TN Court of Appeals Rules Against CCA for Second Time in PLN Public Records Case

TN Court of Appeals Rules Against CCA for Second Time in PLN Public Records Case

By Prison Legal News

In February 2013, the Tennessee Court of Appeals
issued its second ruling in a long-running lawsuit filed under the state’s
Public Records Act against Corrections Corporation of America (CCA), the
nation’s largest for-profit private prison company. The Court of Appeals
affirmed the ruling of the lower court, holding that CCA must produce documents
that it had refused to disclose, plus pay attorney fees and costs.

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The suit was filed by PLN managing editor Alex
Friedmann. In 2007, CCA had denied Friedmann’s request for records related to
litigation filed against CCA and for reports or audits that found contract
violations by the company, among other documents. The Chancery Court ruled in
Friedmann’s favor on July 29, 2008, finding that CCA was the functional
equivalent of a government agency and ordering the company to produce the
requested records. [See: PLN, Oct. 2008, p.24].

CCA appealed and the Court of Appeals affirmed in
September 2009, noting, “With all due respect to CCA, this Court is at a
loss as to how operating a prison could be considered anything less than a
governmental function.” The appellate court narrowed the lower court’s
ruling by exempting one CCA-run Tennessee prison (the South Central
Correctional Center), finding that it fell under a different state statute. The
case was then remanded to determine which records CCA would have to disclose.
See: Friedmann v. CCA, 310 S.W.3d 366 (Tenn.Ct.App. 2009), review denied.

Following remand, CCA produced a number of the
requested records, including hundreds of pages from reports and audits in which
the company had been found in violation of or non-compliance with its
contractual obligations to operate prisons and jails in Tennessee. However, CCA
refused to produce copies of settlement agreements, verdicts or releases in
cases where it had paid monetary damages to resolve lawsuits or claims. CCA
also refused to release database printouts listing such settlements.

In the latter regard, Friedmann knew that such
printouts existed because CCA had attached one to its response to a request for
proposal (RFP) in Florida, which listed cases the company had settled –
including the monetary amounts – from 2001 to 2003. When Friedmann’s attorney
deposed CCA general counsel Steve Groom in April 2011, Groom claimed that the
release of such information had been inadvertent and unintentional, as the
company usually requires confidentiality provisions in its settlement agreements.
However, when asked whether CCA had notified opposing counsel in each of the
cases where the settlement amount had been inadvertently disclosed by CCA in
its RFP response, Groom admitted the company had made no such notifications.

On December 1, 2011, Chancellor Claudia Bonnyman ruled
against CCA, holding that it could not withhold its settlement documents, nor
its database printouts listing settlements involving the company, which CCA had
argued was protected by attorney work-product doctrine. [See: PLN, Jan. 2012,
p.45]. The court also ordered CCA to pay $28,367.50 in Friedmann’s attorney
fees, and the company again appealed.

“CCA has fought tooth-and-nail against disclosing
these records for more than four years,” Friedmann said at the time.
“This would not have occurred with a government agency, and evidences a
significant problem with prison privatization: private prison companies like
CCA prefer to operate in secret, with little transparency, and are not
accountable to the public.”

On February 28, 2013, the Court of Appeals again ruled
against CCA. The appellate court wrote that it “respectfully disagree[d]
with CCA’s conclusion” that the company did not have to produce its
settlement-related records because such records were not part of its official
business related to operating prisons and jails.

According to the appellate court, “settlement
agreements are considered public records under the Public Records Act. Thus, as
the functional equivalent of a government agency, CCA was required to turn over
settlement agreements related to the operation of the correctional facilities
unless otherwise provided by state law.” The Court noted that “the
vast majority of case law clearly flies in the face of [CCA’s]

Further, the Court of Appeals affirmed the lower
court’s award of $28,367.50 in attorney fees against CCA, finding that
Chancellor Bonnyman had properly found that “CCA acted in bad faith in its
refusal to disclose the settlement agreements.” The appellate court also ordered
CCA to pay Friedmann’s attorney fees incurred in the appeal, and assessed costs
against the company. The case was remanded for determination of the total
amount of attorney fees the company must pay. CCA was represented by Joseph F.
Welborn III and Jason W. Callen.

“Perhaps now, after almost five years of
litigation, CCA will finally produce the records it should have produced all
along pursuant to the state’s public records law,” Friedmann stated.
“CCA officials apparently think they are above the law even though their
company performs the governmental function of running prisons and jails, and is
paid with public taxpayer funds. CCA is one of the least transparent companies
when it comes to public accountability, which is very disturbing given that it
incarcerates people for the purpose of generating profit.”

Friedmann was represented by Memphis attorney Andrew
Clarke. The case settled in May 2013 following remand, with CCA agreeing to
produce the records and pay $50,000 in attorney fees. See: Friedmann v. CCA,
Court of Appeals of Tennessee at Nashville, Case No. M2012-00212-COA-R3-CV.

(First published by Prison Legal News and used here by permission)