[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
            PRIVATE PRISON INFORMATION ACT OF 2007 (PART II)

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 1889

                               __________

                             JUNE 26, 2008

                               __________

                           Serial No. 110-190

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                     U.S. GOVERNMENT PRINTING OFFICE
43-153 PDF                 WASHINGTON DC:  2009
---------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

MAXINE WATERS, California            LOUIE GOHMERT, Texas
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 26, 2008

                                                                   Page

                                THE BILL

H.R. 1889, the ``Private Prison Information Act of 2007''........     6

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     9

                               WITNESSES

Mr. Michael Flynn, Director of Government Affairs, Reason 
  Foundation
  Oral Testimony.................................................    11
  Prepared Statement.............................................    13
Mr. Alex Friedmann, Vice President, Private Corrections Institute
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
Mr. Tom Jawetz, Immigration Detention Staff Attorney, The 
  American Civil Liberties Union National Prison Project
  Oral Testimony.................................................    56
  Prepared Statement.............................................    58

                                APPENDIX

Material Submitted for the Hearing Record........................    75


            PRIVATE PRISON INFORMATION ACT OF 2007 (PART II)

                              ----------                              


                        THURSDAY, JUNE 26, 2008

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:05 p.m., in 
Room 2237, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Gohmert, Coble, and Chabot.
    Staff Present: Bobby Vassar, Subcommittee Chief Counsel; 
Kimani Little, Minority Counsel; Jesselyn McCurdy, Majority 
Counsel; Rachel King, Majority Counsel; and Ameer Gopalani, 
Majority Counsel.
    Mr. Scott. The Subcommittee will now come to order.
    I am pleased to welcome you today to the hearing before the 
Subcommittee on Crime, Terrorism and Homeland Security on H.R. 
1889, the ``Private Prison Information Act.''
    H.R. 1889 requires prisons and other correctional 
facilities holding Federal prisoners under a contract with the 
Federal Government to make the same information available to 
the public that Federal prisons and correctional facilities are 
required to release under the Freedom of Information Act, or 
FOIA.
    On November 8, 2007, the Subcommittee held a hearing on the 
bill in conjunction with a hearing on the Prison Litigation 
Reform Act. Representative Tim Holden, the lead sponsor of the 
bill, was the only witness to testify before the Subcommittee 
on the panel regarding H.R. 1889. Neither majority staff nor 
minority staff was made aware of any opposition to the bill, so 
at the time of the November hearing H.R. 1889 did not appear to 
be controversial amongst Subcommittee Members, or anyone else 
for that matter.
    Shortly after the hearing, the Corrections Corporation of 
America contacted Subcommittee staff to express its strong 
opposition to the legislation and question the necessity of the 
bill. However, organizations such as the advocacy group, 
Private Corrections Institute, PCI, and the American Civil 
Liberties Union supported the legislation, claiming it was 
difficult for them to obtain information from private prisons 
through the regular FOIA process of seeking the desired 
information through the request to the Federal Bureau of 
Prisons.
    We decided to hold an additional hearing now to allow all 
parties to put their positions on the record and to give 
Members more information on the pros and cons regarding the 
bill.
    Unfortunately, CCA has chosen not to testify today even 
though it has been the organization most vocally opposed to the 
legislation. They have submitted a written statement noting 
their opposition. And, without objection, I have made that part 
of the hearing record.
    [The information referred to follows:]

    
    
    
    
    
    
    Mr. Scott. So what started out to be an easy, 
straightforward bill has turned out to be more complicated and 
controversial than we first knew. And there seemed to be a 
general distrust of private prisons, and many believe that they 
purposely hide information from the public. In addition to PCI, 
the ACLU has put together a number of examples of how private 
prisons escape oversight by not being required to respond to 
FOIA requests.
    On the other hand, CCA asserts that it complies with FOIA 
through the Bureau of Prisons or other Federal agencies, and 
the current system works. They also point out that to pass H.R. 
1889 would have the effect of putting private prison 
contractors in a different position vis-a-vis other Federal 
contractors, which could significantly change the FOIA process 
in ways that may not have been intended by this bill.
    With that, I will now recognize the Ranking Member of the 
Subcommittee, the gentleman from Texas, Judge Gohmert.
    [The bill, H.R. 1889, follows:]

    
    
    
    
    
    
