Dunn et al v. Thomas et al

Filing 2228

PHASE 2A OPINION AND ORDER directing that the plf's 2045 MOTION to unseal quarterly staffing reports is granted to the extent that for each past and future quarterly staffing report filed by the defendants, the defendants are, initially , to file the facility-specific correctional data under seal and then, five months after the last day of quarter covered by the report, to refile the data unsealed. None of the other information in the quarterly reports shall be filed under seal, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 1/2/19. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2A OPINION AND ORDER ON PLAINTIFFS’ MOTION
TO UNSEAL QUARTERLY STAFFING REPORTS
In June 2017, this court found that the Alabama
prison

system’s

mental-health
significant

staff
factor

constitutionally
prisoners.

“persistent
and

and

severe

correctional

causing

inadequate

the

shortages
staff”

State

to

mental-health

are

of
a

provide
care

to

See Braggs v. Dunn, 257 F. Supp. 3d 1171,

1267-68 (M.D. Ala. 2017) (Thompson, J.).

As part of

the remedy, the court ordered the Alabama Department of
Corrections

(ADOC)

to

file

under

seal

quarterly

mental-health and correctional staffing reports.

See

Phase 2A Understaffing Remedial Order (doc. no. 1657)
at 7.

The plaintiffs moved to unseal these reports and

the defendants agreed, except as to the correctional
staffing statistics broken down by facility.

The court

held an evidentiary hearing on the sole disputed issue
of whether to unseal the facility-specific correctional
staffing
interest

figures.
in

After

accessing

balancing

these

the

public’s

figures

against

ADOC’s

interest in keeping them confidential, the court will
now

order

that

past

and

future

quarterly

staffing

reports be disclosed in their entirety, albeit with the
facility-specific correctional data being unsealed five
months after the last day of each quarter.

I.

PROCEDURAL HISTORY

The plaintiffs in this class-action lawsuit include
a group of mentally-ill prisoners in the custody of
ADOC.

The defendants are the ADOC Commissioner and

Associate Commissioner of Health Services, who are both
2

sued in only their official capacities.

In a liability

opinion entered on June 27, 2017, this court found that
ADOC’s mental-health care for prisoners in its custody
was, simply put, “horrendously inadequate.”
257 F. Supp. 3d at 1267.

Braggs,

The court laid out seven

factors contributing to the Eighth Amendment violation.
Id.

at

1267-68.

Additionally,

it

found

that

“persistent and severe shortages of mental-health staff
and

correctional

staff”

constitute

an

“overarching

issue[] that permeate[s] each of the ... contributing
factors

of

inadequate

mental-health

care.”

Id.

at

1268.
On February 20, 2018, the court issued a remedial
opinion on understaffing, see Braggs v. Dunn, 2018 WL
985759, at *1 (M.D. Ala. Feb. 20, 2018) (Thompson, J.),
along with a remedial order, see Understaffing Remedial
Order (doc. no. 1657).
defendants

to

‘Correctional

“submit
Staffing

The remedial order required the
to

the

Report’

court

under

and

‘Mental

seal

a

Health

Staffing Report’ on a quarterly basis, that is, March
3

1, June 1, September 1, and December 1 of each year.”
Id. at 7.

The defendants filed such reports under seal

in March, June, and September.
On

September

17,

2018,

the

plaintiffs

moved

unseal past and future quarterly staffing reports.

to
At

a hearing on the motion on September 18, the defendants
agreed that the mental-health staffing figures could be
unsealed.

The defendants also acknowledged that, until

June 2017, when the court issued its liability opinion,
ADOC had published correctional staffing figures broken
down by facility every month on its website.
counsel

represented

that

the

decision

Defense
to

stop

publishing the correctional staff figures was made for
three reasons: (1) concern that the reported figures
were inaccurate; (2) security concerns about disclosing
the

number

of

staff

posted

at

different

facilities,

especially given that the staffing numbers were lower
than in the past; and (3) the number of “authorized”
positions in the reports was no longer relevant.

