When Patrick Michels began reporting on immigration two years ago, he set out to find where the government was sending migrant children who had arrived unaccompanied or who had been separated from parents or guardians. The search led him to a database listing the various private companies and nonprofits funded by the Department of Health and Human Services to look after migrant children. “That was the first time that I could sort of grasp the size of the system,” Michels, a reporter with the Center for Investigative Reporting’s Reveal, says. “What I thought was so promising about it was just how little seemed to be known.”
By the time family separation made headlines in the summer of 2018, Michels and his reporting partner Aura Bogado had spent months investigating the conditions facing detained migrant children in contractor-run facilities. The information didn’t come easily. In November 2017, Michels had filed a request with HHS for all currently active contracts for housing unaccompanied minors. After seven months without meaningful HHS response, Reveal sued. HHS began releasing the contracts, which cast light on the processes for releasing children to parents or sponsors and for awarding new grants for shelters. Evaluating prospective shelter operators’ applications, Reveal learned from the contracts, is yet another task that HHS outsources.
Lawsuits, the two reporters found, were a critical tool for prying information from those private entities contracted to handle the nation’s youngest immigrants. In July 2018, after learning that a private defense contractor hired by Immigration and Customs Enforcement to transport migrant children had kept them in a vacant office building overnight, Bogado requested the contract between that outfit and ICE. ICE denied a first request and prematurely closed a second, so Reveal sued. ICE subsequently provided most of the contract. And in April 2019, after Michels and Bogado learned that HHS sends some children in need of inpatient behavioral or psychological treatment to residential treatment centers outside of HHS’s typical provider network, Reveal sued for documents pertaining to the work of those providers. Negotiations between Reveal and HHS are ongoing, but HHS has released some additional requested material.
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The majority of immigrants held by ICE—a number that reached 50,000 this year, a greater total than ever before—are housed in private prisons. Private contractors play a role in supervising those who are released: as of July 2018, according to this AP report, roughly 84,500 released individuals were being monitored through the Intensive Supervision and Appearance Program, which is run by one of the country’s largest private immigrant-detention companies. The government hires private companies for a variety of other enforcement and detention services, from transporting detainees to creating the technology that enables officers to locate and detain immigrants. (Private contracting is not unique to immigration. Throughout the government, private entities are increasingly performing “traditionally government functions,” says Katie Townsend, legal director of the Reporters Committee for Freedom of the Press.)
The growing role of contractors threatens the public’s right to know, as government agencies employing private contractors routinely dodge public-records requests by claiming that contractor-related documents are trade secrets. “It’s a fuzzy area of the law,” Townsend says of whether contractors are subject to public-records laws. According to Townsend, two factors typically determine what’s public: what the relevant law states about what agencies are subject to open-records laws, and who actually holds or controls the records in question. The fact that the work is contracted out doesn’t automatically make the records private, Townsend says, but “it can be complicated”—for instance, in cases where the government would have to search the contractors’ offices to find the relevant records.
A few online tools shed some light on the private contractors working for the US government. The Department of Justice maintains the FOIA Library, an online repository of “proactive disclosures,” and ICE has its own such page. For federal contracts, there’s USAspending.gov, a database of federal spending, and FedBizOpps.gov, a listing of needs for which the federal government is currently seeking contractors.
But such databases have limitations, says Shar Habibi, research and policy director at In the Public Interest, a public policy center. They may rely on the agencies themselves to provide the information, Habibi says, and some agencies provide more information than others.
In the absence of public records, reporters struggle to learn about the conditions detained immigrants face. Getting a first-person glimpse behind any prison walls—public or private—can be tricky; media access is typically limited, and most members of the public can only visit inmates they know personally.
Private detention facilities are inspected annually for compliance with the National Detention Standards to which their contracts bind them. But, in some cases, it’s another private contractor—a consulting company—conducting the inspection. Habibi refers to this practice as “privatization of oversight,” and her organization is firmly against it. “It’s like the fox guarding the henhouse,” Habibi says. Another worrisome practice, she says, is self-monitoring. “We have seen contracts where the contractor is in charge of providing oversight to themselves,” Habibi says, “which just kind of blows your mind.” There’s good reason to question the current monitoring regimes. A January 2019 report from the Office of the Inspector General found that although immigrant detention facilities had violated national standards thousands of times between 2015 and 2018, they had only been fined twice.
Some reporters use court records, which are often easier to access than government documents, to investigate the track record of a detention facility or company. Using this approach, Michels learned that some contractors housing migrant children have been on probation from state child welfare agencies, but, he says, “time passed or they made some corrections, and now they’re in the clear and the federal government is sending kids there too.”
One of the most common ways private-contractor records remain secret is through Exemption 4 to the Freedom of Information Act, which protects trade secrets and confidential business information. Victoria Baranetsky, general counsel at Reveal, says she sees the exemption being invoked now more than ever for things like diversity reports, worker injury records, and agency policies and procedures. These, she says, “are not what Exemption 4 was meant to cover.”