    Mr. Gohmert. Thank you, Chairman Scott.
    And this is, as you said, our second hearing on this 
legislation. Our first hearing was held in November of last 
year. On that date, the Subcommittee also considered H.R. 4109, 
the Prison Abuse Remedies Act, a bill that made substantial 
changes to the Prison Litigation Reform Act. H.R. 4109 
commanded most of the Subcommittee's attention that day, and I 
believe it overshadowed our consideration of H.R. 1889.
    Since last November, I have had an opportunity to review 
the testimony of the sponsor of H.R. 1889, Mr. Holden. In his 
testimony, he describes the need to ensure that information 
regarding private prisons is readily available to the public. 
He proposed H.R. 1889 as the proper means to accomplish that 
goal.
    Since November, I have also had the opportunity to hear 
from other advocates that support this legislation, as well as 
others who oppose it. After reviewing all the available 
information, I, too, have my serious concerns.
    H.R. 1889 extends the Freedom of Information Act reporting 
obligations imposed on Federal agencies to private companies 
that contract with Federal agencies to house prisoners. These 
companies, obviously, are commonly called private prisons.
    I support the Freedom of Information Act. It has done a 
great deal of good. I support the goal of providing information 
to the public. However, I think that the existing Freedom of 
Information Act framework does accomplish that goal. It is 
normally unnecessary and unwarranted to impose Freedom of 
Information Act obligations directly on private companies 
because of contracts with the Federal Government, and actually 
opens a gate that could, and I believe would, become a 
floodgate.
    Congress passed the Freedom of Information Act to ensure 
open government. FOIA, as its initials cause it to be called, 
allows the public to gather information, upon request, from 
Federal Government agencies unless that information is properly 
withheld because of privacy, law enforcement, trade secret, 
national security or other concerns.
    It was the intent of Congress to allow the public to peek 
behind the curtain of the Federal Government and to let people 
see how their tax dollars are being spent. Congress determined 
that FOIA was a reasonable burden for Federal agencies to bear. 
Foisting those same burdens on private entities certainly 
appears overburdensome.
    Proponents of H.R. 1889 attempt to justify singling out 
private prisons to bear the burden of FOIA obligations by 
asserting that housing prisoners is a core and a unique 
governmental service. However, this limited test, providing a 
core and unique government service, could be used to impose 
FOIA on every class of Federal contractors, including those who 
take out the Government's trash and recycling.
    This is a dangerous precedent, I believe, that we should 
not set without careful consideration of the likely 
consequences. Chief among those likely consequences is 
increased costs. If passed, the bill would cause every private 
prison with a Federal contract to hire lawyers to receive and 
reply to FOIA requests. These costs will be passed along to 
Federal agencies. That will occur even though these same 
agencies already have offices that exist specifically for the 
purpose of processing FOIA requests.
    Imposing FOIA on private entities will create a duplicative 
process that will waste taxpayer dollars. This certainly seems 
unwarranted, especially when one considers that it is yet to be 
demonstrated that information about private prisons cannot 
already be obtained through a FOIA request to the responsible 
Federal agencies.
    There is not a single example, that I am aware of, of a 
FOIA request regarding a private prison that was properly made 
to the appropriate Federal agency which was refused. If someone 
has evidence to the contrary, we will welcome seeing that, as 
well.
    We should not create legislative fixes to address problems 
that do not exist. Without clear evidence of the failure of the 
existing FOIA regime to properly work, it is difficult to 
support legislation that would take the huge step of imposing 
FOIA obligations on potentially all private entities.
    So, at this point, I am in opposition to the Private Prison 
Information Act, and will yield back the balance of my time.
    Mr. Scott. Thank you.
    Our first witness on the panel will be Mike Flynn, the 
director of government affairs for Reason Foundation, the 
nonpartisan think-tank whose mission it is to advance a free 
society by developing, applying and promoting libertarian 
principals, including individual liberty, free markets and the 
rule of law.
    He is a graduate of the University of Iowa, where he 
studied English and Economics. He has more than 15 years of 
experience in the development, implementation and analysis of 
public policy. He has provided his expertise to a number of 
nonprofit organizations.
    He began his public policy career in the Illinois General 
Assembly, where he worked as an analyst, both in the Capitol 
and in the Assembly's Washington, D.C., office.
    The next witness will be Alex Friedmann, vice president for 
Private Corrections Institution, Incorporated. He is the 
associate editor of Prison Legal News, a monthly publication 
that reports on corrections and criminal justice-related issues 
nationwide. Prison Legal News has been published since 1990 and 
has extensively covered the private prison industry.
    He also serves in the voluntary, noncompensated capacity as 
vice president of the Private Corrections Institute, a 
nonprofit organization that opposes prison privatization.
    He is presently a plaintiff in the lawsuit filed against 
CCA due to CCA's refusal to comply with Tennessee's public 
records law.
    Our final witness will be Tom Jawetz, who is the 
immigration detention staff attorney for the National Prison 
Project of the ACLU Foundation.
    He graduated from Yale Law School in 2003 and served as a 
law clerk for the Honorable Kimba Wood, United States District 
Court, Southern District of New York. He works on a wide range 
of issues dealing with the conditions in which immigrant 
detainees are housed, and has co-counseled several lawsuits 
involving issues ranging from overcrowding to poor medical 
care.
    Prior to joining the ACLU, he worked in the Immigrant and 
Refugee Rights Project of the Washington Lawyers' Committee for 
Civil Rights and Urban Affairs.
    I welcome all of our witnesses to us today, and thank you 
for joining us today.
    Your written statements will be entered into the record in 
their entirety, but I would ask you to summarize your testimony 
in 5 minutes or less. And there is a timing device where the 
light will be green and turn yellow with 1 minute left and red 
when your 5 minutes have expired.
    We want to recognize the gentleman from North Carolina, Mr. 
Coble, who has joined us today.
    We will start with Mr. Flynn.

            TESTIMONY OF MICHAEL FLYNN, DIRECTOR OF 
             GOVERNMENT AFFAIRS, REASON FOUNDATION

    Mr. Flynn. Chairman Scott, Ranking Member Gohmert, Members 
of the Subcommittee, thanks for this opportunity testify today. 
I am especially grateful for this opportunity because this 
issue touches on a lot of areas of Reason's work.
    For 40 years, we have conducted research showing how the 
market and competition can improve the delivery of government 
services. We have also worked to reform the criminal justice 
system. We, for example, propose a number of initiatives that 
would reduce or even eliminate jail time for nonviolent drug 
offenders as a way to reduce our very high incarceration rate.
    We also publish Reason Magazine, an award-winning magazine 
where we address public policy through journalism. And so we 
use the FOIA process quite a bit. Most recently, we used it to 
expose some prosecutorial misconduct in Mississippi. You would 
be hard-pressed to find bigger champion of the FOIA process 
than Reason Foundation.
    That said, to extend the FOIA to private companies, whether 
it is private correctional companies or other Federal 
contractors, we believe is at best misguided and at worst it 
would create a host of unintended consequences.
    First, we find that extending the FOIA process to private 
prisons is unnecessary. Currently, right now, when a Federal 
agency contracts with a private prison, they have employees who 
are on-site who monitor the contracts. There are a number of 
contracts and reports and audits that are submitted to the 
Federal agencies. All of those can be FOIA'ed. You can use the 
FOIA process to look at all that information.
    Now, I know proponents of this legislation say there are 
some other aspects that we can't get to. We can't find out 
about training for prison staff or find out about wages or 
experience or turnover. But there is a very simple solution to 
that: Require it in the contract.
    There is no prohibition on what the Federal agency can put 
in the contract with a private entity. They can stipulate 
certain training levels. They can stipulate certain 
compensation levels. They could actually make a contract that 
would require disclosure of more information than you would 
have under a FOIA. Only the imagination of Federal officials 
keeps us from having this information.
    Second, this would set a very dangerous precedent. I mean, 
governments have incredible sovereign powers to tax us, to 
regulate us, to prosecute us. Because of this, we have the FOIA 
process so that we can look at how the government is doing its 
work and make sure that they are acting in an honest and open 
and fair manner. Private companies do not have this power. So 
it is a very different place.
    Now, there is no reason, if you extend this to private 
prison companies that you should, that it could not also be 
extended to any other Federal contractor and, by extension, 
their contractors and their suppliers. Thousands of 
individuals, small and large businesses, provide services to 
the government and products to the government at great 
efficiency for the taxpayers. All of that could be opened up to 
the FOIA process. Competitors could use it to find out trade 
secrets. You know, you could find out proprietary software 
code. You could use it as a tool to poach staff. It is an 
invasion of privacy that we think just isn't warranted in this.
    And, finally, I think the real problem with this--and let's 
be honest that--and it should be pointed out that most of the 
organizations that support this are primarily against prison 
privatization, against contracting out for prison services. And 
if FOIA is in place, I think a lot of companies would probably 
remove themselves from that industry, from that market. And in 
doing so, we would lose out on a lot of innovation and a lot of 
flexibility.
    Again, you know, we have a dysfunctional correctional 
system. We have among the world's highest incarceration rates. 
Our recidivism is very, very high. And the problem is, we are 
just managing the system, rather than trying to manage the 
outcomes.
    With a Federal bureaucracy, it is very, very hard to get 
different outcomes. But with contracting, you can build 
different outcomes into the contract. You could make the 
payments contingent on, say, how many prisoners are in GED 
programs, how many prisoners are getting substance treatment. I 
mean, we can create contracts that get the outcomes we need. 
And you cannot do that without that. It is a very, very 
powerful tool that we can use. And, again, it is only the 
imagination of the Federal agencies that don't do this.
    So I think, in looking at any public policy, I mean, this 
fails three critical tests. It is unnecessary, because we can 
get the information we need. It sets a very dangerous 
precedent, because there is no reason to think it wouldn't be 
extended across the board of Federal contractors. And it 
stifles innovation by removing a powerful tool, which is 
contracting to get better outcomes in our correctional system. 
Because, ultimately, we need to have a better correctional 
system, not just a place where we warehouse inmates.
    Thank you. I would be happy to take any questions.
    [The prepared statement of Mr. Flynn follows:]