4

See

Order Regarding Motion to Unseal (doc. no. 2075) at
1-2.
On September 20, 2018, the defendants agreed to
make

public

the

total

correctional

staffing

levels

across ADOC, but not to break down those figures by
facility.
The

See Notice of Filing (doc. no. 2066) at 1-2.

defendants

cited

“security

and

other

concerns

related to unsealing the facility-specific information
related to correctional staffing levels.”

Id. at 1.

Accordingly, the only remaining disputed issue from
the plaintiffs’ motion to unseal is whether to unseal
the

facility-specific

correctional

staffing

numbers.

The court held an evidentiary hearing on this issue on
October 23 and 24, 2018, and subsequently heard oral
argument to clarify the parties’ positions.1

1.
The final transcripts of the proceedings
related to the pending issue are not yet ready.
The
court has, therefore, cited to the “rough transcript”
in this opinion.
5

II. DISCUSSION
The public has a common-law right to inspect and
copy

judicial

records

and

documents.

See

Nixon

v.

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); see
also Newman v. Graddick, 696 F.2d 796, 802-04 (11th
Cir.

1983)

(applying

the

common-law

right

to

access

judicial records in a class action brought by Alabama
prisoners).

The “test for whether a judicial record

can be withheld from the public is a balancing test
that weighs the competing interests of the parties to
determine

whether

there

is

good

cause

to

public the right to access the document."

deny

the

F.T.C. v.

AbbVie Prods., LLC, 713 F.3d 54, 62 (11th Cir. 2013)
(internal
test

quotation

weighs

documents

"the

against

marks

public
a

omitted).
interest

party's

information confidential."

in

interest

This

balancing

accessing
in

court

keeping

the

Romero v. Drummond Co., 480

F.3d 1234, 1246 (11th Cir. 2007).

6

On the public’s side

of the scale is the “presumption ... in favor of public
Nixon, 435 U.S. at 602.2

access to judicial records.”
Here,
plaintiffs

to

support

invoke

the

their

motion

public’s

to

interest

unseal,
in

the

ensuring

both the constitutionality of Alabama’s prisons and the
“judicious

stewardship

of

taxpayer

dollars.”

Plaintiffs’ Pretrial Brief (doc. no. 2100) at 4-6.
the

other

unsealing,
“maintaining

side
the
the

of

the

scale,

defendants
safety

assert
and

weighing
an

security

On

against

interest
of”

in
ADOC

2. The factors courts consider in applying the test
include, among others, "whether allowing access would
impair court functions or harm legitimate privacy
interests, the degree of and likelihood of injury if
made public, the reliability of the information,
whether there will be an opportunity to respond to the
information, whether the information concerns public
officials or public concerns, and the availability of a
less onerous alternative to sealing the documents,"
Romero, 480 F.3d at 1246, as well as “whether the
records are sought for such illegitimate purposes as to
promote public scandal or gain unfair commercial
advantage, whether access is likely to promote public
understanding of historically significant events, and
whether
the
press
has
already
been
permitted
substantial access to the contents of the records,”
Newman, 696 F.2d at 803.
7

facilities.

Defendants’ Pretrial Brief (doc. no. 2102)

at 14.
Before examining these asserted interests, it is
helpful to identify the points of agreement between the
parties, and thereby define more precisely the scope of
the dispute before the court.

First, the parties agree

that the contested statistics need not remain sealed
permanently.

Instead, they disagree on how long the

records should remain under seal.3
argued

that

disclosing

the

While the plaintiffs

figures

in

a

quarterly

report five months after the last day of the period
covered

in

the

report

would

adequately

protect

the

public’s access right, the defendants requested that
the figures remain under seal for at least 12 months

3. Witnesses for both sides indicated that the
degree to which the correctional staffing figures are
up to date affects the security risk that they pose.
For instance, Eldon Vail, the plaintiffs’ expert,
testified that he would not want to post a “real-time”
roster of who is on shift for a particular day.
October 23, 2018, Rough Transcript at 7. Cheryl Price,
ADOC’s Institutional Coordinator, testified that the
more recent the correctional staffing information, the
greater concern it poses. See October 24, 2018, Rough
Transcript at 83.
8

after the last day of the period covered.4

See October

24, 2018, Rough Transcript at 94, 125.5
Second, neither party disputes that understaffing
undermines prison safety.6

