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PLN wins appeal in DC Circuit in FOIA case against BOP

www.law360.com, June 8, 2015. https://www.law360.com/articles/664321/dc-circ-...

DC Circ. Undoes Bureau Of Prisons Win In 12­-Year FOIA Fight

 
By Joe Van Acker
 
Law360, New York (June 5, 2015, 2:58 PM ET) ­­ The D.C. Circuit on Friday said the U.S. Federal Bureau of Prisons did not justify thousands of redactions in documents detailing costs it incurred from defending against lawsuits filed by prisoners and employees, which were requested by a non­profit’s prison news magazine in 2003.
 
The appellate court reversed an order granting summary judgment to the BOP — which had said its redactions fell under Freedom of Information Act exemptions for personal information and law enforcement investigations — finding that there wasn’t really any rhyme or reason to the categorical approach the BOP used when concealing information sought by Prison Legal News.
 
Paul Wright, director of the Human Rights Defense Center and editor of Prison Legal News, told Law360 that the monthly magazine wanted to uncover payouts that the agency had made, but was met with years of resistance.
 
“The fact that the BOP has waged a 12-­year, scorched ­earth battle to keep the public from knowing how their money is being spent is troubling to say the least,” Wright said.
 
The D.C. Circuit remanded the case with instructions that a federal judge balance the privacy and public interests at stake.
 
The BOP had concealed the names of not only prisoners and employees who filed claims against it, but also the names of agency employees targeted by those claims, which primarily involved the Federal Tort Claims Act and claims before the Equal Employment Opportunity Commission, according to the opinion.
 
The agency argued that revealing the names of individuals involved in claims against the BOP wouldn’t aid public understanding of the government, and said that some of its redactions were meant to avoid invasions of privacy.
 
But the D.C. Circuit said that the variety of claims — which ranged from slip­-and-­falls to sexual assaults — couldn't neatly fit into the categories the BOP had used to justify its redactions, and said the agency lumped alleged victims and perpetrators together.
 
“The Bureau has made no effort to distinguish between the privacy interests of employees who are victims and those who are perpetrators,” the court said. “In fact, it has offered little support for redacting information that would identify perpetrators.”
 
Wright said that the BOP has a history of being the least transparent of all federal agencies, including the NSA and CIA, and said the BOP is “remarkably hostile” toward journalists.
 
Wright added that the information Prison Legal News requested is extremely important because it’s possible that BOP employees involved in serious offenses have been able to rise through the ranks over the years due to the agency’s “wall of silence.”
 
Adam A. Marshall is a legal fellow for the Reporters Committee for Freedom of the Press, which filed an amicus brief on behalf of Prison Legal News, and said this case demonstrates that federal agencies need to justify their reliance on privacy exemptions and highlights the struggles that reporters and other citizens face when making FOIA requests.
 
“It’s ridiculous that under a law that says you should be getting a determination within 20 business days, it ends up taking years or decades in some cases for people to actually get a determination,” Marshall said.
 
Representatives for the U.S. Department of Justice declined to comment on Friday.
 
Prison Legal News is represented by Ronald London and Lisa Beth Zycherman of Davis Wright Tremaine LLP and Lance T. Weber of Human Rights Defense Center. The BOP is represented by Wyneva Johnson, R. Craig Lawrence, Alan Burch and Ronald C. Machen Jr.
 
The case is Prison Legal News v. Charles E. Samuels Jr., case no. 13­5269, in the U.S. Circuit Court of Appeals for the D.C. Circuit.