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Prison Legal News Wins FOIA Appeal Against BOP

Prison Legal News Wins FOIA Appeal Against BOP

by Derek Gilna

The federal Bureau of Prisons (BOP) hates publicity and hates revealing information about its operations to the general public. Recently, however, the DC Circuit Court of Appeals struck a blow for transparency by finding the BOP had failed to properly comply with a Freedom of Information Act (FOIA) request filed by Prison Legal News over a decade ago.

According to a June 5, 2015 statement by PLN editor Paul Wright, “Today the DC Circuit ... ruled unanimously in PLN’s favor that the BOP had improperly withheld documents and information related to the [agency’s] litigation payouts over a multiyear period.”

Specifically, PLN had submitted a FOIA request in 2003 for copies of the verdicts, settlements or releases in cases involving the BOP that resulted in monetary payments of $1,000 or more, as well as the related complaints or claims, from 1996 to 2003. The BOP initially refused to comply with the request or grant a fee waiver until PLN filed suit, then produced over 10,000 pages of documents that contained almost 3,000 redactions. [See: PLN, Sept. 2010, p.21; June 2009, p.26; Sept. 2006, p.15].

Following multiple cross-motions for summary judgment, redactions in around 102 documents remained at issue. In July 2013 the district court granted summary judgment to the BOP as to the propriety of those redactions, but the DC Circuit reversed and remanded on appeal, stating “more was required, both of the Bureau and the district court.”

The BOP had argued that privacy interests trumped the public’s need for the redacted information, including the names of federal prison employees. However, the DC Circuit wrote that the BOP’s justifications “lump[ed] the privacy interests of all claimants and any perpetrator or witness whose information is redacted into categories based on the type of document in which the individual’s information appears.... But the Bureau has made no effort to distinguish between the privacy interests of employees who are victims and those who are perpetrators. In fact, it has offered little support for redacting information that would identify perpetrators.”

Basically, the appellate court found problems with the BOP’s blanket assertion of privacy interests, as those interests depend in part on whether the person whose name was redacted was an accuser or the accused: “The public interest in disclosure will vary based on the individual’s role in a given claim – victim, perpetrator, witness, medical professional diagnosing an inmate, and so forth – and the nature of the claim itself.” In addition, “The district court failed to give any weight to the distinction between the accused and the accuser when balancing private and public interests.”

The DC Circuit noted that the BOP did not redact the name of an employee who had sexually assaulted a prisoner, but did redact the name of a BOP staff member who filed a tort claim after suffering an eye injury caused by another employee – an arbitrary application of privacy interests.

In conclusion, the Court of Appeals faulted the categorical approach used by the BOP, stating “the redactions in this case vary greatly, and the categories are not drawn based on the individual’s privacy interest or the public interest in disclosure.” Therefore, the district court’s summary judgment order was reversed and the case remanded for further proceedings in the decade-long litigation.

Wright noted that the district court had initially ruled that “PLN was entitled to a fee waiver as a news media entity, and PLN was the first organization to challenge the Bush administration’s use of excessive ‘fees’ to dissuade people from seeking public information” through FOIA requests.

PLN was represented on appeal by Ronald G. London and Lisa B. Zycherman of Davis Wright Tremaine LLP’s DC office, as well as Lance Weber, General Counsel of the Human Rights Defense Center, PLN’s parent organization. PLN is represented before the district court by Carl Messineo and Mara Verheyden-Hilliard with the Partnership for Civil Justice Fund, as well as DC attorney Ed Elder. See: Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015).

An amicus brief in support of PLN’s appeal before the DC Circuit was filed by nine organizations, including the Reporters Committee for Freedom of the Press, American Society of News Editors, First Amendment Coalition, National Press Club and Society of Professional Journalists.

Wright added that the fight to obtain information from the Bureau of Prisons continues: “Last week PLN filed another FOIA lawsuit against the BOP seeking their litigation payouts from 2003 to the present,” he said, referring to a similar suit filed in DC District Court on June 3, 2015. PLN will report on future developments in these FOIA cases.

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Related legal case

Prison Legal News v. Samuels