The major contested security

issue here is whether and to what extent the disclosure
of statistics showing correctional understaffing poses

4. Defense counsel specified that the 12-month
delay would be acceptable unless changed circumstances
should arise.
See October 24, 2018, Rough Transcript
at 94.
5.
Currently,
the
partially
sealed
quarterly
staffing reports are filed with the court two months
after the last day of the period covered by the
quarterly report. For example, the defendants filed on
June 1, 2018, the quarterly staffing report for the
period of January 1 through March 31, 2018.
The
plaintiffs would accept unsealing three months after
the report is filed--resulting in a total five-month
informational delay--and the defendants would accept
unsealing
ten
months
after
the
documents
are
filed--resulting in a 12-month informational delay.
6.
The
court
has
found
that
correctional
understaffing “leaves many ADOC facilities incredibly
dangerous and out of control” and causes “prisoners and
correctional officers alike” to be “justifiably afraid
for their safety.” Braggs, 257 F. Supp. 3d at 1198.
9

a

security

danger,

not

whether

understaffing

itself

causes danger.7
Third
agreed

and

to

finally,

make

correctional

staff

the

public

defendants

the

employed

at

have

aggregate
all

ADOC

already

numbers

of

facilities.

Therefore, the balancing test here must focus on the
degree

to

which

publishing

facility-specific

information affects each party’s asserted interests as
compared

to

the

publication

of

the

aggregate

correctional staffing figures for all ADOC facilities,
7. The defendants contend that “it staggers the
imagination” that the plaintiffs and their expert argue
that, on the one hand, correctional understaffing
increases the risk of violence and other security
problems, while, on the other hand, denying that public
dissemination of the staffing levels would increase
security risks. Defendants’ Pretrial Brief (doc. no.
2102) at 10. The defendants’ argument ignores a basic
principle of American democracy: transparency and
public
awareness
promote
accountability
and
good
governance.
See Newman, 696 F.2d at 801 (“Informed
public
opinion
is
critical
to
effective
self-governance.”); cf. Nixon, 435 U.S. at 597-98
(noting that “the citizen’s desire to keep a watchful
eye on the workings of public agencies” is an interest
underpinning the right to access court records). Simply
put, spotlighting government failings can help ensure
that they are remedied.
10

not as compared to a hypothetical situation in which no
correctional staffing figures are public.
In sum, the narrow question before the court is
whether the benefit to the public’s interest that would
result

from

disclosing--with

less

than

the

12-month

delay accepted by the defendants--the facility-specific
figures

(as

opposed

to

the

already-public

aggregate

figures) outweighs the cost in terms of security that
would

result

from

such

disclosure.

As

elaborated

below, the court finds that the benefit outweighs the
cost

if

a

five-month

delay

is

used

to

balance

the

competing interests.

A.

The Public’s Interest

The plaintiffs assert two interests that the public
has in accessing the disputed staffing figures.
they

argue,

ensuring
Second,

the
the

“judicious

the

public

has

a

constitutionality
public

has

a

stewardship

of

strong
of

11

strong

interest

Alabama’s
interest

taxpayer

First,
in

prisons.
in

the

dollars.”

Plaintiffs’
Courts

Pretrial

have

concerning

Brief

recognized
public

government records.

(doc.

similar

access

no.

2100)

interests

to

judicial

at

6.

in

cases

and

other

For example, in Kelly v. Wengler,

the plaintiff prisoners sought to unseal a series of
filings related to defendant Corrections Corporation of
America (CCA)’s failure to staff the Idaho Correctional
Center adequately.

979 F.

Idaho 2013) (Carter, J.).
motion

to

taxpayers

unseal,
pay

CCA

the
to

Supp. 2d 1243, 1244 (D.

In granting the plaintiffs’
court

operate

reasoned
one

of

that

their

“Idaho
prisons.

