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Advocates Want Private Prisons Subject to Open Records Laws

Government accountability advocates have called for private prison companies like Corrections Corporation of America (CCA) and the GEO Group to be subject to open records laws – including the federal Freedom of Information Act (FOIA) – to ensure they are accountable to the public. This is especially important considering that private prison contracts are paid with public taxpayer funds.

A report from Citizens for Responsibility and Ethics in Washington (CREW) accuses private prison companies of manipulating their current immunity from most open records laws to cover up violations of prisoners’ rights and conceal their real costs.

“It makes no sense to exempt private prisons from the same transparency requirements already applied to government-run state and federal prisons,” said Melanie Sloan, CREW’s executive director. “Highly profitable private prison companies like [CCA] and the GEO Group have quite a deal: They take in taxpayer dollars without suffering taxpayer scrutiny.”

For-profit prison operators can skirt public records laws, including FOIA, due to their status as private entities. But clearly, companies like CCA and GEO are simply acting as surrogates for government agencies, and CREW and other critics of the private prison industry argue that open records laws should therefore apply to privately-run prisons.

“Privatizing entities once under exclusive governmental control has eliminated a key component of public accountability – access to information that explains how the prisons are being run, at what cost, and the extent to which they are engaging in abuses that deprive prisoners of their basic civil liberties,” the CREW report stated.

Of the more than 1.56 million prisoners held in state and federal facilities at the end of 2014, around 8% were housed in private prisons. CCA and GEO Group alone, meanwhile, took in a combined $3.3 billion in gross revenue that year.

“Private prisons are for-profit entities,” CREW said, “which makes them responsible to shareholders and the bottom line rather than the public.” The report also highlighted several examples where private prisons were subjected to public records laws, including a lawsuit brought by Prison Legal News against CCA in Tennessee.

Tennessee’s Court of Appeals eventually ruled in March 2013 that CCA was, in fact, required to produce records under the state’s public records law because it was the functional equivalent of a government agency. [See: PLN, March 2016, p.38; June 2013, p.14; Jan. 2012, p.45].

PLN filed a similar suit against GEO Group in Florida; while the case was pending, GEO relented and agreed to produce the requested records and pay PLN’s attorney fees. [See: PLN, June 2010, p.29]. Lawsuits filed against CCA by PLN in Vermont and Texas resulted in court rulings that the company was the functional equivalent of a government agency and had to comply with public records laws in those states. [See: PLN, April 2014, p.35; July 2013, p.42]. PLN had previously filed a public records suit against Prison Health Services (now Corizon Health) in Vermont, and the for-profit prison medical contractor settled the case by agreeing to produce the requested records. [See: PLN, Dec. 2012, p.16].

To force private prison companies to be more accountable to the public, CREW argued that the reach of FOIA must be expanded, such as extending the statute’s provisions to include federal contractors that operate detention facilities.

As recently as 2015, Congress had the opportunity to do just that when the Private Prison Information Act (H.R. 2470) was re-introduced – the most recent version of the bill since 2005. The bill was sponsored by U.S. Rep. Sheila Jackson Lee upon the urging of PLN managing editor Alex Friedmann and private prison researcher Chris Petrella. [See: PLN, March 2015, p.13].

But thanks to lobbying efforts by CCA – as indicated by the company’s federal lobbying disclosure statements – the legislation has never been voted out of committee. Obviously, private prison firms oppose increased transparency and public accountability.

“The private prison industry developed over a number of years, and did so without much attention paid to it,” the CREW report concluded. “Only by bringing transparency to the industry will taxpayers be able to learn if private prisons are worth the cost, and if they are equal to the responsibilities of traditional public prisons.”

Prison Legal News remains at the forefront of challenging the secrecy of private prison companies and holding them accountable under state public records laws. On March 4, 2016, PLN filed suit against Corizon in New Mexico after the company refused to produce documents pursuant to a state public records request. That lawsuit remains pending. See: Prison Legal News v. Corizon Health, County of Santa Fe, First Judicial District Court (NM), Case No. D-101-CV-2016-00610.

Sources: “Private Prisons: A Bastion of Secrecy,” Citizens for Responsibility and Ethics in Washington, (Feb. 2014); www.citizensforethics.org; www.salem-news.com

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