                  Prepared Statement of Michael Flynn

















    Mr. Scott. Thank you.
    Mr. Friedmann?
    We want to recognize the gentleman from Ohio has joined us, 
Mr. Chabot.
    Mr. Friedmann?

         TESTIMONY OF ALEX FRIEDMANN, VICE PRESIDENT, 
                 PRIVATE CORRECTIONS INSTITUTE

    Mr. Friedmann. Thank you, Chairman Scott, Ranking Member 
Gohmert, Members of the Subcommittee.
    With respect to Mr. Flynn, regarding public access to 
information related to privately operated prisons that house 
Federal prisoners, he has painted somewhat of a rosy picture. 
Unfortunately, that picture is more a work of abstract art. I 
prefer the school of realism, and the testimony I am going to 
give relates more to how the real world works.
    In December 2005, Prison Legal News, the publication that I 
worked for, filed suit against the GEO Group, the nation's 
second-largest private prison company, under Florida's public 
records law. Florida has a unique public records law in that it 
expressly applies to private companies that contract with the 
State. Regardless, GEO Group failed to respond to our records 
request, which led to our litigation. GEO is in the process of 
producing our requested records, but only after we filed suit 
and only after the Court granted multiple motions to compel.
    I am going to discuss some examples related not only to 
FOIA but also to State public records laws. And the reason for 
that is that most public contracts with private companies 
relate to State and county prisoners, not Federal. FOIA, on the 
Federal level corresponds to the State public records laws on 
the State level. And these companies' failure to respond on the 
State level is comparable to their failures on the Federal 
level.
    On April 3, 2007, on behalf of Prison Legal News, I 
submitted a records request to CCA under Tennessee's public 
records law. Tennessee Supreme Court had specifically ruled 
earlier that private companies that perform functionally 
equivalent government services were subject to the State's 
public records law. Regardless, CCA refused to answer our 
records request. A copy of CCA's refusal is attached to my 
written statement as Exhibit 1.
    As a result, last month, I filed suit, personally, against 
CCA to ensure that the company complies with Tennessee's public 
records law, as interpreted by our Supreme Court in that State. 
That case is presently pending.
    In 2007, the Private Corrections Institute, of which I 
serve as vice president, submitted a public records request to 
CCA under Florida's public records law. We were seeking a copy 
of the after-action report related to a September 2004 hostage-
taking and shooting at the company's Bay County jail. CCA 
refused to produce a copy of the report, claiming attorney-
client privilege. A copy of CCA's refusal letter is attached to 
my statement as Exhibit 2.
    At that time, CCA's general counsel, Mr. Gustavus Puryear, 
was cited in a News Herald article as stating that report would 
never become a public record.
    This past April, I sent public records requests to a number 
of government agencies that contract with CCA, requesting 
records related to the private prisons and jails that they 
contracted with. Of the 16 agencies that responded, only nine 
could provide the information I requested, which included the 
number of inmate-on-inmate assaults, inmate-on-staff assaults, 
and use-of-force incidents. Four jurisdictions stated they had 
no such records whatsoever.
    This is one example of how contracting government agencies 
simply do not have all the data provided from private prison 
contractors that would be available from comparable publicly 
run facilities, because the private prison companies do not 
supply those records to the agencies they contract with. If the 
contracting government agencies do not get data from private 
prison companies, they cannot then turn that data over to the 
public through FOIA or public records requests.
    Regarding FOIA, on May 8, 2008, Paul Wright, the editor of 
the publication that I work for, submitted a FOIA request to 
CCA's corporate office. That request is attached as Exhibit 3 
to my written statement.
    Our FOIA request encompassed data concerning CCA-operated 
facilities that house Federal prisoners. We asked for records 
related to inmate-on-inmate assaults and use-of-force reports, 
as well as other FOIA requests that CCA had received. All of 
this information would be available from federally operated 
prisons through FOIA.
    To date, CCA has not responded to our FOIA request. Mr. 
Wright has left five messages; they will not call us back. FOIA 
allows 20 days to respond, which has long since passed. CCA has 
completely ignored our FOIA request.
    The reality is that CCA and other private prison companies 
simply do not provide the public with records or information 
concerning their privately operated prisons. Their internal 
records are labeled proprietary and copyrighted or attorney-
client privileged. Prisoners who are held in private prisons 
have greater access to internal documents than members of the 
public.
    My written statement includes a description of how I tried 
to obtain a copy of the CCA policy concerning the company's 
mail policy in an Arizona prison. My request was denied. CCA 
stated that policy was proprietary and they could not provide 
it.
    I would like to give a visual example of the difference 
between publicly operated prisons and private. Earlier, I 
mentioned a 2004 shooting and hostage situation. This is the 
public report regarding that incident from Bay County 
officials. This is the CCA report. And if you can't see it, it 
is because it is not here, because CCA refused to produce it, 
either to ourselves, Private Corrections Institute, the county, 
or the newspapers who requested it. That is the difference--
public; private.
    Thank you.
    [The prepared statement of Mr. Friedmann follows:]

                  Prepared Statement of Alex Friedmann



























                               EXHIBIT 1









                               EXHIBIT 2





                               EXHIBIT 3





                               EXHIBIT 4





                               EXHIBIT 5




                               EXHIBIT 6




                               EXHIBIT 7




                               EXHIBIT 8









    Mr. Scott. Thank you.
    Mr. Jawetz?

