Judge Tells Private Prison Corporation It's A Government Agency As Far As Public Information Requests Are Concerned

from the another-obvious-conclusion-that-took-a-lawsuit-to-reach dept

Wed, Mar 26th 2014 3:37am — Tim Cushing

Prison Legal News has been battling with the largest private prison corporation in the US, Corrections Corporation of America, over the control of records requested through a Texas Public Information Act request. The organization took CCA to court last May in hopes of kicking loose records pertaining to a now-closed prison.

Fortunately, almost a year later, a Texas judge has ordered the corporation to release the pertinent records.

A state judge ruled Wednesday that the nation's largest private prison company, the Corrections Corporation of America, is a "governmental body" for purposes of the Texas Public Information Act, "and subject to [the] Act's obligations to disclose public information."

The corporation had argued that it was exempt from public information requests because it was not a government agency. As Prison Legal News noted in its May 2013 filing for summary judgement, this distinction was meaningless on several levels. It pointed to the Fifth Circuit Court's "Kneeland test," a list of three specifications that, if met, would redefine a private corporation as a public entity due to the extent of its interaction and reliance on government bodies.

An entity that receives public funds is treated as a governmental body under the PIA:

1. unless the private entity’s relationship with the government imposes a specific and definite obligation to provide a measurable amount of service in exchange for a certain amount of money as would be expected in a typical arms-length contract for services between a vendor and purchaser;

2. if the private entity’s relationship with the government indicates a common purpose or objective or creates an agency-type relationship between the two; or

3. if the private entity’s relationship with the government requires the private entity to provide services traditionally provided by governmental bodies.

As the filing noted, CCA met all three requirements. The corporation receives public funds to run its prisons, receiving a certain amount of money per prisoner housed. It is also instructed to maintain critical systems, etc. at all times, despite a fluctuating inmate count, for which it also receives public funding.

Quite obviously, Texas and CCA are also reliant on each other ("agency-type relationship") in other ways. The state prosecutes criminals and needs somewhere to house them, which CCA provides. This also satisfies the third stipulation, that being that CCA provides a service normally provided by the government.

In a one-page ruling, the judge granted summary judgement, ordering the company to hand over records to Prison Legal News. This is one small victory against the increasingly privately-owned prison system in the US. By turning over imprisonment to private corporations, the US government has both perverted incentives (by making imprisonment a profitable enterprise) and allowed public records to be hidden away behind FOI exemptions meant to shield private companies' trade secrets from their competitors.

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Filed Under: foia, prisons, private prisons, public information act, texas
Companies: corrections corporation of america

23 Comments

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Ninja (profile), 26 Mar 2014 @ 3:32am

US. By turning over imprisonment to private corporations, the US government has both perverted incentives (by making imprisonment a profitable enterprise) and allowed public records to be hidden away behind FOI exemptions meant to shield private companies' trade secrets from their competitors.

I wonder.. Maybe hiding public record behind FOI exemptions was actually one of the motives behind the privatization of the jail system? Along obviously the profit of a few individuals. I'm inclined to think there aren't many private companies that deal with jails, are there?
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zip, 26 Mar 2014 @ 4:13am

It seems the private-prison industry has suffered quite a few setbacks lately. Chief among them, that they failed to sufficiently lobby state governments to prevent the passage of marijuana legalization laws.
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Anonymous Coward, 26 Mar 2014 @ 4:18am

Corporations are government too, my friend!
Is there any chance we might see this legal argument come up during the various NSA/telco lawsuits? And has this argument been used before?
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That Anonymous Coward (profile), 26 Mar 2014 @ 4:22am

I await the public to suddenly get shocked by the idea that some of these firms are paid more if we don;t have enough people locked up. That there is a perverse incentive to send more people to jail to avoid those penalties.

But then the outrage over the Judges who were sending kids who did stupid kids things for long stints in private facilities that paid the Judges died off pretty quick.
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Anonymous Coward, 26 Mar 2014 @ 4:40am

Re: Corporations are government too, my friend!
Eh, it's just another torturing of the Constitution to make the administrative logic of Shadowrun pre-emptively.
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Anonymous Coward, 26 Mar 2014 @ 5:35am

Re:
http://projects.huffingtonpost.com/prisoners-of-profit

Here's a great article Ninja , and you'd be surprised how many prisons and juvenile detention centers there actually are , here's another article about the kids for cash scandal
back in 2008 pretty sad imho https://en.wikipedia.org/wiki/Kids_for_cash_scandal
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Anonymous Coward, 26 Mar 2014 @ 5:36am

Re:
Indeed, I've read that private prisons get an average of $30,000 in revenue per prisoner. That's just about twice the annual minimum wage of $7.25 an hour.

Worse yet, private prisons pay BIG money lobbying state and local governments to have harsher penalties for breaking the law (as in more jail time), to help add more 'dollar generating' prisoners to their facilities.

In Arizona when they switched to private prisons recently, they agreed to have an audit to determine how cost effective private prisons were. When the audit came back that private prisons were BOTH more expensive AND less secure (far more prisoners escaped from Arizona's private prisons then public ones) the state legislators who supported private prisons in the first place voted to stop spending money auditing the private prisons. They justified stopping the audit as a 'cost saving' measure.
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Anonymous Coward, 26 Mar 2014 @ 5:44am

If you can sell and turn over a man woman or child's to life to a private corporation. It's pretty much slavery whether forced labor or not, to call it anything else is a lie.
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Anonymous Coward, 26 Mar 2014 @ 5:49am

Re:
It seems unlikely to take that kind of reasoning. More likely is it that the privatization of prisons was an opportunity to privatize that the political climate jumped on like stink on cheese. The FOI-implications only developed later during the late 80's.

