PLN Wins FOIA Suit to Gain Copies of BOP Verdicts and Settlements without Charge

by John E. Dannenberg

The United States District Court (D.D.C.) granted PLNs motion for summary judgment and
ordered the U.S. Bureau of Prisons (BOP) to provide investigative material requested by PLN under
the Freedom of Information Act (FOIA) without payment of search or duplication fees. PLN,
exercising its statutory right as a legitimate news media representative to seek BOP internal data
that would be of public interest, was rebuffed by the BOP when it refused to comply with PLNs
request for data concerning all litigation related payments against the BOP without PLN first
ponying up $6,944 in search costs, plus copying fees. The BOP refused to waive the fees,
claiming there was no interest in this information by the public at large.

Amazingly, the BOP claimed it did not have this information, the money and details on all money
it has paid out in litigation over a multi year period, available in any one location and that finding
the information would require a hand search of records at all 114 BOP prisons and jails. If true,
this shows a shocking lack of risk management. If not, it indicates a cavalier disregard for
truthfully responding to media FOIA requests.

PLN appealed the GOPs decision to the U.S. Department of Justice Office of Information and
Privacy (OIP) pursuant to 28 C.F.R. § 701.16(a) (2000). There, PLN, a non-profit organization,
properly reasserted its claim that the public has a great interest in the amount and manner in
which its tax money is spent, and in particular, in data on suits and settlements between the
BOP, its employees, prisoners, contractors and the public. The OIP denied PLNs appeal, citing
two factors. First, the OIP claimed that PLN had not demonstrated that it has both the intent and
ability to disseminate the requested records to the public, belittling PLNs print magazine and its
website as inadequate because there is no guarantee that the public will visit it. [Note: PLNs
website has received over 130,000 visitors in the past year or so.] Second, the OIP alleged that
some of the documents, namely complaints and verdicts, were already publicly available in
courts, and that supplying PLN with them would not enhance the publics understanding of the
government.

Dissatisfied, PLN sued BOP Director Harvey Lappin in federal court under the FOIA (5 U.S.C. § 552
(2000)). PLN demanded copies of prisoner complaints, settlements and claims showing the dollar
amounts paid, responsive pleadings, plaintiffs identifying information and amounts of attorney
fees paid -- all without payment of search fees and copying costs. PLN averred that it had 3,400
[today, over 4,700] subscribers to its printed editions in 50 states, with readership estimated at
18,000 [28,000], and that its investigative reporting would provide the public with a better
understanding of how the nations prison system is run vis-a-vis respect for prisoners
constitutional rights. PLN promised that it would make the information available both in its print
edition and on its website. The BOP opposed PLNs fee waiver request averring that PLN did not
explain how [the requested documents] would be of public interest. The matter was submitted
to the court on opposing motions for summary judgment.

As a threshold matter, the court rejected the BOPs complaint that only the DOJ (an agency),
and not Lappin, could be a legal defendant in an FOIA action. The court held that while Lappin
was not personally liable, PLN had sufficiently alleged that the BOP was the defendant.

Reaching the fee waiver question, the court first ruled that public interest is the proper
determinant, with the burden of proof falling to the requestor. PLN met the two tests of not
being a commercial operation and of contributing to public understanding of the government.
The court rejected the BOPs argument that because some of the documents might already be
available in remote court files, the BOPs centralized files need not be tapped. Importantly, the
court rejected the BOPs characterization of PLN as not having status as a member of the news
media. The court rejected the BOPs attempt to declare PLNs requests as too vague, agreeing
that the category of damage verdicts and settlements was more than sufficiently specific
(promoting public understanding of how prisons are managed) to meet the FOIA test.

Finally, and perhaps most satisfying, the court rejected the BOPs attempt to summarily dismiss
PLN as a nonentity unable to do what it says -- disseminate its word to the public. The court
held, Regardless of the viability of the PLN website as a mechanism for distributing the
requested information, with 3,400 reported subscribers and an estimated readership population
of 18,000, PLN has demonstrated its ability to distribute the printed journal to the public.

Accordingly, the court granted PLNs motion for summary judgment and denied the BOPs motion
for summary judgment. As this issue of PLN goes to press, the BOP has not indicated if it will
appeal the decision, nor has it provided the records requested. PLN was ably represented by Ed
Elder of the Washington DC law firm Klimaski and Associates. See: Prison Legal News v. Lappin,
2006 U.S. Dist. LEXIS 42738. The BOP has elected not to appeal this ruling. This is a final
decision on the merits.

Under the Bush administration denial of fee waivers and seeking huge amounts of search fees to
produce documents requested by public interest and non profit groups has become the norm.
Very few groups have the resources or ability to mount litigation challenging these surious and
illegal denials. PLN is one of the first nonprofit groups in the country to both challenge this Bush
administration policy and win a resounding victory.