TESTIMONY OF TOM JAWETZ, IMMIGRATION DETENTION STAFF ATTORNEY, 
   THE AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT

    Mr. Jawetz. Good afternoon. I would like to thank Chairman 
Scott and Members of the Subcommittee for inviting me to speak 
about the critical need for oversight and accountability over 
the private prison industry and the importance of the Private 
Prison Information Act.
    There are many different ways to measure the value of this 
bill. By increasing the public's access to information in the 
hands of for-profit prison companies, Congress would empower 
the public to monitor unacceptable risks to public safety and 
police fraud and abuse of government funds. The bill also would 
help to shine a light into the darkest recesses of our society, 
because, while our Nation's prisons too often lack the 
necessary transparency, private prisons are open to even less 
scrutiny.
    My work puts me at the center of two important trends in 
incarceration: the incredible growth in the detention of people 
facing administrative immigration charges, and the Federal 
Government's increasing reliance on private prison companies to 
house those immigrants.
    Since 2001, the number of people held in administrative 
immigration detention has tripled. Meanwhile, private prison 
companies have received lucrative contracts to house tens of 
thousands of immigrants in these facilities. For instance, the 
Corrections Corporation of America, or CCA, recorded nearly 
$1.5 billion in revenue last year, 13 percent of which came 
from contracts with ICE.
    At the ACLU, we routinely hear about problems faced by 
immigration detainees, and we sift through these complaints to 
identify particularly egregious facilities. It is therefore 
striking that all three immigration detention lawsuits filed by 
my office over the last 18 months have involved CCA facilities.
    Immigration detainees are held throughout the United 
States, but the privatization boom appears to be focused 
heavily on our southern border. Last month, I visited two 
privately run facilities in south Texas.
    The Willacy County Detention Center, also known as 
``Ritmo,'' is run by Management and Training Corporation, a 
Utah-based company whose former director was tapped to set up 
the now-infamous Abu Ghraib prison in Iraq. Willacy houses over 
3,000 immigration detainees, 2,000 of whom live in tents. Until 
recently, the tents had no windows, and detainees were 
completely deprived of natural light.
    Walking through the compound during my tour, it was clear 
to see that tears and rips in the walls of the tents had been 
repaired with tape. So I was not surprised when I learned later 
that detainees routinely complain of water seeping into their 
living quarters when it rains. Yet records pertaining to how 
MTC maintains or repairs the tents are unavailable to the 
public.
    Last year, a local news station obtained reports showing 
that dozen of detainees had complained they were being fed 
rotten food crawling with maggots. Copies of MTC's logbooks 
recording those complaints were obtained directly from security 
guards who went to the media. Had the guards not come forward, 
those records might never have surfaced under our current FOIA 
law.
    The South Texas Detention Complex is run by GEO Group. I 
also visited that one. It houses just over 1,900 detainees. 
Last month, actually just a day before my visit, a local news 
station uncovered evidence that GEO guards were sexually 
assaulting female detainees. GEO guards reportedly pressured 
the women by threatening to have them deported. At least one 
GEO guard and one ICE officer reported that they were fired 
after they complained internally about the assaults.
    Now, while most ICE records pertaining to sexual abuse at 
the facility would be available under the FOIA Act, any records 
possessed by GEO Group, which told a reporter that it had no 
knowledge of sexual assault complaints, may never be released 
publicly.
    The issue that has gained the most public attention when it 
comes to immigration detention is poor medical care and 
avoidable deaths. Back in June 2007, the New York Times 
revealed that over 60 people had died in immigration custody 
since 2004. I think this is a relevant point for Representative 
Gohmert.
    The day after that story broke, the ACLU filed a FOIA 
request seeking records pertaining to detainee deaths, 
including any reports of investigations into such deaths. In 
January of 2008, ICE produced approximately 800 pages of 
documents, which included a list containing the names and 
locations of last detention for 66 deceased detainees. 
According to that list, 19 of those 66 detainees, their 
location of last detention was a facility run by a private 
prison company. And yet, only a single piece of paper produced 
to the ACLU by ICE appears to have been generated by one of the 
for-profit companies running these facilities. We got nothing 
from CCA. We got nothing from Corrections Corporation. We got 
one piece of paper from GEO.
    It is inconceivable that not one of these 19 in-custody 
deaths resulted in an investigative report. So the question 
becomes whether ICE failed to produce records in its possession 
or whether private prison companies, as we know, routinely 
failed to turn over records to ICE.
    Yesterday, the ACLU filed a lawsuit in Federal court 
against ICE to answer the first half of that question. But the 
second half of the question that goes to the heart of the 
Private Prison Information Act is that, without the ability to 
demand such records directly from private prison companies, how 
can the public ever be confident that it is receiving all of 
the information to which it is entitled?
    In my written testimony, I detail one change to the bill 
that I believe is entirely consistent with the drafters' 
intent. Namely, the bill speaks exclusively to Federal, quote/
unquote, ``prisoners,'' but the more than 300,000 people 
detained in ICE custody each year pursuant to contracts with 
ICE are detainees, not prisoners. And that is throughout the 
U.S. Code. Unless the bill is amended, there is a risk that 
private facilities housing Federal immigration detainees 
pursuant to a contract with ICE will not be included and will 
not be required to comply with the bill.
    On behalf of the ACLU, I would like to thank the 
Subcommittee and the Ranking Member. And I am happy to answer 
any questions.
    [The prepared statement of Mr. Jawetz follows:]

