The Federal Bureau of Prisons (BOP) is facing a significant challenge to the relative secrecy in which it is used to operating.
Prisology, a nonprofit criminal justice reform organization, has announced that it has filed suit against the BOP, alleging that the agency has “flagrantly disregarded” important aspects of the federal government’s Freedom of Information Act (FOIA) through decades of noncompliance with laws that require it to post online substantial information about its day-to-day decision-making.
The suit, Prisology v. Federal Bureau of Prisons, was filed in United States District Court in Washington, DC.
Jeremy Gordon, General Counsel for Prisology, says that the litigation is groundbreaking. The BOP’s failure to comply with the 1996 amendments requiring online posting of data under the FOIA has thus far escaped judicial scrutiny. “Effective oversight of federal agencies is impossible where lawmakers and the public do not have information about agency operations and practices. At present, the BOP largely functions in a shroud of secrecy,” Gordon said.
The Freedom of Information Act
The Freedom of Information Act, 5 U.S.C. § 552 et seq. is a group of laws that require federal agencies to make available to the general public, the press, and private individuals, most of the records and files they compile in the course of their operations. The most well-known application of FOIA include records pertaining to the Kennedy assassination, the FBI’s investigations of Dr. Martin Luther King, Jr., and virtually every major political scandal.
In 1996, the Electronic Freedom of Information Act (E-FOIA) was enacted into law. In a nutshell, E-FOIA requires all federal agencies to post online all of its final opinions and adjudications of administrative matters; statements of policy and interpretations adopted by the agency but not posted in the Federal Register; and administrative staff manuals and instructions to staff “that affect a member of the public.” 5 U.S.C. § 552(a)(2)(A)-(C).
FOIA As Applied To BOP
According to Prisology’s suit (additional information concerning the suit can be found at http://prisology.org), the BOP has been flouting the 1996 E-FOIA laws since their enactment. Among the information that the BOP is not posting for public perusal are the agency’s responses to prisoner grievances and administrative appeals therefrom at the institutional, regional, and national levels; settlements outside of litigation between the BOP and employees, prisoners, and others; grants and denials of compassionate release requests by prisoners; decisions and settlements under the Federal Tort Claim Act and the Inmate Accident Compensation Program; and disciplinary reports involving its adjudication of serious prison disciplinary charges.
Prisology’s Executive Director, Brandon Sample, said, “[s]ince 1996, the BOP has flagrantly disregarded important amendments to the Freedom of Information Act. Through this litigation, we hope to gain greater transparency and accountability of federal prison operations.”
The Federal Bureau of Prisons: Billions In Budget, Little Public Oversight
The Federal Bureau of Prisons is a giant federal agency: its FY2015 budget request exceeds nearly $6.9 billion in funding. The BOP employs more than 39,000 federal workers, most of them represented by powerful labor unions. The agency operates 119 prisons as well as several administrative offices across the country. At present, the BOP confines some 216,775 men, women, and children in its prisons.
However, few Americans can name the BOP’s present director (Charles Samuels), nor are they likely to hear much about the agency’s actions in the press. The BOP has a long tradition of squelching media attention, and through aggressive — and expensive — litigation tactics, the agency vigorously defends against FOIA requests for information about its operations, citing “law enforcement exceptions” permitted under FOIA as tactics to defend against even mundane requests for information. Katherine White, an experienced prison litigator with https://www.prisonerresource.com/, says the BOP makes a common practice of deliberately citing FOIA exemptions, designed to protect law enforcement personnel from disclosures of information that could imperil their safety, in virtually every response to a FOIA request, even when the inappropriateness of the exemption is “patently obvious.” She said, “The BOP relies on a systemic policy of denying access to information through multi-level administrative appeals proceedings, and deliberate misapplication of simple FOIA rules — they do it because they know they can get away with it. Most of the time, the requests for information come from prisoners and their families, who simply don’t have the resources to engage in expensive, complex litigation over something as simple as how much money a prison spent on food last year.” White added, “I think Prisology’s suit is a real opportunity to bring these unfair practices to light.”
Potential Changes in BOP Disclosure Operations
If Prisology is successful in their challenge to the BOP’s online information policy, the result could mean substantial changes in the way the BOP operates. For example, policies and staff instructions on the controversial Inmate Financial Responsibility Program (IFRP) — which siphons millions each year from prisoners’ families — operates with only minimal public information available. Likewise, restrictive Special Management Units, in which an ever-growing number of prisoners are treated akin to those at Guantanamo Bay, have operated for almost a decade without even a federal regulation as oversight. The window of public perusal of such programs is, thus, vital to the public interest.
Prisology’s suit seeks declaratory and injunctive relief, toward the goal of making the monolithic BOP more accessible to the public. Said Benson Weintraub, Prisology’s Associate General Counsel, “With budgets nearing $7 billion a year, there is undoubtedly cost savings and improvements to be had in the BOP’s management, practices and policies. Through this litigation we will prove, in the words of Justice Brandeis, that sunlight is indeed the best disinfectant.”
(First published by BlogCritics.org; used by permission)