Posted on Jun 28, 2018 in Formal Opinions

Opinion Ltr. No. F18-03
June 28, 2018
Corrections Corporation of America’s Policies

Requester asked whether the Department of Public Safety (PSD) properly denied, under Part II of the UIPA, an inmate’s request for a copy of all or portions of three polices created by the Corrections Corporation of America (CCA).

OIP concluded PSD has administrative control because PSD has the contractual right to inspect and audit all records, which have not been shown to be proprietary corporate information and have actually been provided, in part, by CCA to PSD.  Thus, PSD “maintains” the requested records, whether or not they are in its physical possession.  Furthermore, PSD must disclose the requested policies as disclosure would not frustrate a legitimate government function by jeopardizing the safety of the Requester, inmates, or CCA staff.

The UIPA recognizes that an agency “maintained” requested records, not in its possession but in the physical possession of its contractor, when the agency had administrative control over records due to its contractual right to obtain them.  The PSD/CCA contract expressly gives PSD the right to inspect “all records,” including “other operational records,” associated with inmates or any charges, billing, demands, and payments.  The contract also requires PSD’s access to continue for a period of time after the contract terminates so that the records may be audited by PSD.  In order to determine whether CCA is properly providing and charging for its services, PSD would necessarily need access to CCA’s Policies, which would be part of “all records” that PSD has the right to inspect.

Although another provision in the PSD/CCA contract denies PSD access to CCA’s proprietary corporate information, there is no evidence that the requested Policies are proprietary corporate information, as they appear to be neither “proprietary” to CCA nor to concern CCA’s corporate organization or finances. Instead, the CCA Policy 10-100, Special Inmate Management (SIM Policy), and Policy 10-101, Special Housing Incentive Program (SHIP Policy) contain operational procedures and specifically state that they are applicable to all staff and inmates.

Consistent with its contractual obligations to provide access to records, CCA had previously provided PSD with portions of the SIM Policy, which were requested in U APPEAL 15-6.  In response to an August 22, 2012 request by the PSD Administrator for the PSD’s Mainland Branch Unit, the Warden at Saguaro emailed a copy of SIM Recipe Policy 10-100K.  Additionally, PSD was in possession of at least two other pages of the SIM Policy as well as CCA Policy No. 14-6, dealing with inmates’ property (Policy No. 14-6), as PSD’s Log records show that PSD withheld them from Requester.

Pursuant to the parties’ practices and the terms of the PSD/CCA Contract, OIP concluded that PSD has the contractual right to obtain from CCA copies of the entire SIM and SHIP CCA Policies, and PSD thus retains administrative control over them and “maintains” them for purposes of the UIPA.  Consequently, the entire SIM and SHIP Policies requested in U APPEAL 15-7, along with CCA Policy No. 14-6 and portions of the SIM Policy that were in PSD’s possession and withheld from Requester as evidenced by PSD’s Log in U APPEAL 15‑6, are “maintained” by PSD and are “government records” that must be provided to Requester unless access is restricted or closed by law.  HRS § 92F-11(a).

In OIP Opinion Letter Number 90-34, OIP concluded that most of the Policies contained in PSD’s “Department of Corrections Policies and Procedures Manual” (Manual) were neither rules nor agency statements interpreting the rules.  As the mandatory disclosure requirement of section 92F-12(a)(1), HRS, was not applicable, OIP then examined whether the frustration exception of section 92F-13(3), HRS, would allow PSD to withhold the policies from disclosure.  While recognizing that federal law is not controlling, OIP looked to federal case law regarding FOIA exemptions for guidance in determining whether any of PSD’s policies and procedures would result in the frustration of a legitimate government function under the UIPA.  To determine if they were “[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function” under section 92F-13(3), HRS, OIP adopted the two-part test fashioned in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (Crooker), which looked to whether such policies are “(1) predominantly internal, and (2) the disclosure of which would significantly risk the circumvention of agency regulations concerning the security of the prisons or the control of inmates.”  The two-part test for policies that are not subject to the mandatory disclosure requirements of section 92F-12(a)(1), HRS, has also been applied in several other OIP opinions.

The Crooker interpretation of FOIA’s Exemption 2 was subsequently rejected by the U.S. Supreme Court in Milner v. Dept. of the Navy, 562 U.S. 562, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (Milner).  In Milner, the Court limited the application of Exemption 2 to only “personnel” matters and held that this FOIA exemption did not protect from disclosure data and maps calculating and visually portraying the magnitude of hypothetical detonations.  The Court recognized that other FOIA exemptions may shield national security information and other sensitive materials.  Although the Crooker interpretation of FOIA Exemption 2 was expressly rejected by the Court and limited in application solely to personnel matters, OIP still considers valid the two-part analysis followed in OIP Opinion Letter Number 90-34 to determine whether the UIPA exempts from disclosure “[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function” under section 92F-13(3), HRS.  OIP Opinion Letter Number 90-34 was not interpreting FOIA or its exemptions, but instead looked to federal law and cases simply for guidance in interpreting Hawaii’s own similar law and its unique exceptions.  Consequently, OIP does not believe it necessary to overrule OIP Opinion Letter Number 90-34 or other cases using the Crooker analysis, and will continue to use its two-part test in this case.

Here, there is no question that the CCA Policies were predominantly internal, as they set forth the procedures for segregation of inmates.  OIP fails to see how their disclosure would significantly risk the circumvention of agency regulations concerning the security of the prisons or the control of inmates.  The SIM and SHIP Policies contain no sensitive information that would jeopardize the lives or safety of any inmates or staff or the security of the prison, and they merely set forth the procedures to be followed when inmates are placed into segregation, including inmates’ due process rights.

OIP had previously examined similar PSD policies and had concluded in that case that disclosure of PSD’s Policy No. COR.11.03, entitled “Protective Custody Management,” would not result in the frustration of a legitimate government function by significantly risking the circumvention of prison security measures.

OIP’s review of PSD’s website showed that a similar policy setting forth PSD’s procedures for “Administrative Segregation and Disciplinary Segregation” was readily available and marked as “Not-Confidential.”  PSD has also recognized in its Policy No. COR.05.03 that “[p]olicies create standards or regulation designed to govern inmate behavior or protect their rights.  Since inmates are to be held accountable for their behavior, they must be made aware of these policies.”  Both PSD’s and CCA’s segregation Policies fall within this description of standards designed to govern inmate behavior or protect their rights, which should be provided to inmates to hold them accountable for their behavior.

The disclosure of the SIM and SHIP Policies, including the portions that were withheld in U APPEAL 15-6, would not significantly risk the circumvention of agency regulations concerning the security of the prisons or the control of inmates, and must be disclosed to Requester.

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