The ACLU of Louisiana on Monday filed a public records lawsuit in the 19th Judicial District Court in East Baton Rouge Parish against the Louisiana Department of Public Safety and Corrections (DOC) over their failure to turn over information regarding a now-suspended furlough review panel, which was established in April to review prisoners for possible release in order to reduce the risk of coronavirus spreading throughout the state’s jails and prisons.
The DOC has said they are working on gathering the information, and has told the ACLU it will be available on or before August 21.
“The Department has worked well with the ACLU in the past, and we are fully committed to providing the documents responsive to their request,” said Ken Pastorick, a spokesperson for the department, in an email. “However, we are disappointed that they chose to file a lawsuit in this matter at this point, considering they were told the documents would be available on or before August 21, 2020, and that we are in the midst of responding to the world’s worst pandemic in a century”
But the ACLU, which has been critical of the review panel since its inception, characterizing it as an insufficient response to the threat of coronavirus in jails and prisons, says that the department has been “stonewalling” them since they filed the request on May 6, and called the delay “unreasonable and unjustified.”
The review panel met behind closed doors, claiming they were “administrative reviews” and not subject to open meetings laws.
The ACLU has asked for a range of information about the panel, including the identities of individuals the panel approved for release, the criteria used to determine whether or not someone was approved, the review process available for individuals denied release, and “notes, minutes, agendas and all other memorialization” of the panel’s meetings.
Malcolm Myer, Louisiana Department of Public Safety and Corrections Deputy Secretary, is the named defendant in the suit in “his official capacity as records custodian,” and Chris Kaiser, Advocacy Director for the ACLU of Louisiana who filed the public records request, is the plaintiff.
The complaint alleges that the DOC has violated the state’s Public Records Act by taking too long to respond to their request, failing to notify them in the legally required time-frame that part of their request was exempt from disclosure as a public record, and did not provide sufficient legal justification for the exemption.
Louisiana law requires government agencies to provide any public records requested immediately if not in active use or within three days if in active use. (Strict adherence to those deadlines varies by agency but is relatively rare overall.) If an agency has to review its records to determine whether they contain confidential material, the law requires it to notify the requester of how long such a review will take, provided the timeline is reasonable.
If the custodian determines that a record is not subject to disclosure because it contains sensitive or personal information, the law gives them three days to issue a response denying the request.
According to the ACLU, following Kaiser’s initial request in early May, he was told it would take three to four weeks to receive the documents. Six weeks later, an attorney for the DOC sent him an email providing one document responding to a portion of his request, and informed him that certain other portions of his request were not public records. The rest of the documents, the attorney said, were still being gathered.
Kaiser followed up three weeks later, and the attorney said the remaining documents would be provided on or before August 21.
“Although the law recognizes that reasonable delay may be necessary to compile and review records for production, DOC’s delay in producing responsive records is unreasonable and unjustified,” the complaint reads. “Its response demonstrates an attempt to evade its legal obligations under the PRL [public records law], to stonewall Mr. Kaiser, and to deny his constitutional right of access to public information.”
The ACLU also argues that taking weeks to inform Kaiser that some of his records were exempt from disclosure violated the law, and that the law cited by the DOC to justify the denial did not actually exempt the information that they were seeking.
The DOC claimed that Kaiser’s request to obtain information regarding the review process available for individuals denied furlough was exempt under a state statute that makes some information regarding “offenders and ex-offenders” confidential.
But the ACLU argued that the statute did “not render all the requested documents nonpublic.”
All that combined, the ACLU alleges, “shows a deliberate attempt” by the DOC “to shirk the Department’s obligation under the PRL and cloak the review panel’s operations in secrecy, in defiance of the public’s constitutional right of access to public information.”
The review panel that the ACLU is attempting to get information about was pitched by Governor John Bel Edwards in April as a way to reduce the population of individuals in jails and prisons, where the virus is easily transmitted. According to the New York Times, as of Tuesday afternoon the top 14 known clusters of coronavirus across the country were all in jails and prisons.
The panel was criticized at its outset for its composition of primarily representatives of law enforcement and corrections, as well as the limited scope of inmates it sought to review — about 1,200 prisoners incarcerated on non-violent charges within 6 months of their release dates.
After the panel was suspended in June, when the state moved into Phase II of coronavirus restrictions, The Advocate reported that only 64 out of around 600 prisoners reviewed by the panel were approved for release — reducing the overall prison population by around .2 percent.
“The numbers confirm that this secretive panel was a sham – and now state officials are adding insult to injury by stonewalling our attempts to find out why,” said Alanah Odoms Hebert, Executive Director of ACLU of Louisiana, in a press release.
According to the DOC website on Tuesday, 930 prisoners in state facilities have tested positive for COVID-19, and there have been 18 deaths.
Bruce Hamilton, the attorney with the ACLU of Louisiana who filed the public records suit, said he was not sure what the organization would use the information they requested for, but that they planned to make the documents public.
“The most important thing is that the State can’t hide this work or keep it secret,” he said. “But there is obviously an opportunity for advocacy here, because the panel’s stated aim was reducing the prison population in light of COVID-19, and that objective was a failure. We want to know why, and the documents should answer that question, or help to answer it.”