But a June decision from the US Supreme Court appears to pave the way for even broader use of Exemption 4. In 2011, the Argus Leader, the daily newspaper of Sioux Falls, South Dakota, asked the US Department of Agriculture for records of the money it had disbursed to every South Dakota business that had accepted Supplemental Nutrition Assistance Program credits. The USDA refused to provide that information, arguing that it was protected under Exemption 4 as confidential business information.
Circuit courts had previously split in their interpretations of what constituted “confidential” business information. A previous case set precedent that business information was confidential only if releasing it would cause substantial competitive harm. But in Food Marketing Institute v. Argus Leader Media, the Supreme Court ruled that confidentiality did not require a demonstration of harm. Instead—Justice Neil Gorsuch wrote for the majority—the term would apply in all cases “where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.”
Baranetsky worries that this ruling could be “so broad as to swallow the rule” of FOIA, keeping much of contractors’ work permanently hidden from view. She believes lower courts will struggle to interpret the term “confidential”; the broadest interpretation could enable corporations to keep secret anything they choose. She hopes congressional hearings or FOIA amendments will clarify the term to fit the present context. (Townsend argues that agencies are required to prove harm, thanks to the 2016 FOIA Improvement Act, which requires agencies to prove that the discretionary disclosure in question would cause foreseeable competitive harm to contractors.)
If a government agency ignores or improperly denies a record request, Habibi says, one option is to sue. But smaller media outlets and advocacy groups often don’t have the budget to hire an attorney and pay a $400 filing fee for each suit. “We will send letters saying, ‘If you don’t give this to us then we’ll have to consider filing a lawsuit,’ but there’s a huge barrier [between] threatening to file a lawsuit and then actually filing,” Habibi says.
Despite their costs, FOIA lawsuits are on the rise, according to data from the FOIA Project from Syracuse University’s Transactional Records Access Clearinghouse. There were 860 FOIA lawsuits filed in 2018—a 30 percent increase over the previous year, and more than double the 2013 figure. Townsend says she is not aware of any comprehensive data on case outcomes, but she notes that when an agency ignores a request, a suit can trigger a response. In such instances, plaintiffs often achieve their goal before any ruling is handed down.
Of course, when a plaintiff wins a suit, it’s not just the plaintiff who benefits. In 2015, the National Immigrant Justice Center, an immigrant-rights nonprofit, won a three-year lawsuit that resulted in “the most comprehensive public release to date” of immigration detention center contracts and inspections, which is now available to the public—and to journalists—on the center’s website.
Documents obtained through one successful suit can also fuel new requests. One of the most valuable things Michels obtained through FOIA requests was a list of the types of reports facilities must give the government, such as annual grant reports or required documentation following a child’s in-custody death. That list enabled Michels to request those reports by name. “Now we know what other records are out there that could shine a light into what’s going on in these private places,” Michels says. If the government then says that it doesn’t have one of these records, “that will be useful on its own” as evidence of a violation of contract.
When reporters can’t sue, they can negotiate, says Jessie Gómez of MuckRock, a collaborative news site that helps people access public information. Requests may be denied for legally valid reasons; still, narrowing the scope of the request or asking that the refusing agency provide a redacted document can mean getting something instead of nothing. And reporters shouldn’t forget the power of reporting itself, Townsend says. In some cases, simply reporting on the agency’s unhelpful or obstructionist response can be enough to spur disclosure.
The growing use of private contractors has prompted some immigration reporters to adopt business reporting strategies such as listening to shareholder calls and studying contractors’ financial disclosures. CoreCivic and GEO Group, the country’s two largest private-prison corporations, trade on the stock exchanges and are regulated by the Securities and Exchange Commission, which requires them to publicly disclose certain information investors might need. The SEC’s EDGAR database houses annual reports, called 10-Ks, for all publicly traded companies. Those companies must release quarterly reports, and may also hold quarterly public calls.
“That’s been a great source…because we can kind of hear in their own words, This is our business strategy.… This is the business model that we’re moving towards,” Habibi says. Companies will sometimes discuss the lawsuits they’re facing, facilities they plan to open, or their take on the political landscape. Transcripts of quarterly public calls are available online through websites such as Seeking Alpha, and written quarterly reports are available through the EDGAR database. Nonprofits are required to disclose their 990 tax forms, which can be found online through websites such as Guidestar.
But many companies hired to house migrant children or provide specialized services in detention centers don’t trade on the stock market, and thus are not subject to these disclosure requirements. “At that point, it’s like a black hole,” Habibi says.
Pending legislation could compel greater disclosure. “Applying FOIA to private government contractors really is the next big fight in government transparency,” says Emily Manna, a policy analyst at Open the Government, a coalition that advocates for government transparency and accountability. The group is currently rallying support for Senator Ben Cardin’s (D-MD) Private Prison Information Act, which would require that private facilities detaining federal prisoners follow the same disclosure rules as public prisons.
But the issue is broader than prisons, Manna says, noting that private contractors are a fast-growing portion of the government workforce. “If we can’t apply FOIA to those contractors, it starts to really undermine FOIA.”
Note: Freelance and independent journalists can receive free legal advice and pro bono representation through the Reporters Committee for Freedom of the Press. If the suit is successful, the court may order the government to pay the journalist’s court costs.