Second Circuit Court of Appeals Rules Corporations Cannot Stop Release of Government Documents

February 8, 2017, New York – Today, the Second Circuit Court of Appeals dismissed an appeal by private prison corporations seeking to block the release of government documents about their immigration detention practices. A federal judge ruled in July, in a case brought by the Center for Constitutional Rights (CCR) and the Detention Watch Network (DWN), that under the Freedom of Information Act (FOIA) the government must release details of its contracts with private prison corporations. The government chose not to appeal, but the United States’ two largest private prison corporations,  the GEO Group and Corrections Corporation of America (CCA), recently rebranded as “CoreCivic,” intervened to stop the release and filed an appeal of their own.

“The court’s ruling is a victory against private prison corporations who are fighting hard to avoid accountability,” said Mary Small, Policy Director of Detention Watch Network. “It’s astounding that private prison contractors thought they had the right to dictate the scope of government secrecy. But the Second Circuit has shown that courts can still exercise oversight over frivolous attempts to hide the profiteering schemes that devastate immigrant communities and the American public. This victory is especially important as we face a presidential administration committed to mass privatization as well as mass detention and deportation.”  

“In a one-paragraph decision, the Second Circuit has rightly ruled that private contractors cannot be allowed to stand in the shoes of government and make decisions about dissemination of government information to the public,” said Jenny-Brooke Condon of the Center for Social Justice of the Seton Hall University School of Law, which co-counsels the case with CCR.  “CCA and GEO tried to interfere with the balance Congress sought to strike between the public and their elected representatives regarding the transparency appropriate in our democracy.”

“The Second Circuit found it obvious that private entities that take on public functions must be subject to public scrutiny,” said Center for Constitutional Rights Senior Staff Attorney Ghita Schwarz. “The court dismissed the private contractors’ baseless argument that they would be injured by the government’s reasonable decision to comply with a district court order to release crucial information. A decision to allow private companies to choose how the government informs the public about detention practices would be devastating to U.S. democracy and transparency principles.”

The Second Circuit’s decision lets stand the July ruling by  the district court, which rejected arguments by the Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE) that the terms of government contracts constitute corporate trade secrets that may be withheld from the public. The court reasoned that the contract terms were not “confidential commercial information” and that releasing them would not harm the competitive advantage of the private prison companies. The court also ordered the release of details about staffing levels of medical and social service personnel in privately-run immigration detention facilities. 

Detention Watch Network and the Center for Constitutional Rights filed the FOIA litigation to obtain information about the workings of the detention bed quota, which requires the funding of 34,000 immigration beds at any given time. DHS and ICE have interpreted the quota as a requirement that at least 34,000 immigrations beds must be filled at any given time, which attorneys say has rendered immigrants, including children and families, a source of profit for contractors.

In June, Detention Watch Network and the Center for Constitutional Rights released a report, Banking on Detention 2016 Update, showing the extent to which ICE grants financial benefits to private and public entities that detain immigrants through government contracts requiring ICE to pay for guaranteed minimums at detention facilities.

The case is Detention Watch Network et al. v. ICE et al.  Read today’s filing in the Second Circuit Court of Appeals here.