Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

March 11, 2015

The Honorable Sheila Jackson Lee
U.S. House of Representatives
2252 Rayburn HOB
Washington, DC 20515
Re: Private Prison Information Act of 2015
Dear Representative Jackson Lee:
We, the undersigned criminal justice, civil rights and public interest organizations and law firms,
respectfully request that you reintroduce the Private Prison Information Act during the 114th
Congress. As you know, this bill, which would extend Freedom of Information Act (FOIA)
reporting obligations to private corrections companies that contract with federal agencies—
including the U.S. Bureau of Prisons, Immigration and Customs Enforcement (ICE) and the U.S.
Marshals Service—is a critical first step in bringing transparency and accountability to the forprofit private prison industry. The bill also would extend FOIA reporting responsibilities to state
and local corrections agencies that hold federal prisoners.
With respect to for-profit private prisons, we are deeply troubled by the secrecy with which the
contract corrections industry continues to operate. Whereas the U.S. Bureau of Prisons (BOP)
and state departments of corrections are subject to the Freedom of Information Act and state
public records statutes, respectively, private prison firms that contract with public agencies
generally are not. This lack of public transparency is indefensible in light of the nearly $5.5
billion in federal contracts that Corrections Corporation of America (CCA) and The GEO Group
(GEO)—the two largest for-profit prison firms—have been awarded in the last five years alone.
This issue has received recent renewed attention, including a Feb. 2014 report by Citizens for
Responsibility and Ethics in Washington, “Private Prisons: A Bastion of Secrecy,” which called
for greater transparency in the private prison industry. Further, in October 2014, the Boston
University Law Review published “Private Prisons, Private Records,” which concluded, “Private
prisons should no longer be permitted to evade public scrutiny due to a technical distinction
concerning their legal status. The industry’s opacity presents a fundamental obstacle to effective
oversight by depriving the public of the ability to properly and empirically assess industry
performance.” The need for greater transparency in the private prison industry was also the
subject of a July 23, 2014 investigative project by MuckRock, a collaborative news site.

