The DC Circuit Court has revived Prison Legal News' long-running FOIA lawsuit against the federal Bureau of Prisons. "Long-running" tends to describe a lot of FOIA litigation, but this particular case is the ultra-marathon of FOIA lawsuits.
In 2003, PLN filed a Freedom of Information Act (“FOIA”) request with the Federal Bureau of Prisons seeking all documents showing money the Bureau paid in connection with lawsuits and claims brought against it between January 1, 1996, and July 31, 2003.
That's right. Twelve years past its original request and the Appeals Court has reversed and remanded the decision to the district court to finally get it right. At the heart of the decade-plus legal battle is the supposed "categorical redaction" of personal information, which, upon examination by the Appeals Court, appears to be anything but categorical. It could charitably be called "inconsistent," despite the government's claims that it has a right to utilize a blanket exception.
But before we get to that point, we need to take a look at the past 12 years. PLN filed this request in 2003 and received no documents at all
until it sued the BOP two years later. At that point, the Bureau suddenly found 11,000 documents -- about a third of which were handed over in redacted form.
Of those, 102 are still being disputed. FISA-famous
Judge Reggie Walton (operating in his less-surveillance-oriented district court position) granted summary judgment in favor of the Bureau of Prisons in 2013 -- eight years after the Bureau first started releasing documents to Prison Legal News. The appeal of that decision leads us to where we are today: finally seeing an endpoint to a dispute over public records that is now entering its second decade of litigation and spans three presidential elections.
The Appeals Court disagrees
with Walton's concession to blanket personal information exemptions, mainly because the Bureau's careless application of this exemption showed little attention had been paid to the underlying information or truly weighed against the public's interest.
Both the final Vaughn index and the Moorer Declaration lump the privacy interests of all claimants and any perpetrator or witness whose information is redacted into categories based on the type of document in which the individual’s information appears. Both provide only cursory statements such as those described above to justify the redactions.
It's not that the government can't use categorial redactions, the Appeals Court explains. It's that it can't apply this exemption categorically when the redactions cover such a wide variety of information.
The categories, centered as they are on specific types of filed documents, include a wide range of claims covering various degrees of privacy interests. As PLN points out, the privacy interest of tort claimants will be different when they are claiming injury from a slip and fall as compared to a sexual assault. The EEOC claims also present a diverse picture and can hardly be considered a category that “‘characteristically support[s] an inference’ that the statutory requirements for exemption are satisfied.”
But the government has applied this categorical exemption, either due to laziness or a desire to obfuscate. The twelve-year legal battle suggests the latter. This isn't the only "failure" of the categorical redactions. In the disputed documents, the government decided privacy interests outweighed the public interest, no matter the underlying circumstances. The court finds this "inconsistent," at best.
There is another problem with the categorical approach here – it fails to distinguish between redacting the identity of the alleged victim and the identity of the alleged perpetrator. This distinction is significant with respect to the employees’ interest in keeping their information private. But the Bureau has made no effort to distinguish between the privacy interests of employees who are victims and those who are perpetrators. In fact, it has offered little support for redacting information that would identify perpetrators.
Even its inconsistency is inconsistent.
In addition, the Bureau has not been consistent in shielding the names of its employees accused of wrongdoing. While redacting the names of those accused of discriminating in Exhibits 1 (Doc. 110-5) and 2 (Doc. 110-6), it did not redact the name of a Bureau employee who was the alleged perpetrator of a sexual assault on an inmate in Exhibit 3 (Doc. 110-7). Joint Appendix 274, 291, 302. The Bureau never explains its inconsistency. Neither the Stroble Vaughn index nor the Moorer Declaration provides insight into why the names of some alleged perpetrators are redacted while others are revealed.
This arbitrary use of a blanket exemption leads to the ridiculousness of treating a minor injury as no different than five months of improper imprisonment… or alleged sexual assault by a prison employee.
In the scheme of things, one would think that an employee’s eye injury resulting from the throwing of a screw is vastly different from a sexual assault on an inmate and that the privacy interests of the victims and perpetrators in these two cases will be different. These examples are sufficient to show that the privacy interests involved in a given type of claim do not fall within a single category that “characteristically support[s] an inference that the statutory requirements for exemption are satisfied.”
In the end, the case is remanded to the lower court for further examination of the balancing of personal and public interest. The decision points out that this balance must be examined in detail and cannot be simply handed over to blanket exemptions, other than that of a few distinct individuals (medical professionals who treat inmates, inmates who have filed claims against prisons, etc.).
At some point -- even possibly this year -- Prison Legal News may finally receive the final documents it's been seeking for the last twelve years. I guess this shows the system still works, even if it routinely suffers from hard resets and significant downtime.