold initial court appearances in the prison.

Bob Johnson, president of the New Mexico Foundation for Open Government, wrote a request to the magistrate court calling for a change in the policy. In the Sept. 7 letter, Johnson said that while the Craig case marked the first one at the prison that generated press interest, that wasn’t a reasonable excuse to exclude reporters.

“A private jail has no authority to overrule such law,” Johnson wrote. “It is not the job of the public to request special arrangements when a hearing is to be held in an unacceptable place with unacceptable rules.”

Johnson said neither the court nor the prison have replied to the letter. But he intends to pursue the issue.

“Just because they are a private prison working for the government does not mean they are exempt from the law or the constitution,” Johnson said.

Journalists need access to prisons in order to cover the conditions, inmates and other information important to the public, he said. Most of the prison companies either drafted their own access policies or claim to follow state or federal law.

The Corporations Corrections of America, the first private corrections company in the country, has a written policy controlling access to inmates. A journalist must send a written request for an interview to the government agency of jurisdiction, usually a state department of corrections, along with a copy to the facility warden or administrator. Approval to conduct an interview is subject to the prison’s jurisdiction, corporate policy and inmate consent.

The Wackenhut Corrections Corp., another private corrections company, requires a written request for an interview with an inmate. The request must be made to the corporate office, the state and the inmate. The inmate and the client must sign a waiver or give written consent to allow the interview to take place.

Cornell Corrections does not have a corporate policy but follows access laws of the governing state.