                    Prepared Statement of Tom Jawetz











    Mr. Scott. Thank you.
    We will now ask you to respond to questions under the 5-
minute rule.
    And I recognize myself for 5 minutes.
    One of the things that we are trying to do is have some 
consistency. Either we are going to do the same for prisons 
that we do for all other contracts, or we will do the same for 
private prisons that we do for public prisons. I mean, either 
way, I guess we could be showing some consistency. And so let's 
try to determine which makes more sense.
    The difference with prisons is that, with incarceration, we 
delegate to the private prisons authority that most contractors 
don't have: the right to shoot prisoners, when and when not to 
use fatal force, how to feed people. People who are sent to 
these facilities have no choice. Other contracts, you can deal 
with them or not deal with them as you please.
    So, Mr. Flynn, why shouldn't we be able to get information 
on prisons that are private that we can get from prisons that 
are public?
    Mr. Flynn. Because we can get that information. That 
information, we can get it. As I said, there is no reason that 
the Bureau of Prisons cannot make disclosure of some of these 
items a contingent part of the contract. You don't need to 
extend the FOIA process into an entirely new area to get at 
this information.
    I mean, we have heard a number of anecdotes about problems 
in certain prisons. We know about those problems, I mean, and 
these things do come up, and we do get information about them. 
The great thing about, with the contract, is that if there are 
problems in the facility you can terminate that contract.
    You know, we make it sound like only private prisons have 
problems within the correctional system----
    Mr. Scott. Well, let me ask Mr. Friedmann.
    Most of your examples were with state prisons. Is that 
right?
    Mr. Friedmann. Correct, yes.
    Mr. Scott. State prisons would not be affected by this 
legislation unless they also house Federal prisoners.
    Mr. Friedmann. That is correct. CCA and GEO Group, the 
private prison industry primarily houses State and county 
prisoners. CCA, for example, houses around 11,000 or 12,000 out 
of their total 70,000 to 75,000 prisoners. But our experience 
with these State public records laws and State prisoners is 
very representative of how we can expect CCA to behave with 
FOIA.
    Mr. Scott. Well, why can't you submit your freedom-of-
information requests to the Bureau of Prisons and let them get 
the information, rather than going to the private contractor?
    Mr. Friedmann. We have tried that with other government 
agencies, State and county, and that has failed.
    We currently have a request into ICE to see if they can 
produce information from their private prison contractors that 
we specifically asked for and that we know that the private 
contractors already have. To date, ICE has not been able to 
produce that information. I am still waiting to get their final 
result, or I would have brought that with me.
    Mr. Scott. Why would you be more likely to get the 
information from the private prison than through the Bureau of 
Prisons getting it from the private prisons? If they don't have 
it through the Bureau of Prisons, why would they have that 
information available to you?
    Mr. Friedmann. The Bureau of Prisons, ICE and other Federal 
agencies only have records that they get from their private 
contractors. If the private contractors do not give them those 
records, they do not have them, and I can't request them. We do 
know that private prison companies have these records----
    Mr. Scott. Wait a minute. You can only request records that 
are on file at the Bureau of Prisons?
    Mr. Friedmann. Or that they can obtain.
    Mr. Scott. Or that they can obtain. Okay, that is the part 
of the question we are trying to get at. If they can obtain 
them, why isn't that just as efficient a process as anybody, 
everywhere, off the street, sending in these requests to the 
prisons?
    Mr. Friedmann. Well, partly because that information is not 
available. Mr. Jawetz testified he has produced a number of 
records for ICE, and they produced the records but only one 
page from a private prison contractor, which is very 
unrealistic, that they only have one page.
    Mr. Scott. Can a freedom-of-information request require the 
Bureau of Prisons to obtain whatever information they may have, 
even if it is not on file at the Bureau of Prisons?
    Mr. Friedmann. I take it that would be interpreted by the 
BOP or ICE as to whether they can do that through their 
contract, depending on how their contract is written.
    But when those contracts are written, they are not written 
with FOIA in mind. BOP, ICE and other Federal agencies that 
house prisoners and detain them, their responsibility, first 
and foremost, is to detain those prisoners, whether in public 
or private prisons. They are not as much worried about FOIA. So 
when they draft their contracts, they are more concerned about 
security and operational-related issues.
    Mr. Scott. And how would this bill change that?
    Mr. Friedmann. This bill would require private prison 
companies to comply with FOIA to the same extent as Federal 
agencies already do.
    Mr. Scott. Mr. Gohmert?
    Mr. Gohmert. Thank you, Chairman.
    I do appreciate everybody being here.
    It never ceases that, whether it is a courtroom hearing or 
a legislative hearing, that credibility is always an issue.
    Mr. Jawetz, you know, you made the statement in here that, 
most importantly, for purposes of your testimony, you said the 
bill also, quote, ``would, for the first time, shine a light 
into the darkest recesses of our society,'' unquote.
    Are you talking about the private prisons being the darkest 
recesses of our society?
    Mr. Jawetz. Yes, that they are among the most dark 
recesses.
    And I think the point that I would like to make--and this 
does respond to Mr. Flynn's point. I don't think, in general, 
it is our experience at the National Prison Project that we 
want to suggest that publicly run facilities smell like roses. 
I mean, a number of the cases that we file----
    Mr. Gohmert. Okay. Well, that is not my question. My 
question is regarding your statement.
    We have had testimony regarding gangs, MS-13. We have had 
organized crime testimony. There are just all kinds of issues. 
And so it may not affect anybody else, but when you come in 
before this Committee and say that the private prisons, your 
words are, are the darkest recesses of our society, then it 
causes me credibility problems for you.
    Why would you come in and say that?
    You are trying to get information directly from these 
private prison entities. And frankly, Mr. Jawetz, I have had 
concerns since my days as an attorney and as a judge and chief 
justice about the use of private prisons, and this jury is 
still out on their propriety. I was thinking this was something 
that perhaps would be better addressed by oversight hearings 
from the Federal standpoint, from our standpoint, be open to 
those kind of things.
    But, boy, what is being pushed here in this bill is going 
to create an additional burden for those private entities that 
is going to open the door, as I see it, to the same FOIA 
requests being laid on private entities, as I said in my 
opening statement, that could include, you know, who carries 
out the trash. But----
    Mr. Jawetz. Can I respond to your question, Representative 
Gohmert?
    Mr. Gohmert. Well, my only question I have asked so far is 
about your belief that the private prisons are the darkest 
recesses of our society. So if you have further comment on that 
question, yes.
    Mr. Jawetz. Sure. I think the purpose of my statement was 
to note that the public's ability to access information in the 
possession of private prison companies is incredibly limited. 
But, even more specifically, I can't walk up to a private 
prison on any given day and say that I want to walk around, 
look through their facilities, take a look through their 
records and try and get a sense of what it is that they are 
doing behind closed doors.
    Mr. Gohmert. Have you talked to your Member of Congress 
about going with him or her through a tour of a prison 
facility? I have taken grand juries on tours of both public and 
private facilities as a judge.
    Yes, I wouldn't want public or private facilities to have 
Tom Jawetz or Louie Gohmert just come walking up out of the 
blue and say, ``I want in to look around, and let me in.'' I 
think that would be a huge mistake. That would be 
counterintuitive to their mission. And I am surprised, once 
again, that you would expect that.
    But, again, credibility is important to me. And when you 
come in and use ``darkest,'' the superlative, not ``darker'' or 
``dark,'' but just ``darkest,'' then it sounds to me like you 
are prone to exaggeration, which affects your credibility.
    How many private prisons have you been in?
    Mr. Jawetz. I have been in three, at this point.
    Mr. Gohmert. And how did they come to let you in?
    Mr. Jawetz. The ACLU is a credible organization, and it is 
also an organization that is a credible threat. That really 
goes to the point of this litigation.
    Mr. Gohmert. So the ACLU has made requests to go on tours, 
and they were allowed?
    Mr. Jawetz. In some cases, we have made requests to go on 
tours and they have been allowed. We have gone into 
facilities--I mean, I don't know what sorts of tours you have 
had. Perhaps you have had all-access passes. But I can say that 
the experience of walking through a facility in a 2-hour period 
of time is quite different from the experience of living in 
that facility. And I can also say that the experience of 
walking through that facility blind, as compared to the ability 
to look at records from the facility, review serious injuries 
reports, or do things like that, is quite different.
    Mr. Gohmert. Well, there is a way to have an opportunity to 
live in a facility.
    My time is running out, but I was going to ask----
    Mr. Scott. The gentleman's time has expired. We will have a 
second round of questions.
    Mr. Gohmert. All right. Thank you.
    Mr. Scott. Let me just ask a couple of quick questions.
    I guess, Mr. Flynn, does present law allow FOIA requests to 
any private contractors now?
    Mr. Flynn. Not Federal law. There has been litigation at 
times, and you could find decisions to go both ways on this. In 
some very, very narrow specific situations, the courts have 
allowed a FOIA process to a private contractor. But that is in 
a specific situation. It is not a blanket thing like this would 
be in statute.
    Mr. Scott. Do you agree with that, Mr. Friedmann?
    Mr. Friedmann. My research has been narrowly on private 
prison contracts with State and Federal Government. And I have 
found no cases where, in the Federal level, they provided 
access to private prison contract records.
    Mr. Scott. Well, there are a lot of private contractors out 
there doing government functions. Is there any precedent for 
requiring a private contractor to respond to a FOIA request?
    Mr. Friedmann. I can speak only to the private prison 
contracts; I am sorry.
    Mr. Scott. We are not aware of any.
    Mr. Jawetz?
    Mr. Jawetz. I am not aware of any.
    But I can certainly say that I think the job that we are 
asking private prison companies to do is really not comparable 
in any way to the job that we are asking private trash 
collectors to do. And the kind of authority that we are giving 
to private prison companies over depriving someone of liberty, 
of holding disciplinary hearings, of using force, is really 
quite different from the experience that most other private 
contractors have.
    Mr. Scott. Including deadly force. That was the point I 
made in my opening statement.
    Mr. Flynn, what additional cost would there be to a private 
contractor if they had to respond to FOIA requests directly, 
rather than FOIA requests to the Bureau of Prisons? If someone 
were to send the request to the Bureau of Prisons, wouldn't it 
not be the same cost?
    Mr. Flynn. No, because the Bureau of Prisons absorbs that 
cost as part of their compliance with FOIA. The private 
company----
    Mr. Scott. If the information is at the private prison, and 
that is where you are going to get the information, why would 
it be any more difficult to get that information from the 
private prison if you send the initial request to the Bureau of 
Prisons?
    Mr. Flynn. Because I think you can expect a--because there 
are--you could expect an avalanche of FOIA requests that go 
beyond just that particular information. And I think, you know, 
given the stridency that this issue raises and the emotions 
behind this issue, I think it would be used by several 
organizations as a tool against private prison companies, and 
they would be deluged with FOIA requests.
    Mr. Scott. Mr. Friedmann, if we allowed the requests to go 
directly to FOIA, and then if there would be additional costs, 
who would absorb the additional costs?
    Mr. Friedmann. Most likely the private contractors. It 
would therefore reduce the costs that are currently being paid 
by the Federal agencies that have to handle those requests. Of 
course, contractors are responsible for handling whatever costs 
are associated with their contracts. So that would possibly 
result in a reduction of costs at the Federal agency level and 
an absorption of cost by the private prison contractors.
    Mr. Scott. So the private contractor would have to absorb 
the additional cost in responding to FOIA requests?
    Mr. Friedmann. That is correct. To the extent they say they 
already do that, however, and if that is an accurate statement 
from the industry, presumably it would result in no additional 
cost, if they say they already do it.
    Mr. Scott. Okay.
    The gentleman from Texas.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I have received a copy of a letter here from Keith 
Nelson, Principal Deputy Assistant Attorney General. It looks 
like you have the same copy. It is addressed to Howard Coble, 
an outstanding Member on our Subcommittee. But I would ask that 
this letter of the Justice Department's reaction, at least 
their Office of Legislative Affairs, about the bill be made a 
part of the record.
    Mr. Scott. Without objection.
    [The information referred to follows:]