With public money comes a public concern about how that
money is spent.”
F.2d

at

801

Id. at 1246; see also Newman, 696

(“This

litigation

concerning

penal

administration in Alabama is of paramount importance to
the citizens of that state.”); Storm v. Twitchell, 2014
WL 4926119, at *14 (D. Idaho Sept. 29, 2014) (“Whether
conditions

at

the

Amendment

of

the

county

jails

United

violate

States

the

Eighth

Constitution

is

important information for the general public to know.”)
12

(Dale, M.J.); cf. News-Press v. U.S. Dep’t of Homeland
Sec., 489 F.3d 1173, 1196 (11th Cir. 2007) (holding, in
a Freedom of Information Act (FOIA) case, that “the
public interest in determining whether FEMA has been a
proper

steward

of

billions

of

taxpayer

dollars

is

undeniable and powerful”).
Zooming

out,

in

this

case,

the

plaintiffs’

two

separate asserted interests appear to be two facets of
Alabamians’ overarching interest in ensuring the sound
and lawful administration of publicly funded government
agencies.

That is, certain Alabamians may care about

correctional

understaffing

because

they

care

about

whether their tax dollars are misspent; others may care
about

the

issue

because

they

do

not

government to violate the Constitution.

want

their

Either way one

looks at it, Alabamians indisputably have a powerful
interest in overseeing ADOC’s performance.
The

big

publishing

question,

then,

is

facility-specific--as

correctional

staffing

figures
13

to

opposed

advances

what

degree

to

overall--

this

powerful

interest.
between

Put
the

assigned

differently,

public

what

knowing

correctional

is

that

officer

the

there

difference
are

positions

3,326

throughout

ADOC, of which 1,096 are filled, and, on the other
hand, that there are, for example, approximately 270
assigned to prison X, but approximately only 50 filled?
See

June

1858-1)

2018
at

Quarterly

2.

The

Staffing

court

Report

finds

that

(doc.

there

no.

is

a

substantial difference.
To

start,

publishing

only

the

aggregate

vacancy

rate (67 %, 2,230/3,326) fails to inform the public
that

the

vacancy

rate--and

thus

understaffing

problem--is actually much worse at certain facilities,
such as, for example, prison X (approximately 81 %,
220/270).
media

See id.

outlets

particular

Furthermore, local and national

have

Alabama

written

about

prisons,

which

facility-specific

understaffing

significant

concern.

public

understaffing

See,

is

shows
an

e.g.,

that

issue
Mike

at

of

Cason,

Chronic Understaffing Grows Worse in Alabama’s Tutwiler
14

Prison,

AL.com

(Nov.

29,

2017),

https://www.al.com/news/index.ssf/2017/11/chronic_under
staffing_grows_wo.html;

Campbell

Roberton,

An

Alabama

Prison’s Unrelenting Descent Into Violence, N.Y. Times
(Mar.

28,

2017),

https://www.nytimes.com/2017/03/28/us/alabama-prisonviolence.html

(describing

lawsuit

alleging

that

understaffing leads to violence at St. Clair); Connor
Sheets,
Prison
Show,

Who’s

Guarding

‘Severely

Alabama’s

Understaffed,’

AL.com

(Jan.

Death

Row?

Internal

Holman

Documents

27,

2017),

https://www.al.com/news/birmingham/index.ssf/2017/01/wh
os_guarding_alabamas_death_r.html.

Finally, something

is to be said for the storytelling principle that any
good journalist knows: the more detailed a picture of a
problem

is--and

the

closer

it

gets

to

the

human

scale--the more vivid, graspable, and thus demanding of
public attention it can become.

To hide the details of

understaffing is to hinder public oversight of ADOC.

15

Granted, the defendants do not oppose unsealing the
quarterly facility-specific figures 12 months after the
last

day

of

question.

the

period

covered

by

the

report

in

Nevertheless, this court finds that there is

a substantial difference between a 12-month delay and
the two-month delay with which the quarterly reports
are currently published.

When this court originally

ordered the quarterly reports, it determined that they
were “necessary to apprise the court of whether the
defendants’

plan

is

addressing

correctional ... understaffing
quickly

as

additional
985759,

at

up-to-speed

possible,
measures
*9.

and

are

to

alert

needed.”

