I have long admired Wilbert Rideau, the award-winning journalist who spent 44 years in prison for crimes that he never committed. Throughout his confinement, Rideau exposed violence and corruption in Louisiana’s justice system in the prison newsmagazine The Angolite.
This is a risky business for anyone confined in America.
Rideau recounts in his memoir, In The Place of Justice: A Story of Punishment and Deliverance, how a correctional official wrote to him declaring, “I do not feel that it is in the interest of this department or the inmates to publish derogatory information regarding public officials.”
Given such sentiments, Rideau and his colleagues were inclined to believe that “somewhere down the line, it would cost us.”
They were correct.
The repercussions that they and other prisoners faced ranged from solitary confinement to loss of privileges to transfers to “the wild side” of the penitentiary. As one staffer for The Angolite lamented, “The concept of a free press in prison can’t and won’t work because the Department of Corrections wants us destroyed.”
I understand perfectly.
As a confined columnist for The Crime Report I have learned that writing exposés critical of the correctional system is better left to those whose freedom insulates them from reprisals. While I have not yet been silenced, I have learned to be wary, for there are policies and statutes that can be used against me.
For instance, when I wrote about a drug epidemic spreading throughout prisons in Washington State, I could have been sent to segregation “pending investigation” into my claims pursuant to Directive 320.200.
In fact, were an administrator inclined to direct me to cease writing such exposes and I disobeyed, I could be sanctioned for sending communications “contrary to previous written warnings or direction” pursuant to Rule 707.
Potential threats aside, what disturbs me most is a particular method that the Washington Department of Corrections (WDOC) uses to prevent and deter prisoners from whistleblowing.
A benign statute that was intended to stop prisoners from abusing open government laws has since been weaponized to prevent them from uncovering and exposing negligence and misconduct.
By this means, those who are best positioned to reveal the correctional system’s best-kept secrets are left with few ways to prove their contentions.
The Shield and The Sword: Law on the Books
To understand how this is accomplished requires a brief analysis of the Public Records Act (PRA) in the State of Washington.
Much like the Freedom of Information Act that applies to the federal government, the PRA allows citizens to obtain records that are used or maintained for official business by Washington State agencies. Under the PRA, records must be made available upon request “even though such examination may cause inconvenience or embarrassment to public officials or others.”
The principle that underlies the PRA is that “the public has an interest in knowing about claimed misconduct at public agencies.”
To ensure compliance, courts are empowered to impose monetary penalties against agencies to compensate those that are forced to bring suit in order to obtain public records that were wrongfully withheld from them.
Therein lies the rub.
This state’s Department of Corrections has not been a model of transparency nor compliance with the PRA. Settlements and penalties from 2003 to 2015 cost the agency an astounding $1,936,149.
Much to the ire of WDOC, many of these payments went straight into the hands of prisoners whose rights under the law were violated. In time, officials became convinced that a cottage industry of semi-professional record requestors was developing in correctional facilities.
Even more alarming than the specter of profiteering prisoners were genuine threats posed by prisoners with malevolent intentions. Over the years, a handful of prisoners had utilized the PRA to obtain personal information to threaten and intimidate correctional staff and others confined in WDOC facilities along with members of the community.
WDOC and the State Attorney General’s Office had enough of this and sought a remedy. The legislature responded by amending the PRA in two significant ways.
First, to shield public agencies from liability for making innocent mistakes when handling a prisoner’s record request, penalties could only be awarded if an agency acted in bad faith, such as in “instances where the agency refused to disclose information it knew it had a duty to disclose in an intentional effort to conceal government wrongdoing and/or to harm members of the public.”
Second, injunctions could now be sought against a prisoner that the agency believed was seeking records to undermine the security of correctional facilities or public safety or was simply out to harass or intimidate the agency. Furthermore, any prisoner who was enjoined on one of these grounds was not entitled to penalties—even if the agency had acted in bad faith when responding to the record request.
What the legislature did not foresee was that agencies that conceal records could utilize this as a loophole. With little difficulty, government attorneys can obtain an injunction to cloak an agency’s malfeasance and help it escape liability by claiming a prisoner has a nefarious intent behind his record requests.
This is not a theory. I know from personal experience.
I must also admit that it is quite ingenious.
Unsheathing the Broadsword: The Law in Action
Sexually explicit information when linked to the performance of a government agency is “of legitimate concern to the public and must be disclosed,” according to the Washington Supreme Court. Furthermore, courts have made clear that the PRA “does not place a limit on the number of record requests an individual can make.”
Naively, I took the case law that I read seriously.
