D.C. Circuit Court rules that Justice Dept. Improperly Withheld Bureau of Prisons Records

In 2022, American Oversight submitted an amicus brief in a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) that sought the release of Bureau of Prisons (BOP) records related to the procurement of drugs used for execution by lethal injection. On Tuesday, the D.C. Circuit Court ruled in CREW’s favor, writing in its decision that the BOP had not justified its withholding of information in the documents as “commercial” and “confidential” information.

CREW first submitted Freedom of Information Act (FOIA) requests to the Justice Department in August 2019, seeking records related to the procurement of the drug pentobarbital, which was added to the Bureau of Prisons’ execution protocol in 2019 following former Attorney General William Barr’s announcement that the federal government would resume executions.

In December 2019, CREW sued the Justice Department for the records. BOP continued to withhold the identities of the contractors in the government’s pentobarbital supply chain, and key terms of the government’s contracts that it claimed could reveal the contractors’ identities under FOIA Exemption 4, which is meant to protect privileged or confidential third-party “commercial or financial information” from disclosure.

American Oversight supported CREW’s argument that the federal government broadly applied open records law exemptions to the records, writing in the amicus brief that the practice “shields the very identity of private entities doing business with the government and creates a loophole that would allow government agencies to conspire with private parties to contract around the government’s transparency obligations.”

The court concluded that BOP did not show that contractors’ identities were themselves “commercial” information. As American Oversight argued in its brief, the lower court’s ruling ran contrary to the intent of FOIA. Read more about the case and American Oversight’s amicus brief here.