Similar

quarterly

effectively

Braggs,

reasoning

reports

the

ADOC’s
and

as

court

if

2018

WL

applies

published

here:
without

significant delay are needed to apprise the public of
whether

the

defendants

are

addressing

understaffing

“effectively and as quickly as possible,” and to alert
the public “if additional measures are needed.”

Id.8

8. See Kelly, 979 F. Supp. 2d at 1245 (“The public
16

While the public does not need real-time correctional
staffing

figures,

a

12-month

delay

would

seriously

hamper its ability to monitor ADOC’s staffing efforts.
In

sum,

unsealing

the

facility-specific

correctional staffing figures with less than a 12-month
delay would substantially advance the public’s interest
in

overseeing

ADOC’s

administration

of

Alabama’s

prisons.

B.
1.
On

the

assert

Security and specificity

other

their

security

Defendants’ Interests

side

interest

within

ADOC

of

the scale,

in

the

maintaining

facilities.

They

defendants
safety

and

argue

that

“clear case law recognizes the compelling interest in
maintaining a seal on judicial records ... containing
critical correctional staffing information,” and cite
three

cases

in

particular

that

“counsel

against

has a right, and even a responsibility . . . to monitor
the activities and performance of their own government
and use this information to implement change if
needed.” (quoting Skinner v. Uphoff, 2005 WL 4089333,
at *3 (D. Wyo. Sept. 27, 2005) (Brimmer, J.)).
17

unsealing.”
at 8.

Defendants’ Pretrial Brief (doc. no. 2102)

Yet, the three cited cases do little to support

maintaining confidentiality here.
examination,
unsealing:

they
it

reveal

is

a

In fact, upon closer

principle

disclosing

that

staffing

supports

figures

for

specific locations within a prison, not total staffing
figures for a prison, that poses a serious security
risk.
For

example,

the

defendants

cite

the

FOIA

case

Raher v. Fed. Bureau of Prisons, 749 F. Supp. 2d 1148,
1155

(D.

Or.

2010)

(Stewart,

M.J.),

and

in

a

parenthetical describe the court there as finding that
“disclosure of correctional staffing information ‘could
present a security risk.’”
749 F. Supp. 2d at 1155).
in

the

certain

Raher

opinion

‘staffing

Id. at 8 (quoting Raher,
However, the full sentence

is

actually:

patterns,’

such

as

“disclosure
the

of

specific

number of guards in a specific location at a specific
time, could present a security risk, but more general
staffing

patterns,

such

as
18

total

number

of

guards

employed in a facility, likely does not.”
F. Supp. 2d at 1155 (emphasis added).
sentence,

omitted

by

the

Raher, 749

The end of the

defendants,

directly

contravenes their security argument because it states
that

publishing

the

information

at

issue

here--the

total number of guards employed at a prison--“likely
does not” pose a security risk.

Id.

The defendants cite a footnote in a second case,
Kelly v. Wengler, 979 F. Supp. 2d 1104, 1112 n.14 (D.
Idaho 2013) (Carter, J.).

In the footnote, the court

admitted it had used “vague” language in the opinion by
referring

to

a

“handful”

of

officers

posted

in

a

particular area of the prison because the court “agrees
with

Defendants

that

publicizing

specific

staffing

assignment numbers could cause security problems for
the facility.”

Id.

Notably, the decision came down

just a few months after another ruling in the same
litigation, discussed earlier in section II.A of this
opinion, where the court granted the plaintiffs’ motion
to

unseal

documents

relating
19

to

correctional

understaffing.

See Kelly, 979 F. Supp. 2d at 1244.

And when the footnote is read in the context of the
full

opinion,

defendants’
because

its

ostensible

security

the

opinion

argument

support

falls

repeatedly

for

apart.

refers

This

to

the
is

statistics

showing ongoing correctional understaffing problems at
a particular correctional facility, which demonstrates
that the court had no security qualms with disclosing
such data.

