U.S. Magistrate Judge Janice M. Stewart has denied summary judgment to the federal Bureau of Prisons (BOP) in a suit filed under the Freedom of Information Act (FOIA) seeking copies of contracts between the BOP and private prison companies for the detention of non-U.S. citizens convicted of federal crimes.

In 2008, Stephen Raher, former co-coordinator of the Colorado Criminal Justice Reform Coalition, submitted a FOIA request for the contracts as part of a law school project. The BOP turned over several thousand pages of documents but many were heavily redacted. The BOP refused to release numerous other records.

Raher filed suit, arguing that the BOP had improperly withheld many of the requested documents. For example, the BOP claimed a “High 2” exemption – which applies to records about purely internal matters – for the redaction of portions of contract proposals submitted by various private prison firms, including CCA and GEO Group.

In a September 2, 2010 order, however, Judge Stewart found that the BOP had inadequately justified the use of the High 2 exemption. The “descriptions by BOP do not contain sufficient detail or information for the court to determine whether the information is used predominantly for internal purposes by BOP,” Judge Stewart wrote, noting that “The contract documents do not appear to be inherently internal documents....”

The BOP also claimed that some or all of the withheld records were exempt under Exemption 4 of FOIA, which exempts confidential commercial or financial information. For example, the BOP argued that line item pricing information could not be disclosed because doing so would impair market competition for future detention contracts and cause substantial injury to current contract holders.

Judge Stewart was skeptical, though. “BOP has provided no support for CCA’s contention that it faces day-to-day competition from businesses offering similar services,” she wrote.
In fact, it seemed to Judge Stewart that there was little competition between the various private prison operators. [See, e.g.: PLN, Oct. 2011, p.1].

“It appears that the BOP may have simply divided the number of prison beds needed among the bids it received, such that each submitter having the capacity to provide the required detention facilities and services was awarded a contract, regardless of the differences, if any, in such competitive factors as price, operational plans, staffing formulas, and so forth.”

There was also inadequate support in the record for the BOP’s claim of “substantial competitive injury” if disclosure of the line item pricing were to occur. “BOP asserts blanket generalizations regarding categories of price and cost information. It gives no explanation of the process by which a competitor could gain unfair advantage from [the] specific information it seeks to withhold,” Judge Stewart wrote.

Accordingly, the court denied the BOP’s motion for summary judgment. See: Raher v. Federal Bureau of Prisons, 749 F.Supp.2d 1148 (D.Or. 2010).

Private prison firm GEO Group later intervened in Raher’s FOIA suit in an effort to block the release of records related to the detention contracts. On May 24, 2011, the district court granted in part and denied in part Raher’s motion for summary judgment. The court noted that the U.S. Supreme Court had “invalidated the use of the High 2 exemption” in FOIA cases in its March 2011 ruling in Milner v. Dep’t of the Navy, 131 S.Ct. 1259 (2011); thus, the BOP could no longer rely on that exemption. The court further held that the BOP could not use Exemption 3, which is used to deny records that are exempted by federal statutes other than FOIA, nor could it rely on Exemption 7(E) related to law enforcement records.

Records that pertain to “physical security plans, blue prints, architectural floor plans, door and key lock specifications, ceiling plans, and any information regarding the internal physical structure of a BOP correctional facility” could be exempted from Raher’s FOIA request under Exemption 7(F). Also, the court found that the BOP had properly withheld some records under Exemption 4 concerning pricing information, past performance and technical proposals related to the contracts.

The district court analyzed other issues regarding the BOP’s refusal to release certain documents, including competition in the private prison market for BOP contracts, whether the release of such documents – including pricing structures – would result in “substantial competitive harm” to private prison firms, and whether some of the records had already been publicly released and thus could not be withheld by the BOP. See: Raher v. Federal Bureau of Prisons, U.S.D.C. (D. Or.), Case No. 3:09-cv-00526-ST; 2011 WL 2014875.

The BOP subsequently voluntarily released the contract pricing records without objection by GEO or CCA. This case remains pending, with the court conducting an in camera review of the disputed documents. Raher, now an attorney, is representing himself in the lawsuit.

“After two and a half years of equivocation and delay, the BOP has finally acknowledged the obvious – it must reveal the amount of money it pays private prison operators, and it cannot conceal the terms of the contracts it has entered into,” Raher said in a statement provided to PLN. “It is unfortunate that it took so long to reach this point, especially in an administration that claims to value openness and transparency.”

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