    
    
    
    
    Mr. Gohmert. Thank you.
    And then I haven't had a chance to read the whole letter, 
but, anyway, it sounds like they have some questions regarding, 
if this were to become law, things that would need to be 
rectified within it.
    But I want to go back to the issue of these dark recesses 
in our society. And, Mr. Friedmann, you had mentioned that you 
have made numerous requests for information from private 
prisons, and your organization, you mentioned, had made 
numerous requests. Did I understand those to be State private 
facilities?
    Mr. Friedmann. The majority of them, yes. We have put in a 
FOIA request both to ICE and to CCA seeking records related to 
private prison companies that contract with the Federal 
Government. Most of the examples I cited were with State or 
county government agencies.
    Mr. Gohmert. All right. And before making those directly of 
the private entities, did you make the same requests regarding 
those facilities through the appropriate or the governing body 
controlling those facilities?
    Mr. Friedmann. No, partly because some of the information 
would have only been available from the private prison company. 
And it was our understanding that they stated that they 
complied already with FOIA. In fact, we called the company, and 
I spoke with their----
    Mr. Gohmert. Wait, wait, wait, I want to get this. You made 
requests, and they say they had already complied with FOIA, 
which seems to indicate that there were prior requests made. So 
had you made prior requests and then subsequent requests of the 
same facility?
    Mr. Friedmann. Allow me to clarify. We have submitted one 
FOIA request directly to Corrections Corporation of America and 
an additional separate FOIA request to ICE.
    It was my understanding that the private prison industry 
has stated or claimed that it already complies with FOIA 
requests, which is why we submitted a request directly to the 
company's corporate office. After speaking with CCA's general 
counsel's office, they stated that we could submit that request 
to one of their assistant general counsels, which is what we 
did.
    Mr. Gohmert. With regard to all these other requests that 
were made from State and local entities, did you go through the 
governing body controlling those facilities first, or did you 
make them directly to the private facilities?
    Mr. Friedmann. All of the other requests that I cited were 
made to the contracting government agency or to CCA. It depends 
on the request. I am sorry to----
    Mr. Gohmert. So the contract or government facility, the 
one that made the contract with the private facility; is that 
correct?
    Mr. Friedmann. Correct, or the contractor themselves.
    Mr. Gohmert. And were you turned down in making that 
request of the government entity?
    Mr. Friedmann. The government entity we have been--I have 
been turned down by four agencies which indicated they could 
not provide the records because they did not have them.
    Mr. Gohmert. That they were in part of the private 
facility.
    Mr. Friedmann. Correct. They did not have the information I 
had requested.
    Mr. Gohmert. What caused you to select those facilities you 
did? I believe at one point didn't you mention, like, six 
facilities that you had made requests of?
    Mr. Friedmann. Right. Actually, we submitted a request to 
all of CCA's contracting government agencies, which number 
around 30. We received responses from around 16 of those 
agencies. And of those agencies, four had absolutely no records 
that they could provide. Six had some records.
    Mr. Gohmert. Well, my time is running out. What caused you 
to go after CCA particularly?
    Mr. Friedmann. Mainly because there was a news report in 
Time magazine which indicated--this was published in March of 
this year--that the company had a policy or practice of not 
disclosing information to government agencies.
    Mr. Gohmert. Well, Mr. Jawetz said he has been in three 
private prison facilities. Have you been in any private prison 
facilities yourself?
    Mr. Friedmann. Just one, which is the South Central 
Correctional Facility in Clifton, Tennessee.
    Mr. Gohmert. Okay. Was that a request made at the site that 
you go on a tour of the facility, or how was that occasion?
    Mr. Friedmann. Not exactly. Actually, I spent 6 years at 
that facility while I was incarcerated, from 1992 to 1998.
    Mr. Gohmert. Was that a CCA facility, or who owned it?
    Mr. Friedmann. It was. CCA operated under contract with the 
Tennessee Department of Correction.
    Mr. Gohmert. That seems to shed a little more light on 
motivation, anyway. Nonetheless, if there are issues that need 
to be resolved, I am for resolving them.
    Thank you, Mr. Chairman.
    Mr. Scott. Just another question. Mr. Friedmann, are their 
privacy concerns that may be generated with direct FOIA 
requests to private agencies?
    Mr. Friedmann. Absolutely. But those privacy concerns are 
addressed to the same extent that privacy concerns are 
addressed to Federal agencies. In other words, FOIA already 
encompasses exceptions and exclusions for information that 
would infringe on privacy, security and so forth, things that 
cannot be disclosed, things such as security operations at 
prisons, you know, the layout of how their locks work and so 
forth. Those things aren't subject to disclosure under FOIA 
already to Federal agencies.
    So by extending FOIA to private prison companies, you would 
also extend the exceptions and the exclusions that FOIA already 
has. That would not create additional or new privacy concerns. 
Those are already addressed.
    Mr. Scott. And you have indicated that you have made a FOIA 
request and could not get information. Can you be specific as 
to the information you have requested that you couldn't get?
    Mr. Friedmann. Certainly. The FOIA request that we 
submitted to CCA, based on their statement that we should 
submit it to their general counsel's office, requested specific 
information. We examined the number of FOIA requests that CCA 
itself has received over the past 2\1/2\ years. We requested 
the last 20 FOIA requests that CCA has received and their 
responses to those requests. We have requested specific 
statistical information regarding CCA prisons that house 
Federal prisoners, and that included inmate-on-inmate assaults, 
inmate-on-staff assaults, use-of-force reports, disciplinary 
reports and other related statistics.
    All of that information, had we submitted that request to 
any public facility, would be subject to FOIA. Our FOIA request 
to CCA has not yet been responded to.
    Mr. Scott. Mr. Flynn, why shouldn't that information be 
available if it's a private prison as it is with a public 
prison?
    Mr. Flynn. Well, what Mr. Friedmann just explained is a 
fishing expedition.
    Mr. Scott. Let's ignore the request for FOIA requests and 
get to the information about the assaults and that information.
    Mr. Flynn. I think that should be available, that should be 
available information. And that is up to the bureau who is 
making the contract to say that information must be disclosed.
    But, again, this bill which Mr. Friedmann just discussed, 
and I do think it is important, is to have this avalanche of 
