Fourteen Years After Being Sued, Bureau Of Prisons Finally Settles FOIA Lawsuit

from the Forever-Litigation dept

A little less than two years ago, we covered Prison Legal News' FOIA lawsuit against the Bureau of Prisons. While we're aware litigation is seldom a swift process, PLN's ongoing lawsuit was particularly epic: twelve years after filing its initial requests for records covering a period from 1996-2003, the DC Appeals Court reversed the lower court's decision in favor of the US BOP and instructed it to order the government to hand over the requested records to PLN.

Two years after that ruling -- fourteen years after PLN sued -- the government is finally settling the case. The government Taxpayers will be paying out nearly a half-million dollars for more than a decade of government stonewalling and obfuscatory litigation.

From the decision [PDF]:

1. The parties do hereby agree to settle, compromise and dismiss the above-entitled action under the terms and conditions set forth herein.

2. Since Plaintiff filed Civil Action No. 05-01812, Defendant agency has produced material Responsive to the Freedom of Information Act (FOIA) request originally filed by Plaintiff; Plaintiff is satisfied with that production.

3. Defendant agency shall pay Plaintiff a lump sum of $420,000 in attorneys' fees and costs in this matter pursuant to 5 U.S.C. §552(a)(4)(e).

Despite the Appeals Court finding the BOP misused FOIA exemptions and engaged in wildly-inconsistent redactions, the settlement from the government comes with a "this isn't our fault" stipulation.

This Stipulation and Dismissal shall not constitute an admission of liability or fault on the part of the Defendant or Defendant agency or the United States or their agents, servants, or employees, and is entered into by both parties for the sole purpose of compromising disputed claims and avoiding the expenses and risks associated with further litigation.

If the government was really interested in "avoiding the expenses" of further litigation, you'd think it would have settled this case sometime during the last ten years. But the government wasn't interested in ending its litigation. It only decided to settle when it became apparent it wasn't going to win the case. Litigating further would have subjected it (or rather, US taxpayers) to an even larger legal fee payout.

This is how hard the government is willing to fight to keep public records out of the public's hands. Understandably, it was in no hurry to hand out evidence of crimes committed against prisoners by BOP employees, but power is supposed to be tied to accountability. The BOP doesn't care much for accountability or transparency. Since it has unlimited resources and time, engaging in a legal battle whose length rivals that of the War on Terror is no big deal. Only when faced with an inevitable loss did it finally concede, and its concession comes with "this isn't a concession" boilerplate attached.

Filed Under: bop, bureau of prisons, foia, lawsuits, public records

Twelve Years After Requesting Documents From Government, Prison Legal News Finally Scores Win From Appeals Court

from the so-much-for-simply-waiting-out-FOIA-requesters dept

The DC Circuit Court has revived Prison Legal News' long-running FOIA lawsuit against the federal Bureau of Prisons. "Long-running" tends to describe a lot of FOIA litigation, but this particular case is the ultra-marathon of FOIA lawsuits.

In 2003, PLN filed a Freedom of Information Act (“FOIA”) request with the Federal Bureau of Prisons seeking all documents showing money the Bureau paid in connection with lawsuits and claims brought against it between January 1, 1996, and July 31, 2003.

That's right. Twelve years past its original request and the Appeals Court has reversed and remanded the decision to the district court to finally get it right. At the heart of the decade-plus legal battle is the supposed "categorical redaction" of personal information, which, upon examination by the Appeals Court, appears to be anything but categorical. It could charitably be called "inconsistent," despite the government's claims that it has a right to utilize a blanket exception.

But before we get to that point, we need to take a look at the past 12 years. PLN filed this request in 2003 and received no documents at all until it sued the BOP two years later. At that point, the Bureau suddenly found 11,000 documents -- about a third of which were handed over in redacted form.

Of those, 102 are still being disputed. FISA-famous Judge Reggie Walton (operating in his less-surveillance-oriented district court position) granted summary judgment in favor of the Bureau of Prisons in 2013 -- eight years after the Bureau first started releasing documents to Prison Legal News. The appeal of that decision leads us to where we are today: finally seeing an endpoint to a dispute over public records that is now entering its second decade of litigation and spans three presidential elections.

The Appeals Court disagrees with Walton's concession to blanket personal information exemptions, mainly because the Bureau's careless application of this exemption showed little attention had been paid to the underlying information or truly weighed against the public's interest.

Both the final Vaughn index and the Moorer Declaration lump the privacy interests of all claimants and any perpetrator or witness whose information is redacted into categories based on the type of document in which the individual’s information appears. Both provide only cursory statements such as those described above to justify the redactions.

It's not that the government can't use categorial redactions, the Appeals Court explains. It's that it can't apply this exemption categorically when the redactions cover such a wide variety of information.

The categories, centered as they are on specific types of filed documents, include a wide range of claims covering various degrees of privacy interests. As PLN points out, the privacy interest of tort claimants will be different when they are claiming injury from a slip and fall as compared to a sexual assault. The EEOC claims also present a diverse picture and can hardly be considered a category that “‘characteristically support[s] an inference’ that the statutory requirements for exemption are satisfied.”

But the government has applied this categorical exemption, either due to laziness or a desire to obfuscate. The twelve-year legal battle suggests the latter. This isn't the only "failure" of the categorical redactions. In the disputed documents, the government decided privacy interests outweighed the public interest, no matter the underlying circumstances. The court finds this "inconsistent," at best.

