Court Won't Reconsider Private Prisons' Appeal

Last night, the two largest private prison corporations in the U.S. suffered their third defeat in the courts over whether they could keep the details of their government contracts secret. The full Second Circuit Court of Appeals declined to reconsider a decision by a three-judge panel dismissing their appeal as they sought to block the release of government documents about their immigration detention practices. In a case brought by Detention Watch Network (DWN) and the Center for Constitutional Rights (CCR), a federal judge ruled in July 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 appellate panel dismissed that appeal in February.

"The court's ruling is yet another 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 and a retrenchment in transparency in addition to increasingly aggressive detention and deportation."

"The Second Circuit has rightly ruled, again, 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 Jennifer-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 sought to interfere with the balance Congress sought to strike between the public and their elected representatives regarding the transparency appropriate in our democracy."

"The court has rightly affirmed that private corporations that take on public functions must be subject to public scrutiny," said Center for Constitutional Rights Senior Staff Attorney Ghita Schwarz. "This is an important decision at a time of increasing privatization and increasingly abusive immigration practices: private detention does not mean decreased transparency."

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. Critics say immigrants, including children and families, have been rendered 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 yesterday's orders from the Second Circuit Court of Appeals here and here.

Detention Watch Network (DWN) is a national coalition of organizations and individuals working to expose and challenge the injustices of the United States' immigration detention and deportation system and advocate for profound change that promotes the rights and dignity of all persons. Founded in 1997 by immigrant rights groups, DWN brings together advocates to unify strategy and build partnerships on a local and national level to end immigration detention. Visit www.detentionwatchnetwork.org. Follow @DetentionWatch.