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FOI UPDATE 2000: Access for prisoners

By James Snyder

During the 1990s eight states amended their freedom of information statutes to restrict prison inmates' access to public records for reasons of security, privacy, and government efficiency. The states have approached the same issue in different ways, but each labeled inmates as a separate class exempt from rights reserved for practically everyone else.

These new policies change 30 years of statutory and common law doctrine that considered irrelevant the requester's status and the purpose of the FOI request. State courts have generally followed the new statutory policy. The restrictions result in the inability of inmates to research prison policies or incidents, and in some cases may unconstitutionally restrict their access to the courts. Significantly, Congress refused to incorporate similar provisions into the 1986 federal FOIA amendments.

The eight states with new statutes use different methods to limit access to public records. Some amendments have followed high-profile cases of prisoners getting access to information on their victims and in one case a geologic survey of his prison's grounds. In general, the statutes have been amended:

  • To eliminate "frivolous" and burdensome requests.

  • To stop the harassment of victims and innocents through use of public records requests.
  • To maintain security over incarcerated individuals.

Courts in four states have contributed substantially to the scope of the statutes. In no case has the law been interpreted to allow more access to public documents, and none has been struck down as violating state or federal constitutional law.

In 1994, the law was amended to change the definition of a "person" with rights to public information to exclude "an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility." In effect, the amendment eliminates the obligation of any state agency to fulfill a FOI request by any inmate. The Michigan Court of Appeals, however, held in 1998 that the state cannot withhold information directly relating to an inmate's case. Mich. Comp. Laws Ann. § 15.231

A 1995 amendment eliminates FOI request rights of a post-conviction inmate who has exhausted all appeals on his case and empowers the state agency document holder to find out the identity of its requester. Louisiana's Court of Appeals closely examined the statute and determined that because it applied to inmates who have exhausted their appeals, it did not restrict their constitutional right of access to the courts. La. Rev. Stat. Ann. § 44:31 et seq.

The 1994 amendment arguably is the most stringent restriction of FOI access. The law now reads, "a governmental body is not required to accept or comply with a request for information from an individual who is imprisoned or confined in a correctional facility." The section does not restrict a government body from releasing information pertaining to that individual, but does not require disclosure, either. Significantly, however, a 1999 amendment restricted such requests to only the inmate's lawyer — thus likely cutting out a reporter's role in an investigation and limiting requests for case information that may not directly pertain to the inmate. Tex. Govt. Code Ann. § 552.028 et seq.

The Wisconsin amendment of 1995 does not include incarcerated or committed persons in the definition of a "requester" under its statute. It makes an exception for records specifically referring to the requester. The statute also allows court discretion to punish a withholder of information if an inmate brings a successful suit for that information under the statute. Wis. Stat. Ann. § 19.31-.37

Virginia's code was amended in 1995 to eliminate any FOI rights to any incarcerated person, but leaves a loophole for "constitutionally-protected rights." The statute likely applies to people imprisoned for misdemeanors as well as felonies. Va. Code Ann. §2.1-341

New Jersey
Specifically billed as a "victims protection" statute, New Jersey's law, amended in 1998, denies requests by imprisoned and paroled persons seeking information relating to their victim or the victim's family. Public records containing personal identifying information may only be released to an inmate or "representative" if it is necessary to his defense. N.J. Rev. Stat. Ann. § 47:1A-1 et seq.

Pushed along by a Hartford Courant story revealing an inmate's FOI request for a topographical map of his prison area, Connecticut amended its law in 1999 to create a FOI bureaucracy to monitor and enforce exemptions on requests affecting prison security. Conn. Gen. Stat. Ann. § 1-210

The Ohio amendments of 1999 restrict an inmate from requesting documents relating to any criminal proceeding unless he can prove a "justiciable claim," likely referring to his own case. Ohio Rev. Code Ann. § 149.43

James Snyder, a former journalist, is a second-year student in the law school at American University. This article is an abstract of a paper Snyder prepared, "Restricting Prisoner's Freedom of Information: Balancing Inmate Protection Rights and Public Policy Concerns."

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