There is another problem with the categorical approach here – it fails to distinguish between redacting the identity of the alleged victim and the identity of the alleged perpetrator. This distinction is significant with respect to the employees’ interest in keeping their information private. But the Bureau has made no effort to distinguish between the privacy interests of employees who are victims and those who are perpetrators. In fact, it has offered little support for redacting information that would identify perpetrators.

Even its inconsistency is inconsistent.

In addition, the Bureau has not been consistent in shielding the names of its employees accused of wrongdoing. While redacting the names of those accused of discriminating in Exhibits 1 (Doc. 110-5) and 2 (Doc. 110-6), it did not redact the name of a Bureau employee who was the alleged perpetrator of a sexual assault on an inmate in Exhibit 3 (Doc. 110-7). Joint Appendix 274, 291, 302. The Bureau never explains its inconsistency. Neither the Stroble Vaughn index nor the Moorer Declaration provides insight into why the names of some alleged perpetrators are redacted while others are revealed.

This arbitrary use of a blanket exemption leads to the ridiculousness of treating a minor injury as no different than five months of improper imprisonment… or alleged sexual assault by a prison employee.

In the scheme of things, one would think that an employee’s eye injury resulting from the throwing of a screw is vastly different from a sexual assault on an inmate and that the privacy interests of the victims and perpetrators in these two cases will be different. These examples are sufficient to show that the privacy interests involved in a given type of claim do not fall within a single category that “characteristically support[s] an inference that the statutory requirements for exemption are satisfied.”

In the end, the case is remanded to the lower court for further examination of the balancing of personal and public interest. The decision points out that this balance must be examined in detail and cannot be simply handed over to blanket exemptions, other than that of a few distinct individuals (medical professionals who treat inmates, inmates who have filed claims against prisons, etc.).

At some point -- even possibly this year -- Prison Legal News may finally receive the final documents it's been seeking for the last twelve years. I guess this shows the system still works, even if it routinely suffers from hard resets and significant downtime.

Filed Under: 12 years, appeal, bureau of prisons, delay, foia, journalism
Companies: prison legal news

Barrett Brown Loses Email Access For A Year After Using Email To Complain About Prison

from the that's-ridiculous dept

Last week, whistleblower Chelsea Manning was able to start tweeting from prison, while at nearly the same time reporter Barrett Brown lost his email access for an entire year for daring to email a journalist about bad prison conditions. If you don't recall, Barrett Brown is the reporter who was recently sentenced to more than five years in jail for reporting on the hacking actions of Anonymous. Bizarrely, the length of the sentence hinged on Brown's sharing a link in a chat room, even though the Justice Department dropped that particular charge. We also found it ridiculous that during the course of his trial, Brown was ordered by the court not to talk to journalists.

It appears that, once again, that was a part of the problem here. The judicial and correctional systems apparently really don't like it when you talk to journalists:

An hour or so after having used the system to contact a journalist about potential BOP [Bureau of Prisons] wrongdoing, Barrett Brown’s access to the TRULINCS prisoner e-mail system was restricted, for a full year until April 2016, without explanation.

This is contrary to the BOP’s own policy on several points, as noted in their 2009 documentation — the administration is only allowed to remove access to TRULINCS for thirty days pending an investigation of any potential misuse, and the inmate is supposed to be informed in writing of the reason for that.

But despite all of that, prison officials don't seem to care. They made it clear they just wanted to shut up Brown:

Barrett spoke to a supervisor this morning who told him that he lost his e-mail access because he was “using it for the wrong thing”. This refers to his contacts with the press. A review of his e-mail activity had been made, Barrett was also told by this person that he “wasn’t supposed to have” e-mail, when there’s been no such order or determination that we’re aware of.

Apparently, Brown had been talking to Glenn Greenwald about writing some articles for The Intercept, and that's what set off the Bureau of Prisons into a full-fledged lockdown on Brown's email account. Brown himself was later able to provide more details, suggesting a completely arbitrary process by a prison official:

Failing to find Mr. Coleman, I met that afternoon with Unit Manger Ivory, who checked my files but could find no reason why my access should have suddenly been suspended and also advised me to meet with Mr. Coleman. At some point that day, my attempts to log in started to prompt a different message stating: “This account is on suspension until 4/1/2016 11:59:59 pm (from portal 16)”. At the next lunch period on Thursday, April 2nd, I was unable to locate Mr. Coleman, but laid out my problem to the associate warden who told me to return in five minutes, when Mr. Coleman would be present.

I did so, and when I asked another group of prison officials if they knew where I could find Mr. Coleman, another individual came up to me and said that he was the person I was looking for. He pulled me aside and told me that he was the one who had cut off my email, as I wasn’t supposed to have access to it in the first place due to my charges. I noted that I had three charges and asked which one precluded me from using the email service. He told me to list my charges and I did so. He then added that he had done a review of my email correspondence and found that I had “been using it for the wrong thing.” I replied that I had simply been using it to communicate with the press. He confirmed that “that was the wrong thing.” I asked him his name, which he gave as “Moore”.

Yes, when you go to prison, you have given up a lot of your rights and freedoms. But this seems like a purely arbitrary decision to punish Brown for criticizing the prison system. And, it appears to be backfiring, only driving that much more attention to the issue.

Filed Under: barrett brown, bureau of prisons, email, glenn greenwald, journalism, prison, vindictive