Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records

As American prisons face unprecedented overcrowding, both the federal and various state governments have engaged private entrepreneurs to operate correctional facilities on a for-profit basis. In the federal context, one overlooked consequence of prison privatization involves decreased public access to prison records. When a federal agency delegates a public function, like the provision of correctional services, to a private contractor, the agency frustrates the purpose of the Freedom of Information Act. Prison records that otherwise would have been available to the public become insulated from disclosure by virtue of the contractor's nonagency status.

To safeguard prisoners' liberty interests and well-being, this Article argues that private federal prisons must be just as accountable to the public as public prisons. Congress should therefore enact legislation subjecting private federal prison records to disclosure under the Freedom of Information Act as part of a comprehensive program to monitor and oversee private prison operators.