A report by the government watchdog Citizens for Responsibility and Ethics in Washington (CREW) lays out the many obstacles to finding out what’s happening inside privately owned or operated prisons. CREW, Private Prisons: A Bastion of Secrecy (February 2014).
The report notes that the main federal law promoting government transparency, the Freedom of Information Act, doesn’t apply to private prisons. I make a similar point in a forthcoming essay in the Howard Law Journal:
That statute requires disclosure of all “agency records” except those specifically enumerated in the statute. Documents are “agency records” only if they were created or obtained by an agency subject to FOIA. According to the Court of Appeals for the District of Columbia Circuit—which disposes of 38% of FOIA cases and thus has an outsized impact on the development of FOIA law nationwide—documents created and maintained by a private entity are not “agency records” subject to FOIA’s disclosure requirements. Wolfe v. Dep’t of Health and Human. Servs., 711 F.2d 1077, 1082 (D.C. Cir. 1983). Applied to the immigration detention context that relies extraordinarily heavily on private prison operators, the D.C. Circuit’s conclusion suggests that documents created and maintained by private prison corporations that contract with ICE to provide immigration detention services are not “agency records” so long as they have not been handed over to DHS. As a result, prison documents related to confinement conditions can be kept from the public simply by not handing them over to DHS officials.
Even when documents about immigration detention centers are considered “agency records”—because they were created or obtained by a federal agency—courts have proven themselves quite reluctant to require disclosure. Despite the statute’s explicit requirement that courts review such decisions de novo, judicial review of agency decisions to withhold information requested under FOIA has been “less than vigorous.” According to an analysis done by Paul Verkuil, district courts affirm agency decisions about FOIA in a full 90% of cases—a far cry from the 60 to 70 percent agency win rate across standards of review. As Margaret B. Kwoka put it in her study of FOIA litigation, “contrary to Congress’s purpose, the judiciary has created a de facto system of deference in its judicial review of FOIA cases, while continuing to pay lip service to the de novo standard of review articulated in the statute.” Margaret B. Kwoka, Deferring to Secrecy, 54 Boston College Law Review 185, 187-88 (2013). The end result is that FOIA too fails to provide the public with a path through which meaningful oversight can result. In affirming agency decisions to withhold government records, the courts have made it more difficult for interested members of the public to learn about what happens inside immigration detention centers, in effect “deferring to secrecy,” as Kwoka characterized the judiciary’s treatment of FOIA litigation.
To ensure that this doesn’t change, the nation’s two largest private prison corporations have lobbied against attempts to expand FOIA’s reach to include private prisons. CREW, Private Prisons: A Bastion of Secrecy at 7.
CREW picks up on FOIA’s shortcomings by noting that advocates have had some success acquiring information about conditions in private prisons under state transparency laws. [Update (3/31/14): See, e.g., Prison Legal News v. Corrections Corporation of America, No. D-1-GN-13-001445 (Tex. Dist. Ct. March 19, 2014 (concluding that CCA is a “governmental body” under the Texas Public Information Act).] Though that is promising, it’s a limited option for people interested in learning about immigration detention because the largest detainee populations are in prisons operated on behalf of the federal government. It’s certainly true that DHS contracts with literally hundreds of county jails and some of those are privately operated. The difficulty for immigrants’ rights advocates is that each of those jails tends to hold a small number of detainees. To get information on a large number of privately run county facilities, therefore, would require a lot of effort.
In addition to shortcomings with transparency statutes intended to provide the public with a means of learning what happens behind closed doors, CREW also notes that private prisons don’t have to disclose information to internal government agencies that often function as de facto watchdogs. The Justice Department’s Bureau of Justice Statistics, for example, cannot require private prisons to provide it with key information about their operations. Id. at 11-12. This means that neither government auditors nor the public has the information necessary to gauge the value private prisons provide—whether measured from a strictly financial perspective or from a broader moral perspective that closely considers conditions of confinement.
Though private prisons aren’t unique to immigration detention, they are certainly very common. Approximately 8% of state and federal prisoners in the United States are held in privately owned or operated facilities, but roughly half to two-thirds of immigration detainees are under private company control.
As I write in the Howard essay, “Leading private prison companies Corrections Corporation of America (CCA) and GEO Group depend on DHS contracts for significant revenue streams, and have developed business models designed to accommodate DHS’s growing incarceration needs while simultaneously devoting substantial resources to lobbying state and federal government officials for policies that help develop their business goals.” CREW reports that “[o]ver the past two years, CCA and GEO Group have lobbied Congress on a number of issues related to their bottom line, such as the construction and management of privately operated prisons and detention facilities, and appropriations for both [the federal Bureau of Prisons] and ICE.” Id. at 6.
Despite the gloomy picture CREW paints about the public’s ability to know what is happening inside private prisons, it closes with hopeful solutions to the lack of transparency. Id. at 21-25. For one, Congress and states could legislatively expand transparency statutes such as FOIA to include private prison operators. They might also require government departments such as DHS to include in contracts with private prison companies disclosure of key data about costs and conditions, or simply authorize the Bureau of Justice Statistics to gather such information. Second, government agencies, especially inspector general offices at DHS and DOJ, could investigate private prison operations themselves.
Lastly, the report acknowledges that advocates “have not done enough to use the tools they possess to shine light on private prisons.” Id. at 24. Access to information held by the private prison companies may not be too promising under FOIA as it’s currently written and interpreted, but government agencies such as ICE might possess illuminating information that is subject to FOIA. “Potentially available information includes contracts these agencies have with the private prisons, communications with the private prisons, and reports and other items submitted to the federal agencies by the private prisons and their corporate parents” Id. at 24.