Let’s Bring Sunshine Into Private Prisons

January 29, 2015 10:31:16 am

By Alexa Capeloto

Will someone please sue the Corrections Corporation of America (CCA)? Or The GEO Group, Inc.? Or the Management and Training Corporation?

I don’t have a problem with these companies, per se. Nor am I saying they do anything particularly wrong or illegal as they operate private prisons on behalf of government agencies across the country.

But challenging them for information related to the 137 facilities they collectively manage in the U.S. might help tighten a loophole that government contractors often slip through with ease.

Even though incarceration is among the most fundamental of government functions, corporations contracted to run correctional facilities repeatedly deny Freedom of Information (FOI) requests, citing their status as private entities.

So while FOI requests can yield information from government-run prisons about staffing levels, budgets, rates of violence, prisoner demographics, security measures, health care and other critical issues, such records are often beyond reach at private facilities because sunshine laws generally apply only to public agencies.

This is significant given that, at last count, 8 percent of all prisoners and 49 percent of immigrant detainees were housed in privately run centers in the U.S. The number of people in such places has exploded since contracting began in the 1980s – up 1,600 percent from 1990 to 2009—as have the profits for major operators.

CCA, the largest among them, generated nearly $1.7 billion in revenue and netted a $300 million profit in 2013. Government contracts, funded by taxpayer dollars, form the vast majority of this revenue.

Greater accountability depends upon legislation or judicial intervention, and we can’t seem to count on lawmakers.

At the national level, Rep. Sheila Jackson Lee (D-Texas) just introduced a bill that would require nonfederal facilities holding federal prisoners “to make available to the public the same information … that Federal prisons and detention facilities are required to make available” under the Freedom of Information Act.

But the bill, called the Private Prison Information Act, is the sixth of its kind to be introduced by Democrats since 2005 (plus one from independent Joe Lieberman in 2007). It will probably follow the same path to nowhere as its predecessors—especially with CCA-friendly Republicans now controlling both houses of Congress.

At the state level, no legislation exists that explicitly extends public records laws to private prisons, though a number of states have broadened their statutes to apply to private companies working with government.

Florida’s Sunshine Law, for example, covers any “public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.” In Connecticut, the state Freedom of Information Act extends to anyone deemed the “functional equivalent” of a government agency.

Tennessee’s Open Records Act prohibits a government agency from “avoiding its disclosure obligations by contractually delegating its responsibility to a private entity.” Other states like Kentucky, Oklahoma and South Carolina peg disclosure requirements to public funding.

Most states, however, have no such acknowledgement of privatization in their public records laws. This failure has left courts to do the heavy lifting when private contractors deny FOI requests related to services once handled by government.

If state-by-state legislation is a hodgepodge, case law is even more so. Courts have been all over the map in determining whether nonpublic agencies or records should be subject to disclosure in cases of privatization.

When it comes to private prisons, courts in Florida and Tennessee, aided by their states’ broader sunshine laws, have explicitly applied those statutes to CCA. A state district court in Texas recently did the same.

The magazine Prison Legal News brought the challenges in Tennessee and Texas and filed another suit against CCA in Vermont in 2013, seeking information about settlement agreements with prisoners.

Denying CCA’s motion for dismissal, the trial court called the corporation’s privacy claim “anomalous and disturbing” because “it would enable any public agency to outsource its governmental duties to a private entity and thereby entirely avoid, intentionally or unintentionally, the fundamental interests in transparency and accountability that the (Access to Public Records) Act is designed to protect.”

The court predicted that the state Supreme Court would agree, but it never got that far. CCA provided the requested records before any judge could rule.

CCA’s capitulation averted a court battle that might eventually have set a precedent or guided other courts. The American Civil Liberties Union’s Dan Barrett, who helped represent Prison Legal News in the case, said he’s ready for another legal fight. He just needs another challenger.

Prison Legal News should be commended for combating CCA’s obfuscations again and again. So too should law student Mike Tartaglia, who recently outlined the larger issues at stake in an excellent Boston University Law Review article called “Private Prisons, Private Records.” They need some company.

Legislatures inevitably will have to acknowledge that privatization is rewriting the boundaries between public and private, necessitating an update of freedom of information laws. In the meantime, those with the resources and resolve should take this issue to the courts.

CCA spokesman Steve Owen told an independent Vermont newspaper that “transparency is a critical part of the relationships we have with our government partners and the taxpayers they serve. We comply with all applicable open records laws and share information freely with our government partners."

I don’t doubt his sincerity, but wouldn’t it be nice if the “applicable laws” erased any room for doubt?

Alexa Capeloto is an Assistant Professor of Journalism at John Jay College and former Enterprise Editor at the San Diego Union-Tribune. A regular contributor to TCR, she served as a judge in the 2014-2015 John Jay/HF Guggenheim Awards for Excellence in Criminal Justice Reporting. She welcomes comments from readers.