WASHINGTON – U.S. Senator Ben Cardin (D-Md.) and Congressman Jamie Raskin (D-Md.-8) today introduced a bill to require government agencies comply with Freedom of Information Act (FOIA) requests relating to private prisons, jails, or detention facilities that detain or incarcerate people for the federal government. The Private Prison Information Act of 2023 will be an important means for increasing transparency and holding private detention facilities accountable for their treatment of those in their custody.
“The operators of private prisons hide behind loopholes in the law when it comes to how they perform their job. If they continue to receive federal funds to house federal inmates and detainees, they must be held accountable to the same standards as our federal prisons,” said Senator Cardin. “Security breaches, overcrowding and misuse of funds were among the many reasons the President Biden called for an end to private prison contracts, but we are far from fulfilling this mandate. The need for accountability remains high.”
“Despite the fact that private, for-profit detention facilities receive federal funding, they are not subject to even the most basic transparency requirements of their public counterparts,” said Rep. Raskin. “I’m introducing the Private Prison Information Act to promote accountability in our justice system, shine a light on abuses taking place in private prisons and protect the rights of incarcerated people. Allowing the public to file Freedom of Information Act requests about private prisons, as they can with government-owned and -operated facilities, will educate the public about ongoing injustices in the criminal justice system and support President Biden’s ultimate mission to end all contracts with privately owned and operated detention facilities.”
Joining Senator Cardin as cosponsors of the Private Prison Information Act of 2023 are Senators Dianne Feinstein (D-Calif.), Cory Booker (D-N.J.), Peter Welch (D-Vt.), Ed Markey (D-Mass.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Conn.), Chris Van Hollen (D-Md.), Elizabeth Warren (D-Mass.), Patty Murray (D-Wash.) and Bernie Sanders (I-Vt.). House cosponsors include Reps. Suzanne Bonamici (Ore.-1), André Carson (Ind.-07), Hank Johnson (Ga.-04), Kweisi Mfume (Md.-07), Eleanor Holmes Norton (D.C.), Ilhan Omar (Minn.-05), David Scott (Ga.-13), Terri Sewell (Ala.-07), Rashida Tlaib (Mich.-12) and Bonnie Watson Coleman (N.J.-12). The legislation has been endorsed by the American Civil Liberties Union (ACLU), the National Immigrant Justice Center, and Citizens for Responsibility and Ethics in Washington (CREW).
“The Freedom of Information Act is a critical tool to ensure transparency and accountability of our government. Despite recent reforms, private prison companies hold tens of thousands of prisoners, and 80 percent of immigrants in detention for the federal government nationwide. Yet these corporations can evade basic transparency requirements about the treatment of people in federal custody,” said Eunice Hyunhye Cho of the ACLU National Prison Project. “The Private Prison Information Act will ensure that the public will have access to records necessary to hold them accountable.”
“Private contractors reap massive awards from the incarceration of people in detention facilities across the country,” said Jesse Franzblau with the National Immigrant Justice Center. “The private prison complex is plagued with secrecy that allows for misuse and waste of public resources with enormous human costs. Subjecting companies that profit off the detention business to stronger transparency requirements is critical in the broader efforts to end impunity for the gross rights abuses that are widespread throughout the detention system.”
“Despite their enormous cost to taxpayers and amid serious, longstanding concerns regarding their safety, efficiency, and cost-effectiveness, private prisons are currently exempt from information access laws like the Freedom of Information Act, leaving taxpayers completely in the dark and powerless to be informed and hold their government accountable for these contractors. The Private Prison Information Act would address these transparency loopholes and bring accountability mechanisms for privately operated facilities in line with their government-run counterparts. As long as our government continues to rely on profit-driven contractors to incarcerate and detain people, this legislation is urgently needed,” said Noah Bookbinder, president, Citizens for Responsibility and Ethics in Washington.
Private prisons, jails, and detention centers housed 15 percent of all federal inmates and about 79 percent of all immigrant detainees in 2021. Operators of private prisons are paid by the federal government – the taxpayer – to house federal inmates, but their status as private entities allows them to avoid the reach of our public records laws, including FOIA. Consequently, records that could help inform the public about their performance, such as incident reports, information on spending and misuse of federal funds, and communications between prison officials, are withheld from the public. The equivalent records for federally run facilities are subject to FOIA.
President Biden took an important step on January 26, 2021, by issuing an executive order directing the Attorney General to not renew the Department of Justice’s contracts with privately operated criminal detention facilities. Until this order is fully implemented, this legislation remains essential to hold detention facilities accountable, and in case a future administration reverses course. It also ensures that privately run immigration detention facilities, not generally covered by the President’s executive order, are subject to FOIA.
- Establishes a framework for agencies to ensure private corrections providers deliver access to records necessary for FOIA requests relating to prisons, jails, or detention facilities holding federal prisoners or detainees;
- Places the obligation to respond to FOIA requests relating to non-federal prisons, jails, or detention facilities holding federal prisoners or detainees on the federal contracting agencies, using existing FOIA procedures;
- Continues to allow the government to protect confidential, privileged, and sensitive information from public disclosure under existing FOIA exemptions and exclusions;
- Requires private corrections providers to maintain records which are readily accessible and reasonably searchable by the contracting Federal agency; and
- Requires agencies to promulgate regulations or guidance to ensure compliance with the outlined FOIA modifications within 180 days after the enactment date of the bill.