In response to a public records lawsuit filed by the Reason Foundation, the nonprofit that publishes Reason, a federal judge has ruled the U.S. government can hide findings about whether people who died in federal prison received adequate medical care, partly out of fear that those records could be used to criticize prison officials.
U.S. District Court Judge for the District of Columbia Christopher R. Cooper issued an opinion in August that the federal Bureau of Prisons (BOP) was largely not required to disclose redacted information from mortality reviews of in-custody deaths in two federal women's prisons that have been the subject of numerous accusations of medical neglect.
In addition to finding that the mortality reviews were part of the BOP's decision-making process, Cooper wrote that the BOP had successfully demonstrated that releasing the records would result in foreseeable harm to the agency. The judge wrote that a declaration from a BOP official credibly established that the mortality reviews could be used to "criticize" or "ridicule" the agency.
"And, as described above, she notes that the members of the Mortality Review Committee would be 'deter[red] . . . from acknowledging mistakes' if they feared those mistakes would be publicized," Cooper continued.
Reason Foundation, represented by the law office of Deborah Golden, filed a Freedom of Information Act (FOIA) lawsuit last year against the BOP seeking mortality reviews of in-custody deaths at FCI Aliceville, a federal women's prison in Alabama, and FMC Carswell, a federal prison in Texas that is the only medical center for incarcerated women in the BOP system.
Whenever a federal inmate dies, a committee reviews the circumstances and whether BOP policies were violated. The committee then gives recommendations on how care could have been improved. That information could reveal whether the BOP is aware of medical neglect within its walls and how bad the problem is.
Reason reported in 2020 on allegations of fatal medical neglect inside FCI Aliceville. Numerous current and former inmates, as well as their families, said in interviews, desperate letters, and lawsuits that women inside FCI Aliceville faced disastrous delays in health care. They described monthslong waits for doctor appointments and routine procedures, skepticism and retaliation from staff, and terrible pain and fear.
Seeking to learn more, Reason filed a FOIA request in May 2020 for inmate mortality reviews at FCI Aliceville, as well as FMC Carswell.
When the BOP finally released mortality reviews from FMC Carswell three years later, it redacted any information that would indicate if there was substandard care, such as the review committee's findings on the timeliness and appropriateness of care; problems encountered during the medical emergency; whether there was adequate documentation in the patient's medical files; and whether the patient received appropriate care per the BOP's policies.
The BOP withheld that information under exemption b(5) of the FOIA, which protects "predecisional" or deliberative communications between officials. The National Security Archive dubbed it the "withhold it because you want to" exemption.
The BOP did not release redacted mortality reports from FCI Aliceville until Reason initiated FOIA litigation. Those records showed that staff ignored one incarcerated woman's pleas for help for eight months while she steadily lost the ability to walk. Staff advised her to take Motrin for excruciating pain and delayed and denied a CT scan that would have revealed the source of her torment: bone cancer. She died in a prison transport van on the way to a local hospital to see an oncologist.
The court's deference to the BOP's arguments relies on the assumption that the BOP is in fact making a good-faith effort to improve its health care services and not cover up neglect and malpractice.
But in case after case, BOP officials have been caught lying and stonewalling. In 2022, a different federal judge held the BOP in civil contempt and levied sanctions against the agency for allowing an incarcerated man to waste away from untreated cancer, as well as for willfully ignoring and misleading the court. The judge wrote that the BOP's actions were "inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America."
An NPR investigation published this January suggested that the BOP is overcategorizing in-custody deaths as "natural," which allows it to avoid performing autopsies. A February report by the Justice Department Office of Inspector General documented widespread understaffing and a culture of deadly negligence in the BOP system. One of the many issues the inspector general identified was "inadequate staff response to inmate emergencies."
It is troubling to see a government agency make the argument—and even more troubling to see a federal judge endorse it—that BOP bureaucrats would not give honest advice that could potentially save someone's life if it could result in harm to the agency's reputation.
"The BOP's justification is essentially that its employees—sworn law enforcement officers and medical professionals—would not suggest improvements that could save lives if it meant perhaps publicly acknowledging a mistake or system weakness," Reason Foundation argued in a court motion in February.
But for now, the privacy of the ethical failings of the BOP, the reputation of which is already in the gutter, is more important than the public's right to know how people live and die in its fearsome care.
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