The U.S. District Court for the District of Columbia held on August 1, 2024, that mortality reviews prepared by the federal Bureau of Prisons (BOP) following a prisoner’s in-custody death may properly be withheld or heavily redacted in response to a request made under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

The BOP prepares mortality reviews after in-custody deaths to document and assess the medical care that prisoners received. In 2020, Reason Foundation, publisher of Reason Magazine, filed a FOIA request for mortality reviews from two BOP lockups, the Federal Medical Center (FMC) in Carswell, Texas, and the Federal Correctional Institution (FCI) in Aliceville, Alabama. The agency produced 84 pages in full and 204 in part from FMC-Carswell, plus 23 pages in full and 39 in part for FCI-Aliceville. For the portions withheld, BOP cited several exemptions permitted under FOIA.

Reason sued in the district court and moved for summary judgment, challenging the agency’s reliance on Exemption 5 that protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency,” per 5 U.S.C. § 552(b)(5). Under this exemption, an agency is permitted to assert “the privileges that the [g]overnment could assert in civil litigation against a private litigant,” including “the deliberative process privilege,” as held in Nat’l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014).

The “deliberative process privilege,” in turn, covers “recommendations, draft documents, proposals, suggestions,” and similar documents; to determine whether documents are exempt under this privilege, courts consider whether records are “pre-decisional” or “deliberative,” meaning they were “generated before the adoption of an agency policy” or reflect “the give-and-take of the consultative process, ” as outlined in Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980).

The district court concluded that mortality reviews fall within this exception. First, they are “predecisional” because BOP’s purpose in preparing a mortality review is to determine “whether the inmate received adequate care and, if not, what should be done about it.” The reviews also “constitute an interim step (and an early one) in BOP’s decision-making process” regarding its response to a prisoner’s death. Moreover, the records are also “deliberative” because they “reflect the opinions and judgment of the members of the Mortality Review Committee” concerning adequacy of care a prisoner received.

In light of this, the district court held that BOP properly redacted most, but not all, of the mortality reviews requested by Reason. In a few instances, BOP waived the exemption related to several sections of the mortality reviews containing “checkbox questions” by voluntarily disclosing the narrative responses thereto. Other than this limited circumstance, however, the district court upheld BOP’s redactions pursuant to Exemption 5.

The Court also held that the BOP met its burden to show that the redactions were justified under the FOIA Improvement Act of 2016; that requires an agency to produce otherwise privileged information unless it “reasonably foresees that disclosure would harm an interest protected by” the FOIA exemption, as per 5 U.S.C. § 552(a)(8)(A)(i)(I). BOP met this standard by showing that mortality reviews are essentially part of the “peer-review process,” the Court decided, adding that public disclosure would “deter BOP employees from acknowledging mistakes in the future” and “significantly impact the [agency’s] healthcare delivery model.”

Accordingly, Reason’s motion for summary judgment was largely denied. The foundation was represented by Washington, D.C. attorney Deborah M. Golden. See: Reason Found. v. Fed. Bureau of Prisons, 2024 U.S. Dist. LEXIS 136096 (D.D.C. 2024).

The BOP’s high-handedness is not limited to FOIA requests but extends to disturbingly lengthy delays and obfuscations in death notifications, which prisoners’ families describe. After prisoner Fredrick Turner died at a BOP lockup in Colorado in June 2019, his sister Mandy Turner called repeatedly for five days trying to prevent his body from being cremated. But her calls went ignored, she said.

“[T]he thing that it made us feel is what the hell are they hiding?” added Turner.

She probably had a point. When a death certificate arrived weeks later, she was shocked to see the cause listed was complications from an appendectomy—an operation her brother never had, she said, inside or outside of prison.

The BOP ultimately changed the cause of death to suicide— maybe the prisoner tried to give himself the operation?—but “[t]o never know what really happened to my little brother is a life sentence for us,” Turner stated.

That maddening lack of answers has driven Florida attorney James Slater to file three FOIA suits on behalf of families of prisoners who died in BOP custody. Though basic information like a death certificate might avoid expensive discovery conducted by an attorney like him, the agency is certainly not upset when delays run out the clock on the statute of limitations. But as Slater noted, it is an “unacceptable reality” when “the only way families are able to understand what happened to their loved ones within the time frame to right any wrong is through a FOIA lawsuit.”  

Additional source: Reason Magazine

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