For instance, the opinion states that there

were typically 55 mandatory posts for the day shift at
the facility, and 37 for the night shift, and cites
evidence that there were more than 4,800 hours over a
seven-month

period

post was vacant.
1109

n.5.

at

the facility

where

a

security

See Kelly, 979 F. Supp. 2d at 1108,

The

court

further

noted

that

the

understaffing persisted up to the time of the ruling.
Id. at 1109.
expressed

Finally, the footnote cited by defendants

its

hesitation

to

publish

the

staffing

assignment numbers in a particular location within a
facility,

which

is

distinct
20

from

the

defendants’

security concern with posting the overall figures for
an entire facility.

See, e.g., Raher, 749 F. Supp. 2d

at 1155 (explaining that disclosing the number of staff
at a specific location at

a specific time within a

prison could present a security risk, but publicizing
the

total

number

of

guards

employed

in

a

facility

likely does not).
A third decision cited by the defendants, Grassi v.
Corr. Corp. of Am., is also distinguishable from the
case here.
2008)

2008 WL 5172154, *1 n.2 (D. Col. Dec. 9

(Krieger,

defendants’

J.).

motion

There,

to

seal

the

a

court

granted

confidential

the

Colorado

Department of Corrections (CDOC) policy governing the
transportation of inmates, which contained “sensitive
security
during

procedures
inmate

facilities.”
security

and

staffing

transportation
Id.

interests

The

court

in

levels

to

outside
reasoned

keeping

be

used

of

prison

that

“CDOC’s

this

material

confidential outweighs the public interest in access to
court

records,

particularly
21

because

the

particular

details of the transportation procedure are of fairly
minimal relevance to the issues resolved herein.”
The

decision

is

distinguishable

on

three

Id.

grounds.

First, the documents at issue there contained staffing
levels and “sensitive security procedures,” not just
staffing

levels.

staffing

levels

Id.

Second

pertained

to

and
a

relatedly,
specific

the

prison

procedure--transporting inmates outside of prison--not
to

the

overall

discussed

above,

staffing
this

within
more

a

facility.

granular

As

staffing

information is more likely to present a security risk.9
Third, the court’s reasoning that the procedures the
plaintiffs sought to disclose were “of fairly minimal
relevance” to the merits of the case does not apply
here,

given

litigation.

that

understaffing

is

central

to

this

See Braggs, 257 F. Supp. 3d at 1267-68.

9. Transporting inmates outside of prison presents
unique security risks that are not at issue here.
22

2.
The

three

indicate

that

Dangerous deductions?

cases
the

cited

by

prospect

the

of

defendants

disclosing

thus

staffing

numbers for a particular location within a prison is
what creates significant security concerns.
of

this

principle,

ADOC’s

the

Institutional

noteworthy,

because

testimony

Coordinator,

she

suggested

of

In light

Cheryl

is
that

Price,

particularly
ADOC

inmates

could use the overall staff numbers for a facility to
deduce

how

many

security

officers

are

on

particular locations within the facility.
24,

2018,

example,
quarterly
employed

Rough
she

said,

report
at

Transcript

Bibb

if

and

at

75-76,

prisoners
see

the

Correctional

at

See October
81-82.

were

number

post

to
of

Facility

read

For
a

officers
during

a

particular period, they could divide that number by the
number of shifts to roughly determine how many officers
are on guard at a time.10

Armed with the knowledge of

10. Based on defense counsel’s representations
about the content of the staffing reports, it appears
unlikely that inmates could accurately deduce how many
23

the number of guards on shift, an inmate viewing guards
in his particular location of the prison could estimate
how many are left in the rest of the facility.
inmates

from

different

communicate

with

areas

of

each

the

prison

other--perhaps

And if
were

to

using

cellphones--they could deduce the numbers of officers
present

in

specific

Price’s

suggestion

remaining
that

the

areas

of

inmates

the

prison.

could

deduce

location-specific staffing numbers from a total number
of staff in a facility is concerning.
Yet, this concern is almost entirely mitigated by
the fact that the types of extrapolations Price fears
would

hardly

give

inmates

any

more

knowledge

of

staffing presence than what they can already learn with
their own eyes.