FOIA requests on a private company that is unrelated to any 
specific incident or any specific problem is what you want to 
avoid.
    Mr. Scott. Any other questions?
    Mr. Gohmert. Just briefly.
    Mr. Scott. Gentleman from Texas.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Mr. Flynn, I hadn't had a chance, I hadn't made the chance 
to ask you questions, and I did have some of you. You know, I 
agree with your approach in general; basically, liking the idea 
that less government is usually better than more government.
    But you had made the comment that we should be managing 
outcomes instead of process. And I agree with your concerns 
about the potentially unnecessary dangerous precedent. As I 
have already indicated, I am leaning against this type of 
legislation. But as I also indicated, I have my own concerns 
about contracting out certain governmental functions. So I am 
struggling somewhat with your idea of managing outcomes only, 
without regard to process.
    You surely wouldn't want prisons that used significantly 
mind-altering drugs or beating a guy about the head or letting 
other inmates beat him until they are beat into submission and 
they come out this docile, mindless human being or remnant of a 
human being. I mean, I am sure you agree with that, right?
    Mr. Flynn. Absolutely, yes.
    Mr. Gohmert. So it is more than just managing outcomes. I 
mean, we would be concerned about the process, wouldn't you 
agree?
    Mr. Flynn. Absolutely. And what I mean by managing outcomes 
is, you know, right now, we have a correctional system that is 
very dysfunctional. And we have very, very high recidivism 
rates. You know, we put oftentimes nonviolent criminals in jail 
for a long time, and they get basically on-the-job training for 
criminal behavior. In our current system, we just house them. 
We should be moving in some direction toward rehabilitating 
them, making sure they get an education or job skills, so that 
when they leave the prison system they have an alternative that 
just doesn't put them back in there.
    Through contracting, by the use of private prisons, you can 
move in that direction, because you can make the contract 
contingent on these things. With the Federal bureaucracy and 
Federal employees, who cannot be fired essentially, you can 
never start to get those outcomes within the institution. You 
know, if there is a riot at a public facility, maybe somebody 
gets fired. If there is a riot at a private facility, you can 
pull the contract.
    That is a tool that we should use and we should--you know, 
it is the competition that makes them run better. And if you 
incentivize and say ``Okay, yeah, we are going to pay you X 
amount; and if you get X percent in substance treatment of your 
inmates, we will pay extra.'' And so that is what I mean by 
managing outcomes; not that you do it at the expense of the 
process. But right now we just pour money into the system and 
don't even look at what comes out on the other end.
    Mr. Gohmert. All right. Thank you.
    Mr. Scott. Thank you.
    And that is certainly an indictment of the prison system, 
that we can't use common sense and good practices, whereas we 
can contract to get those services; that maybe we ought to be 
looking at the public prisons to see if we can't get some 
better output.
    Mr. Gohmert. Is that our next hearing?
    Mr. Scott. If you insist.
    Any other questions?
    Mr. Coble?
    Mr. Coble. Thank you, Mr. Chairman. I will be brief. I had 
two other meetings that I had to go to, and I am sorry I missed 
most of the testimony.
    Mr. Flynn, would imposing FOIA obligations on private 
companies that have government contracts, could that lead to 
higher costs for the government?
    Mr. Flynn. Oh, absolutely.
    Mr. Coble. Proponents of the legislation have argued that 
private facilities operate under a shroud of secrecy and, thus, 
should be subject to FOIA.
    Reason Foundation, your group, has conducted significant 
research into the operation of private correctional facilities. 
How did Reason come into access of this information?
    Mr. Flynn. Through public sources.
    Mr. Coble. Pardon?
    Mr. Flynn. Through FOIA requests and other means.
    Mr. Coble. Do you want to elaborate on that a little bit?
    Mr. Flynn. Yeah. I didn't do the actual requesting, so I 
don't know what they did. But we looked--and what we also did, 
which I think is even more interesting, is we looked at a bunch 
of studies, I think about 18 or 20 studies, going back to 1989, 
kind of a meta analysis, and found that in about 16 of those 18 
cases, of those studies, the private prisons were at least as 
good as the public prison in terms of quality of service and 
usually better.
    So, I mean, it is too much--I mean, this is a very specific 
bill about the whole private prison industry. But there has 
been a lot of misconception about how the private prison 
industry runs. And they make it sound as if, you know, the 
public prisons are these wonderful daycare centers where 
everything is nice and light and the private prisons are some 
kind of, like, dark gulag. But the data does not show that at 
all.
    Mr. Coble. Thank you, sir.
    Mr. Friedmann, the Freedom of Information Act was enacted 
to provide greater transparency into the operation of our 
Federal Government. I am not aware of any precedent whereby the 
statute has been extended beyond the government and to private 
entities. Are there such precedents?
    Mr. Friedmann. To my knowledge, and my research has mostly 
been in the private prison contracting area, no, which is what 
H.R. 1889 would do.
    Mr. Flynn. Just to clarify, there have been very, very 
limited, maybe, like, two or three, instances of private 
contractors being subject to FOIA as a result of litigation. 
But those were very particular and specific. But there is no 
statutory.
    Mr. Coble. Thank you, gentlemen.
    Thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    Gentleman from Texas?
    Thank you.
    I would like to thank all our witnesses for their testimony 
today.
    Members may have additional written questions for our 
witnesses, which we will forward to you and ask that you answer 
as promptly as you can so that your responses may be made part 
of the record.
    Without objection, the hearing record will remain open for 
1 week for the submission of additional materials.
    And, without objection, the Subcommittee now stands 
adjourned. Thank you very much.
    [Whereupon, at 2:01 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman, for convening this hearing on the H.R. 
1889, the ``Private Prison Information Act of 2007.'' The way the 
United States treats its prisoners reflects greatly on the values of 
our nation. I have long been an outspoken advocate for the rights of 
detainees and feel today's hearing is incredibly important. I would 
like to thank our distinguished witnesses, the Alex Friedmann, Vice 
President, The President Corrections Institute, Inc.; Tom Jawetz, 
Immigration Detention Staff Attorney from The American Civil Liberties 
Union National Prison Project; and Mike Flynn, Director of Government 
Affairs, Reason Foundation. I look forward to their testimonies.

