Myth: Private Prisons have no transparency requirements and are not subject to The Freedom of Information Act (“FOIA”).
Approximately 8% of all U.S. prison beds and 9% of all inmates in federal prisons are housed in contractor-operated correctional facilities. The 9% of inmates in federal prison are almost exclusively criminal aliens- foreign nationals serving time for federal crimes committed in the U.S.
GEO Group is subject to FOIA requirements and public records requests and works with the government to make records publicly available pursuant to the Act.
- GEO Currently Complies with the Stringent Requirements of FOIA: FOIA already applies to records maintained by the Federal Government relating to federal correctional and detention facilities operated by contractors. The Bureau of Prisons (BOP) and U.S. Marshals Service (USMS) within the US Department of Justice (DOJ), as well as ICE within the Department of Homeland Security (DHS), already have elaborate procedures in place for making required information from contractor operated facilities available to the public.
- GEO Currently Works With the Federal Government to make records publicly available Pursuant to FOIA: Currently, GEO coordinates with FOIA officers within BOP, USMS, and ICE to assist the Government in releasing all information required under the law. GEO is in frequent contact with FOIA officers, and provides responsive records upon request so that our federal clients can fulfill their FOIA obligations. GEO only requests to protect information related to per diem rates and staffing plans, pursuant to the exemptions in the current law.
Proposals that seek to circumvent existing process and create a new FOIA requirement solely for the private corrections industry, such as the Private Prison Information Act, not only ignore the strict transparency requirements already governing the industry, but also have adverse consequences.
- Information Already Available Under Current FOIA Process: Existing protections provided by the FOIA for the release of contract prison pricing information are the same statutory protections currently afforded to all Federal contractors under FOIA. Award and pricing information for contract prisons are already publicly disclosed by federal agencies. What is protected from disclosure, pursuant to existing statutory exemptions for proprietary information and trade secrets, is unit pricing information. Eliminating that existing protection only for one specific industry could have the adverse impact of unit pricing for all civilian and defense government contractors being made public.
- The New FOIA Requirement Would Only Apply to One Industry that Contracts with the Federal Government: The proposed legislation would require private sector companies only in this one industry to establish their own business operation for receiving, processing, and responding to public records requests. This would impose upon these private sector companies a function that has historically been reserved or public agencies. Since this requirement would only apply to one specific industry that contracts with the federal government, it represents an unprecedented attack not applicable elsewhere within the realm of federal contracting.
- Circumvents Established Government Process and Takes Away Government Oversight: The proposed legislation would circumvent the current process and policies used by the BOP and other agencies to disseminate information regarding the housing and oversight of one segment of their inmate population. Further, the legislation would take the control of the FOIA process away from the government agencies (BOP and USMS) ultimately responsible to care for the federal inmate and detainee populations housed in contractor-operated facilities.
- Criticism Based on Misrepresentation of OIG Findings: The August 2016 Deputy Attorney General Memorandum, which instructed the Bureau of Prisons (BOP) to reduce its reliance on privately operated contract prisons, was based on a misinterpretation of a DOJ Office of Inspector General report. In fact, the OIG report acknowledged the difficulties in comparing privately-operated facilities, (almost exclusively housing criminal aliens) and publicly-operated facilities (primarily housing U.S. citizens) and conceded that the report was “unable to evaluate all of the factors that contributed to the underlying data, including the effect of inmate demographics.” The OIG report further demonstrated that privately operated facilities are at least as equally safe, secure, and humane as publicly run facilities and in fact, privately operated facilities experienced lower rates of: inmate deaths; guilty findings of inmate on inmate sexual assault, allegations of staff against inmate sexual assault; lower rates of positive drug tests; and lower rates of overall inmate grievances.