As Price admitted, the inmates can see

guards are on shift at a particular time. Counsel said
that the “actual” staffing figures for each facility in
the quarterly reports do not reflect overtime hours.
See October 24, 2018, Rough Transcript at 104.
If
officers work in excess of their assigned shifts, and
those overtime hours are not reflected in the quarterly
reports, then one cannot determine the number of staff
working on a particular day by dividing the total staff
by the number of shifts.
24

how

many

guards

are

present

in

different

sensitive

areas of the prison, such as the towers, perimeter, and
yard.

Id. at 78.11

“already

have

a

In Price’s own words, the inmates

visual

on

our

staffing.

It’s

not

rocket science to see if you only have 60 officers
assigned at Bibb, and you’ve got four shifts, where
those

officers

information

just

are

located.

confirms

(emphasis added).

that

Publishing
fact.”

Id.

this
at

61

Indeed, if prisoners from different

areas of a facility can communicate with each other
using cellphones, as Price suggested, they could simply
share with each other their first-hand observations of
how many officers are in each location, without needing
to do any extrapolating.
To

her

credit,

Margaret

Savage,

the

defendants’

expert, also concedes that “casual observation may lead
inmates to the same conclusion” that they would reach
by deducing security weaknesses from the total staffing
11. Two ADOC inmates also testified that they could
personally observe whether certain security posts are
staffed or not. See October 24, 2018, Rough Transcript
at 13-14, 29-30.
25

numbers

at

a

particular

facility.

(doc. no. 2104-1) at 5.12

Savage

Affidavit

Still, Savage conjectures

that publishing the figures would make matters worse
because

“external

confirmation

may

be

enough

to

embolden inmates to attempt” illegal activities.

Id.

This is speculation about what might motivate inmates
to act, not evidence that publication of the statistics
will

broaden

inmates’

knowledge

of

security

vulnerabilities in prison.
As

the

possibility
justify
F.2d

Newman
of

prison

keeping

at

Department

803-04.
of

decision

makes

violence

judicial

is

records

There,
Corrections

the

clear,
not

the

sufficient

confidential.
Commissioner

testified

mere

of

“only

to
696
the

that

publication [of the court filings] could make prison

12. Plaintiffs objected to any consideration of
Savage’s affidavit, given that she did not testify.
See October 23, 2018, Rough Transcript at 30.
They
requested an opportunity to cross examine her if the
court relied on her affidavit.
Because the court is
not relying on Savage’s affidavit to support any
findings in favor of keeping the documents sealed, it
is not necessary to allow the plaintiffs to cross
examine her.
26

violence
conclude

a

‘possibility,’”

that

“fear

of

Id.

at

established.”

leading

prisoner
803.

the

unrest ... was
The

newspapers to copy the filings.

court

court

to
not

allowed

Like in Newman, the

defendants here have not shown that it is anything more
than a “possibility” that external confirmation of what
the prisoners already observe about understaffing would
embolden them to act.

At the end of the day, because

prisoners personally witness understaffing, “it is not
at all certain from the record that preventing” public
viewing of the staffing reports would accomplish the
“purpose

[of]

prisoners.”

keeping

the

information

from

the

Id.

3.

Other prison systems’ websites

The defendants argue that no other department of
corrections
publishes
Defendants’
Savage

with

staffing

levels

facility-specific
Pretrial

asserted

that

similar

staffing

Brief

(doc.

she

“sampled

27

no.
the

to

ADOC’s

information.
2102)

at

websites

11.
of

several

other

correctional
“regularly

departments
staffing

of

correction

levels”

publishes

and

with

none

facility-specific

of

low
them

correctional

staffing and vacancy information on their websites.”
Savage Affidavit (doc. no. 2104-1) at 6.

Plaintiffs’

counsel, on the other hand, said that facility-specific
staffing

information

states,”

including

October

24,

2018,

is

for

“available

Louisiana

Rough

for

and

Transcript

a

lot

of

Georgia.

See

110-11.

The

at

court need not resolve the factual dispute of how many
other departments of corrections publish the figures,
because it is beside the point.