        H.R. 1899 ``THE PRIVATE PRISON INFORMATION ACT OF 2007''

    This important piece of legislation, introduced by my distinguished 
colleague, Representative Tim Holden, addresses the release of 
information to the public regarding prisoners, an important step 
forward in the way of transparency. This legislation ``requires prisons 
and other correctional facilities holding federal prisoners under a 
contract with the federal government to make the same information 
available to the public that federal prisons and correctional 
facilities are required to do by law.'' In effect, this ``good 
government'' legislation will require private prison vendors who 
contract with the Federal Government to make the same information 
available to the public as is required of public correctional 
facilities.
    For years, private prison vendors have hid behind their ``corporate 
veil'' to keep damaging information from becoming public. H.R. 1889 
would put an end to this practice once and for all.
    Recently, Time magazine exposed Corrections Corporation of 
America's practice of keeping two sets of internal audit reports: one 
for public release and another, hiding possibly damaging information 
from public scrutiny under the guise of ``attorney-client privilege.''
    Studies have shown private prison guards receive less pay and 
benefits, and experience higher rates of turnover than those in the 
public sector. As a result, employees, inmates, and surrounding 
communities near private correction facilities are exposed to great 
risks. At the very least, private contractors should reveal the same 
information about their hiring, training, and management practices 
which public facilities do.
    While the for-profit private prison contractors, the Department of 
Justice and the Immigration and Customs Enforcement feel that private 
vendors currently supply information to the Federal Government, this is 
not the point. The public has a right to know what is going on inside 
these facilities, regardless of the limited amount of reporting 
required by the federal government.
    As more and more stories are revealed of the horrific treatment of 
prisoners both within the federal prisons and contracted prisons 
emerge, it is imperative that we hold these facilities accountable. 
Concerns about internal problems within private prisons have been 
raised by a myriad of organizations and even Representatives from 
within this Congress. One such organization, the Private Corrections 
Institute, recently voiced its concerns stating, ``there are more 
safety concerns and more escapes in private prisons where guards are 
not well trained, are poorly compensated, and where this is rapid 
turnover of personnel.''
    Mr. Chairman, because we are sending our federal prisoners to these 
private facilities, there must be some sort of mechanism with the 
capability of holding them up to the same federal standards mandated to 
federal prisons and correctional facilities. It is our obligation to 
know under what conditions federal prisoners are living, whether they 
are living in a privately-owned facility or a government-owned 
facility. This bill is an important step toward guaranteeing that 
federal prisoners--whether they are housed in a government-owned 
facility or in a privately-owned facility contracted by the 
government--be treated the same.
    Mr. Chairman, we must address the shortcomings of FOIA when it 
comes to private prisons. Modification is long overdue and I look 
forward to working with the committee to see these issues addressed. 
This bill is about accountability, fairness, public safety, and 
transparency. Thank you, Mr. Chairman. I yield back the balance of my 
time.

                                

















                                







                                





                                





                                 