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We are encouraged by your re-introduction of the Private Prison Information Act last year,
which was reported by Mother Jones, The Crime Report, The Marshall Project, the Center for
Prison Reform, and the National Freedom of Information Coalition.
If private prison companies like CCA and GEO would like to continue to enjoy taxpayer-funded
federal contracts, then they must be required to adhere to the same disclosure laws applicable to
their public counterparts, including FOIA.
Why should private prison firms, which are funded exclusively with taxpayer dollars, be any less
accountable to the public than federal corrections agencies such as the Bureau of Prisons or ICE?
We contend that because the for-profit private prison industry relies almost entirely on taxpayer
support, and performs the inherently governmental function of incarceration—depriving people
of their liberty—the public has a right to access information related to private prison operations.
In short, the government should not be allowed to contract away the public’s right to know
with respect to housing federal prisoners and detainees in privately-operated facilities.
There is little taxpayer-accessible information that allows us to evaluate the performance of
private corrections firms in comparison to the public sector. Though the private prison industry
routinely cites its record in terms of efficiency and safety relative to public agencies, it
nonetheless refuses to disclose the very information required to substantiate its most basic claims
of success. Disclosure statutes that provide the public with access to information pertaining to
the operations of private prisons are vital if reasonable comparisons are to be made between the
private and public sectors.
As just one example, Professor Jacqueline Stevens at Northwestern University filed a FOIA
request with ICE, seeking copies of grievance logs at the CCA-operated Stewart Detention
Center—documents that would be subject to FOIA at public facilities. ICE responded on July 18,
2013, stating that “A search of the ICE Office of Enforcement and Removal Operations (ERO)
was conducted and no records responsive to your request were found.” This illustrates how the
current system of submitting FOIA requests to federal agencies for records maintained by private
prison contractors is inadequate, as some records are only kept by the contractors.
The time to reintroduce and pass this bill is now. Privately-operated facilities holding federal
prisoners have grown 600 percent faster than state-level contract facilities since 2010, and now
represent the fastest-growing corrections sector. Moreover, business from federal agencies like
the Bureau of Prisons, U.S. Marshals Service and ICE now accounts for a greater percentage of
revenue among private prison companies than ever before. CCA and GEO Group both receive
more than 40% of their gross revenue from the federal government.
In the past, critics of the Private Prison Information Act have argued that its passage would set a
“dangerous precedent” with respect to FOIA overreach. In his 2008 testimony before the House
Subcommittee on Crime, Terrorism and Homeland Security, Michael Flynn, the Director of
Government Affairs for the Reason Foundation, testified that applying FOIA to private prison
companies could open the “floodgates” to other federal contractors and, by extension, their
contractors and suppliers. “Thousands of individuals, small and large businesses, provide
services to the government and products to the government at great efficiency for the taxpayers
[and] all of that could be opened up to the FOIA process,” he claimed. He neglected to mention
that the Reason Foundation has received funding from private prison companies, including CCA
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and GEO, and ignored the fact that the Private Prison Information Act would apply solely to
contract facilities that house federal prisoners – not to any other federal contractor.
We squarely reject these unfounded assumptions, as the Private Prison Information Act would
apply narrowly and judiciously. It is unlikely that this bill, if enacted, would unwittingly extend
FOIA provisions to other private contractors, because private prison firms perform a unique
function relative to other private companies. To our knowledge, no other type of private industry
is contracted exclusively by the public sector to perform an essential governmental function such
as incarceration.
Further, revisions to the Private Prison Information Act since previous versions make it a more
focused bill. The bill now only applies to “information pertaining to facility operations and to
prisoners,” which addresses concerns that private prison firms might be subject to FOIA requests
concerning their corporate financial data or other records not directly related to their operation of
correctional facilities. The bill includes definitions for “contract facility” and “federal prisoner,”
and, as with previous versions of the legislation, all of the existing exceptions and exemptions
under FOIA would apply to contract facilities under the Private Prison Information Act.
That private corrections firms are supported exclusively by government contracts and enjoy the
benefits of operating within an artificial government contract-driven market makes them the
perfect candidates for FOIA compliance. In most economic sectors there is a free market
analogue for the many kinds of services that governments typically provide. A field such as
education, for example, has a robust market of existing non-profit and for-profit organizations
and agencies willing to provide services to a market of potential buyers that includes both
individuals and governments.
Such is not the case with for-profit, private corrections firms.
The private prison industry is fundamentally different in that no citizen can freely purchase
incarceration services as a private individual. There is no natural market for incarceration
services; the entire market would cease to exist without direct government intervention in the
form of taxpayer-funded contracts to private companies that operate correctional facilities.
We, the undersigned, submit that because private prison firms are ultimately functionaries of the
government, they must comply with the same FOIA requirements as their public counterparts.
We therefore ask that you reintroduce the Private Prison Information Act during the 114th
Congress, and we stand willing to support your bill. Should this letter generate any questions,
please contact Christopher Petrella at 860-341-1684 or cpetrella@post.harvard.edu, or Alex
Friedmann, associate director of the Human Rights Defense Center, at 615-495-6568 or
afriedmann@prisonlegalnews.org.

Respectfully,

American Friends Service Committee
American Society of News Editors
Architects/Designers/Planners for Social Responsibility
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Asian Americans Advancing Justice - Asian Law Caucus
Association of Alternative Newsmedia
Black & Pink
Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
Civil Rights Clinic, Michigan State University College of Law
Coalition for Prisoners’ Rights
Colorado Criminal Justice Reform Coalition
Colorado Prison Law Project
Criminal Defense Clinic, CUNY School of Law
D.C. Prisoners’ Project
Demos
Detention Watch Network
Enlace / National Prison Divestment Campaign
Florida Justice Institute
HEARD
Human Rights Defense Center
In the Public Interest
John Howard Association of Illinois
Justice for Families
Justice Strategies
JustLeadership USA
Koob & Magoolaghan
Legal Action Center
Lewisburg Prison Project
Media Alliance
Middle Ground Prison Reform
Muckrock (a collaborative news group)
National Center for Lesbian Rights
National CURE
National Freedom of Information Coalition
National H.I.R.E. Network
National Lawyers Guild Mass Incarceration Committee
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New England First Amendment Coalition
Partnership for Safety and Justice
Pennsylvania Institutional Law Project
Prison Activist Resource Center
Prison Policy Initiative
Private Corrections Institute
Private Corrections Working Group
Public Interest Law Group, PLLC
Southern Center for Human Rights
Texas Civil Rights Project
Texas Criminal Justice Coalition
Texas Jail Project
The Center for Church and Prison
The Fortune Society
The Legal Aid Society
The Real Cost of Prisons Project
The Sentencing Project
UC Davis School of Law Immigration Law Clinic
Urbana-Champaign Independent Media Center
Vermonters for Criminal Justice Reform

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