In early 2015, I decided to write an article regarding WDOC and JPay, a private company that operates communications systems in prisons across the country. WDOC appeared to be arbitrarily applying policies by turning a blind eye to sexually explicit content coming through JPay’s system to prisoners.
So, to uncover the extent of these instances I submitted numerous PRA requests for records which would establish that this was in fact taking place.
In response to my requests WDOC repeatedly claimed that the records were not disclosable under the PRA, and instead advised that I should request the records directly from JPay.
I did—to no avail.
Nevertheless, as evidence of wrongdoing developed I brought it forward to local media and state legislators Roger Goodman and Brad Klippert. I even gained assistance from Loren Taylor, the Director of the Washington Coalition for Responsible Justice, who is a former WDOC employee.
Never did I envision that a lawsuit would subsequently be instituted against me.
WDOC was crying harassment due to the number of record requests that were submitted. The agency also claimed the records were not subject to disclosure under the PRA, and maintained that no prisoner could have any legitimate interest in records that—in some cases—were sexually explicit.
Simplicity and repetition were at the heart of the agency’s legal strategy.
Over and over again its lawyers insisted that I was not writing an article, that I was part of some money-making scheme, that the records were personal and private, and that releasing them to any prisoner would threaten institutional security.
While WDOC never investigated any of the allegations against me their aspersions were overwhelming.
The watchdog organization that was heretofore assisting me ran for cover. Given that the Director tries to work collaboratively with WDOC, I should have seen this coming.
I found myself acting as my own attorney . The agency’s legal team fended me off easily.
It was David versus Goliath, sans sling and rock. So, the results should not be that surprising.
One must remember that fairness in the litigation process ultimately depends on the strength of the advocacy of the parties. Therefore, a person without legal representation, the right to subpoena evidence, the financial resources to depose witnesses and purchase transcripts, or experience with the litigation process is, I learned, essentially defenseless.
By the time of the hearing, the judge refused to believe that I was writing an article on how WDOC was putting its monetary interests before public safety. The court therefore issued a permanent injunction preventing me from obtaining the records that I requested.
Four months later, my article was published in The Crime Report. It exposed how the Sex Offender Treatment and Assessment Program (SOTAP) was being compromised by the JPay system and WDOC was turning a blind eye to the problem.
Unfortunately, the injunction prevented me from obtaining records that would establish the extent to which prisoners in SOTAP have access to sexually explicit material, and how much WDOC has earned in commissions from the sale of this content.
It is noteworthy that to obtain an injunction, high level WDOC administrators maintained, “Subjecting JPay messages and other content to public disclosure would create a significant security concern, could endanger the families of offenders, and would erode the trust between the Department, offenders, and their families.”
Ironically, these very records were later released under the PRA to, of all people, a sex offender confined in WDOC. While the PRA expressly forbids agencies from treating record requestors differently, no suit was initiated by WDOC to prevent this prisoner from obtaining JPay messages and other content.
Apparently, releasing these records to a whistleblower is more dangerous to WDOC than handing them over to a rapist .
The Agony of Defeat: Reflections on Public Policy
Now that the dust has settled, I realize that I was a fool to believe that the truth has a bearing on the outcome of litigation. However, this is much bigger than prisoners being sued under false pretenses.
When agencies have impunity to target prisoners to prevent the disclosure of public records, it fosters a climate of non-compliance and weakens open government laws for everyone.
Moreover, with respect to WDOC, it undermines the legislative decree for the corrections system to be “accountable to the citizens of the state.”
Jeffrey Ian Ross and Stephen C. Richards, professors of criminology and criminal justice, observe in Beyond Bars: Rejoining Society After Prison:
“Most Americans have no idea what goes on behind bars and how it affects prisoners, even after they are released. There should be more transparency. Correctional facilities need to be open to inspection and investigation. Prisoners and correctional workers should be allowed to be interviewed more frequently.”
I agree wholeheartedly.
Still, let me assure you, it will not be me investigating anything if obtaining records under the PRA is necessary.
I have learned a valuable lesson: I will never allow myself to forget when it comes to the law in action.
I know that if ever I am hauled in front of a judge to account for myself I will be perceived as a convict who cares nothing for the public interest. The Department of Corrections has the will and the means to ensure of this.
Editors Note: Additional documents and transcripts relating to assertions in this column are available on request.
Jeremiah Bourgeois is a regular contributor to TCR, and an inmate at Stafford Creek Corrections Center in Aberdeen, WA, where he is currently serving 25 years to life for a crime committed when he was 14. He will be eligible to go before the parole board in 2017. He welcomes comments from readers.