In terms of running prisons there seems to be two huge players CCA and GEO group as well as several small ones. Prisons are to a large extend a question of the responsible politicians trusting that the private company can handle the issues, so ultimately it has a potential for being a very high value target of legal or less so political greasing.
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Anonymous Coward, 26 Mar 2014 @ 6:59am

Re: Re:
Yeah, that incident alone is proof that private prisons need to die horribly. Now if only we could charge them with felony murder for any suicides of the wrongly jailed. I'm no lawyer but it doesn't seem that far out of line given the standards of felony murder. If you can charge the getaway driver with murder because a guy had a heart attack during a bank robbery. That would be a beautiful case of justice through equality under the law.

Plus the juvenile justice system is clearly a kangaroo court that produces nothing but show trials. In any legitimate court it wouldn't be able to happen. Seriously, Civarella put kids away for things that aren't even a crime like making an obviously fake joke Myspace page. Hell, it isn't even worthy of a civil case!

I suppose given the lack of oversight we're lucky that juvenile prisons aren't turned into combination underage brothels and organ harvesting ring!
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Ninja (profile), 26 Mar 2014 @ 7:09am

Re: Re:
Thanks for the tips on the subject!
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Pragmatic, 26 Mar 2014 @ 7:35am

Re: Re:
Again with the question, where are those nuts who think private enterprise can do a better job than the government can at everything?

I believe in the value to society of a mixed economy. If we're going to let private companies run essential services, they need to run alongside publicly-provided ones. Those that compete on service generally do a better job because you're paying for convenience.
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John Fenderson (profile), 26 Mar 2014 @ 10:15am

Re:
I agree.

The entire notion of a private prison industry is an abomination on so many levels that it's hard to know where to begin.
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Anonymous Coward, 26 Mar 2014 @ 12:51pm

Re:
Not for a lack of trying though
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btrussell (profile), 26 Mar 2014 @ 8:40pm

Re: Re:
They sure were huffing and puffing.
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Pancho (profile), 26 Mar 2014 @ 10:51pm

Re: # of for-profit prison corporations
Between CCA and its similarly sized and equally larcenous and corrupt competitor, GEO Group, they hold over 40% each of all the prisoners/detainees in U.S. for-profit prisons. With Management and Training Corporation, not noticeably better, they hold about 90% of all such prisoners in the country.

There's no basis for believing that this was the purpose of putting some many people under the thumb of corporations, but municipal, state and federal agencies have typically used the relationship to hid the sordid nature of the conditions of confinement.

The for-profits spend millions annually on lobbying to put more people in jails, prisons and "detention" facilities, and millions more on campaign contributions.

Texas Attorney General and gubernatorial candidate Greg Abbott has been a major beneficiary of the latter.
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Pancho (profile), 27 Mar 2014 @ 12:23am

Re: Corrupt judges and Juvie Jails
Actually, those judges have remained in the public eye and a documentary about the case has gotten wide showings around the country recently.
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IrishDaze, 27 Mar 2014 @ 1:06am

Re: Re: Corrupt judges and Juvie Jails
Know the name of documentary? I'd like to look it up.
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R.H. (profile), 27 Mar 2014 @ 1:16am

Re:
You will note that both of the recreational-use legalizations were by way of voter referendum and not legislative action. It's somewhat harder to convince 50% + 1 out of millions of citizens of a particular point of view rather than the same proportion of a few dozen legislators.
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R.H. (profile), 27 Mar 2014 @ 1:24am

Re: Corporations are government too, my friend!
The problem there is the fact that the telecoms provide a service that the government has never provided (as far as I know), the telecoms aren't wholly dependent on that particular revenue stream for their core business, and this is only Texas state law not US federal law. I don't know if a similar provision exists at the federal level.
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Pancho (profile), 27 Mar 2014 @ 3:27am

Kids for Cash movie
Here's the URL for the trailer: http://kidsforcashthemovie.com/

The most interesting thing, perhaps, is never mentioned in the documentary. Almost all the kids who were essentially sold off to the for-profit prison industry were white kids. We know from decades of research that white kids have a tiny chance of going to jail or prison compared to black or Hispanic kids, even though their behavior and prior history might be insignificantly different.
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GEMont (profile), 28 Mar 2014 @ 1:02pm

Metadata Mining
Well, if these records have not yet been released, then methinks its time for some good old NSA blackmail letters to prove to certain officials the necessity of a full reversal of this decision, before the public can learn the truth about the For Profit Incarceration Industry.

Amazing how effective blackmail is when you have all the right Meta-dirt on people.

Metadata is gold!
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GEMont (profile), 28 Mar 2014 @ 5:26pm

Re: Re: Re:
or if the public had even the slightest capacity to direct the path of law .... simply make it the law that any publicly paid company doing public service must make all records of all transactions 100% transparent, immediately upon transaction completion and hold all records for open access by anyone at any time, forever.

This would have the desired effect of keeping private business like the Koch Brothers, completely out of the public service business, because absolutely no modern company, especially one run by the Koch Brothers, will ever allow its transaction records to become public.

Such an action would immediately eliminate most American Corporations over-night, as the public learned of the myriad crimes that constitute common business practices, or business as usual, in America today.

The difference between Modern Business and Organized Crime, is that the Mob ignores the law and uses lawyers after it gets caught to avoid punishment, while Modern Business uses lawyers to bend the laws to suit its needs and to keep from getting caught.

Otherwise, they are indistinguishable one from the other in every other respect.
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