By Nikki Zinzuwadia
Since 1967, the Freedom of Information Act (FOIA) has provided American citizens the right to request access to information held by federal agencies. All federal agencies are required to make requested records available unless material is protected from disclosure. These exemptions include information that protects national security, preserves an individual’s personal privacy, falls under another federal law, etc. While the law only applies at the national level, most state and local governments, including West Virginia, have their own public records laws.
FOIA fosters governmental transparency and makes the state more accountable to the American public. During the COVID-19 pandemic, people should be aware of the measures officials take to confront the threat of the deadly virus. A well-informed public can ensure problems are being addressed and allow them to better advocate for bolder action.
On April 22, the ACLU, partnering with multiple U.S. universities, released an epidemiological study that predicted 200,000 deaths from COVID-19 in the United States if federal and state governments do not decarcerate jails and prisons. The staggering prediction was significantly higher than the Trump administration’s estimation. Government models in April predicted that lives lost to COVID-19 would be “substantially under” 100,000 in the country.
This suggests the United States was failing to consider the impact of the virus on the incarcerated population. According to the ACLU report, the country could save as many as 23,000 incarcerated people and 76,000 in the broader community if we include jails and prisons in our public health response. We will prevent more infections, hospitalizations, and deaths among incarcerated people, correctional employees, and the general public, and we will avoid a COVID-19 death toll double the government’s estimate.
Now, projections by the White House model anticipate 200,000 COVID-19 deaths in the nation by October. As the ACLU study shows, protecting incarcerated people and prison workers will help avoid more preventable deaths both inside and outside correctional settings. We must compel state and federal prison authorities to publicize their COVID-19 data and be transparent with their policies and procedures. With this information, we will know how, and if, these facilities are protecting those who are at-risk of infection.
On April 29, the national ACLU filed FOIA requests with the Trump administration to uncover more details about its handling of the COVID-19 crisis in America’s jails and prisons. This initiative was supported by at least 35 state affiliates, including the ACLU of West Virginia. They demanded federal and state records on what the Bureau of Prisons, governors, and Departments of Corrections were doing to understand and prevent disease spread within correctional facilities and surrounding communities.
The ACLU of West Virginia submitted public COVID-19 records requests to the state’s Division of Corrections and Rehabilitation (DOCR) and the Governor’s office. ACLU-WV sought information about COVID-19 infection rates and mortality within correctional facilities, access to protective equipment and medical services for those incarcerated, action steps in cases of disease spread to surrounding communities, and other requests outlined in the letter.
On May 20, nearly a week before COVID-19 overwhelmed Huttonsville Correctional Center in Randolph County and prompted mass testing across West Virginia’s corrections system, the DOCR replied to ACLU-WV’s letter. In response to most requests, they provided public records. Any non-public records were “exempt pursuant to the provisions of” state laws. State officials also found they had “no records responsive” for models accounting for COVID-19 infection and mortality rates in correctional facilities.
Calls to reveal West Virginia’s COVID-19 records for state jails and prisons actually began earlier in the pandemic. By March 12, ACLU-WV had urged the DOCR to immediately enact plans to manage COVID-19 in correctional facilities. On April 10, ACLU-WV intervened in an ongoing federal civil case Baxley v. Jividen to file a motion to unseal information about the state’s response efforts. State officials soon released a partially edited copy of their plans, with other requested documents remaining concealed. By April 23, the court ordered release of most of the remaining records.
As COVID-19 surges through jails and prisons across the country, several state prison systems are being criticized for their management of the crisis. In May, a lawsuit against jail officials in Wayne County, Michigan alleged that facilities were not protecting medically vulnerable inmates from infection. A southern legal advocacy organization sued the Florida Department of Corrections after it failed to provide public records about their COVID-19 policies and procedures.
The Marshall Project recently claimed that the Federal Bureau of Prisons responded poorly to the pandemic, with officials taking measures that contributed to further disease spread in correctional facilities. Through interactions with federal prisoners and staff members, and reviews of internal correspondence within the agency, it found evidence of limited testing, misreporting of COVID-19 symptoms, and inadequate social distancing.
On May 18, Santa Barbara County, California announced it will exclude COVID-19 infections at Lompoc Federal Correctional Complex so it could move forward in its reopening plans. By then, the county’s Public Health Department had reported that federal prison inmates accounted for 64 percent of its total COVID-19 cases.
America’s jails and prisons have become epicenters of the COVID-19 pandemic. Publicly accessible COVID-19 prison records will increase political pressure to address the current crisis behind bars. If we are serious about confronting the devastating effects of the novel coronavirus, we must hold our country’s leaders accountable and secure protections for incarcerated people and prison workers.