by Derek Gilna
When Congress passed the Freedom of Information Act (FOIA), 5 U.S.C. § 552, the theory was that it would inject some needed transparency into the federal government and make it easier for the public to obtain documents from federal agencies. However, such transparency has proven elusive.
When Prison Legal News submitted a FOIA request in August 2003, seeking “all documents showing all money paid by the Bureau of Prisons ... for lawsuits and claims” filed against the BOP from January 1, 1996 to July 31, 2003, it quickly became apparent that the agency would not produce the requested records without a fight. After almost 14 years of litigation, including an appeal to the D.C. Circuit, PLN finally prevailed in April 2017; the BOP not only released nearly all of the documents, but also agreed to pay $420,000 in attorneys’ fees and costs – one of the largest amounts in a FOIA case involving the federal prison system.
As part of its FOIA request, PLN, a non-profit, had requested a fee waiver which was summarily denied by the BOP. Shortly thereafter, in 2005, PLN filed suit in federal district court in the District of Columbia, arguing that it was entitled to a fee waiver; absent the waiver, the BOP had demanded payment of almost $7,000 for the requested records. PLN’s initial motion for summary judgment was granted in 2006. [See: PLN, Sept. 2006, p.15].
The BOP eventually produced over 11,000 documents, but most were so heavily redacted that they were useless. PLN then filed a second motion for summary judgment, contending that prison officials had failed to perform an adequate search for the requested records and that the redactions were excessive.
The BOP responded by submitting the affidavit of Wilson J. Moorer, a paralegal, attesting to the agency’s “good faith” efforts to produce responsive documents, but the district court was not persuaded. It held that Moorer’s affidavit was not based on personal knowledge, and ordered the BOP to utilize “search methods reasonabl[y] likely to discover records responsive to plaintiff’s request and which show that the responsive documents and parts of documents not produced to the plaintiff have been properly withheld under the FOIA exemptions claimed by the Bureau.” [See: PLN, June 2009, p.26].
The BOP produced additional records, but further disagreements resulted in both parties again filing cross-motions for summary judgment. This time the court ruled in favor of federal prison officials while allowing PLN to move for attorneys’ fees; however, PLN appealed and the D.C. Circuit reversed and reinstated the case.
The BOP continued to resist complying with the FOIA request with respect to certain redactions even after the case had been remanded, requiring additional pleadings by PLN’s counsel. Finally, as yet another set of cross-motions for summary judgment was scheduled to be heard, the BOP decided to settle the long-running litigation.
Pursuant to the settlement, PLN agreed that the BOP had sufficiently complied with its FOIA request, and although the settlement contained no admission of fault by the BOP, it required the agency to pay PLN’s litigation expenses of $420,000.
“This FOIA request and lawsuit spanned 14 years and three presidential administrations, and illustrates the total lack of transparency and accountability within one of the largest federal agencies and one of the world’s largest prison systems,” stated Paul Wright, executive director of the Human Rights Defense Center, PLN’s parent organization. “Those problems are far from resolved and we hope that other HRDC FOIA suits will eventually bring about compliance with the fundamental principles of open government, to protect human rights and ensure more accountability by government officials.”
Wright also thanked the attorneys who had worked for many years on the case, including sole practitioner Ed Elder, Mara Verheyden-Hilliard and Carl Messineo with the Partnership for Civil Justice, and Ronald London and Ashley Vulin with the law firm of Davis Wright Tremaine. He also extended thanks to PLN’s staff attorneys from 2009 to 2017 who participated in the case, including Dan Manville, Adam Cook, Lance Weber, Alissa Hull, Sabarish Neelakanta, Robert Jack, Monique Roberts and Masimba Mutamba. PLN paralegals Mel Motel, Sam Rutherford, Zach Phillips and Rachel Stevens also assisted during the litigation.
The settlement agreement was finalized and the case dismissed by stipulation on April 3, 2017. See: Prison Legal News v. Kane, U.S.D.C. (D. DC), Case No. 1:5-cv-01812-RBW.
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Related legal case
Prison Legal News v. Kane
|U.S.D.C. (D. DC), Case No. 1:5-cv-01812-RBW