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Tennessee Court Again Orders CCA to Produce Records in PLN Public Records Case

On December 1, 2011, Chancellor Claudia C. Bonnyman of the Chancery Court of Davidson County, Tennessee issued a bench ruling directing Corrections Corporation of America (CCA), the nation’s largest private prison firm, to produce records in a long-standing public records lawsuit filed against the company.

The suit was brought by PLN associate editor Alex Friedmann. In 2007, CCA denied Friedmann’s request for records related to litigation filed against CCA and for reports or audits that found contract violations by the company, among other documents. The Chancery Court ruled in Friedmann’s favor in July 2008, finding that CCA was the “functional equivalent” of a state agency and ordering CCA to produce the requested records. [See: PLN, Oct. 2008, p.24].

On appeal, the Tennessee Court of Appeals affirmed the lower court’s finding that CCA was the functional equivalent of a government agency, noting, “With all due respect to CCA, this Court is at a loss as to how operating a prison could be considered anything less than a governmental function.”

The Court of Appeals remanded the case to the Chancery Court in September 2009 to determine whether some of the requested records did not fall within the definition of the public records act or constituted attorney work product, which would make them exempt from disclosure. CCA’s appeal to the Tennessee Supreme Court was rejected. See: Friedmann v. CCA, 310 S.W.3d 366 (Tenn.Ct.App. 2009), appeal denied.

Following remand, CCA produced a number of the requested records, including hundreds of pages from reports and audits in which CCA had been found in violation of or non-compliance with its contractual obligations to operate prisons and jails in Tennessee. However, CCA refused to produce copies of settlement agreements, verdicts or releases in cases where the company had paid damages or other monetary amounts to resolve lawsuits or claims; CCA also refused to release spreadsheets, database printouts or similar documents listing such cases.

At a hearing on November 1, 2011, Chancellor Bonnyman heard testimony from CCA general counsel Steve Groom and arguments from attorneys on both sides related to the records the company had refused to produce pursuant to Friedmann’s original public records request.

Friedmann entered as an exhibit at the hearing a spreadsheet listing cases that CCA had settled from 2001 through 2003, including the settlement amounts, which CCA had submitted as part of a contract proposal in Florida. Groom stated that the release of such information had been “inadvertent,” as almost all of CCA’s settlements are confidential.
However, he admitted that he had not contacted any of the opposing counsel in the cases where the settlement details were disclosed in the spreadsheet, even though CCA had apparently breached the confidentiality provisions of those settlements.

On December 1, Chancellor Bonnyman ruled against CCA, holding that the company, as the functional equivalent of a government agency, could not keep secret its settlement or verdict documents, nor its spreadsheets or database printouts listing resolved litigation against the firm. Such documents would be available under the public records act if requested from government agencies, which generally are not allowed to enter into confidential settlements.

“CCA is funded almost entirely by public, taxpayer money through government contracts,” said Friedmann. “The court’s ruling properly ensures that CCA is held accountable to the public to the same extent as government agencies, since CCA is performing a governmental function.”

Chancellor Bonnyman exempted from disclosure settlement documents that were sealed by order of a state or federal court. Further, CCA will first submit the spreadsheets and database printouts to the Chancery Court under seal for an in camera review.

“CCA has fought tooth-and-nail against disclosing these records for more than four years,” Friedmann stated. “This would not have occurred with a government agency, and evidences a significant problem with prison privatization: private prison companies like CCA prefer to operate in secret, with little transparency, and are not accountable to the public.”

“If CCA has nothing to hide, then they should have no problem producing documents that government agencies would have to produce,” Friedmann added. “Instead, CCA has indicated it will again appeal the court’s ruling, thereby removing all doubt that it prefers corporate secrecy over public disclosure, even though the company performs a governmental function and is paid with taxpayer funds.”

The case is Friedmann v. CCA, Chancery Court of Davidson County (TN), Case No. 08-1105-I. PLN was ably represented by Memphis attorney Andrew Clarke, who is seeking attorney fees from CCA for the company’s willful refusal to release the requested records after the case was remanded from the Court of Appeals.

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Related legal case

Friedmann v. CCA