Prison Publication Will Get BOP Documents And $420K

06/22/2017 12:21 am ET Updated Jun 22, 2017

Fourteen years ago, the nonprofit monthly magazine Prison Legal News filed a Freedom of Information Act request asking the Federal Bureau of Prisons for documentation of how much money the BOP had paid out over an approximately seven-and-a-half-year period (from 1996 through the end of July 2003) in judgments and settlements of lawsuits and claims against the agency. Besides a total outlay figure, it also asked for a copy of each lawsuit complaint or administrative claim involved.

The FOIA has deadlines for agency responses (in practice these are frequently not met), and exemptions shielding disclosure of certain types of information—for example, material that would reveal national security secrets or ongoing confidential investigations, or unjustifiably infringe personal privacy. But after two years had lapsed since the publication’s request without any response from BOP, the publication went to the D.C. federal district court to compel the agency to say if it had found any documents and to produce those, since no exemption was being claimed.

With the federal court now in the game, BOP began turning over approximately 11,000 documents, although about one-third of them had been redacted. If an agency determines a document contains material exempt from disclosure, under FOIA it must still disclose nonexempt portions of the document, although it can remove or make illegible portions exempt from disclosure, and the FOIA requester can dispute those removals.

Perhaps unsurprisingly, Prison Legal News and BOP didn’t see eye to eye on the completeness of the agency’s disclosures, or the accuracy of its exemption claims—the FOIA puts the burden of proving exemptions on the agency claiming them. The two sides deadlocked over more than 100 documents. The BOP’s exemption claims resulted in nearly 3,000 deletions, with the publication arguing BOP had not met its burden of proving how its document search was conducted. The publication also sought to avoid the search charges BOP wanted to impose. A D.C. district court judge ruled in favor of the publication on waiving search costs, but in March, 2013, handed BOP a summary judgment win on the completeness of its document production.

But that didn’t end the marathon fight. The publication appealed the judgment for BOP, and a three-judge panel of a federal appeals court eventually sent the case back to the lower-court judge, finding that BOP had neither shown it had correctly carried out the required search, nor justified the redactions it made. The agency had apparently relied on a compilation made by an in-house intern, which failed to cite facts to support any exemption claims. As an example, the appeals court noted, BOP’s analysis failed to distinguish between privacy claims for victims or witnesses of crimes, and those for criminal defendants.

With its FOIA performance headed back for another round in district court, and the appeals court already on record about the agency’s failures, the BOP bit the bullet on April 17th, and settled with the publication, agreeing to turn over not only the requested documents, but also $420,000.

This epic battle’s apparent moral: BOP will respond to FOIA requests, if you have persistent lawyers and 14 years to spend. When a skeptical appeals court is checking, you can get your requested documents, and taxpayers may compensate you for the agency stonewalling that you encountered along the way.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com and PrisonerResource.com.

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