The question here is

not whether, as a policy matter, ADOC should publish
the

staffing

business;

figures

rather,

the

in

the

issue

is

ordinary
whether

course
the

of

public

should be allowed to access records filed in this court
proceeding.
departments

Evidence
do

not

that

publish

other

staffing

data

correctional
would

only

bolster the defendants’ security arguments here if the
defendants

provided

proof
28

that

these

departments

declined

to

concerns.

publish
The

the

defendants

data

based

offered

on

security

no

such

heard

on

proof,

however.
The

only

department’s
information

evidence
decision

was

the

plaintiffs’ expert.

the

court

whether
testimony

to
of

another

publish
Eldon

such

Vail,

the

He testified that while Secretary

of the Washington Department of Corrections, he would
provide the public with correctional staffing numbers
upon request, but did not routinely publish them on the
website because the issue never came up.
23, 2018, Rough Transcript at 5-6.
thus

demonstrates

that

the

absence

See October

Vail’s testimony
of

correctional

staffing figures on other departments’ websites does
not necessarily mean that the officials there believed
publication

posed

a

security

risk.

In

fact,

Vail

unequivocally opined that publishing the ADOC figures
at issue here would not create a security risk.
11.

29

Id. at

Perhaps most notably, the evidence the court heard
on ADOC’s own decision in 2017 to end its more than
15-year practice of publishing the quarterly staffing
reports on its website leads the court to conclude that
security

was

post-hoc,
former

at

reason

chief

testified

best

that

a

minor,

behind

the

staff

to

of
he

and

and

possibly

decision.
the

the

Steve

ADOC

even
Brown,

Commissioner,

commissioner

made

the

decision to remove the quarterly staffing information
from

the

website

because

it

was

inaccurate.

October 23, 2018, Rough Testimony at 49-50.

See

Brown’s

October 2, 2017, email to his staff instructing them to
remove the information confirms as much, as it states
that: “We want to pull the personnel chart from the
monthly statistical report until the staffing studies
are

completed

and

staffing shortages.”
1.

we

have

accurate

data

concerning

Brown Email (doc. no. 2091-3) at

While Associate Commissioner Grantt Culliver said

that he had informally raised some security concerns
regarding the publication of the data in 2017, Brown
30

suggested that Culliver’s concerns were basically an
afterthought raised after Brown and the commissioner
already intended to remove the information due to its
inaccuracy.
50.

See October 23, 2018, Rough Transcript at

To be clear, just because security was not the

driving force behind the original decision in 2017 to
stop publishing the staffing figures does not mean the
defendants cannot now cite security as a reason not to
disclose them.
the

prior

testimony--is

What the defendants’ reasoning behind

decision
that

does
a

demonstrate--like

department

of

Vail’s

corrections’

decision not to routinely publish staffing data does
not necessarily show that prison officials viewed such
publication to be dangerous.
In

sum,

the

court

finds

that,

while

publishing

facility-specific quarterly correctional staffing data
possibly poses some degree of risk, the risk is not
significant enough to overcome the strong interest in
public disclosure of the information.

31

C.

Balancing the Interests

Taking a step back, the court’s decision here can
be conceptualized as that of picking a point on a graph
with two axes.
the

One axis measures the specificity of

correctional

staffing

figures,

and

ranges

from

publishing the number of staff in a particular post in
a

prison

to

publishing

the

aggregate

correctional staff in all ADOC facilities.

number

of

The other

axis measures the delay with which the statistics are
published,
staffing

ranging

from

statistics,

disclosing

to

permanently sealing them.

delaying

real-time
years,

daily

or

even

The more granular the data,

and the more recent it is, the greater the security
risk,

and

public.

the

greater

its

value

in

informing

the

Conversely, the less recent and granular the

data is, the less security risks and informative value
it presents.
The points on the delay-specificity graph that the
parties propose are not so far apart.

The defendants

currently disclose, with a two-month delay, quarterly
32

reports

containing

numbers,

and

quarterly

have

aggregate
expressed

facility-specific

correctional
willingness

numbers

staffing

to

with

disclose

a

12-month

delay. By contrast, the plaintiffs moved to disclose
the quarterly facility-specific figures that are filed
with a two-month delay, and ultimately indicated that
they

would

accept

disclosing

the

figures

with

a

five-month delay.
Weighing the public’s and the defendants’ interests
analyzed

above,

quarterly

the

court

facility-specific

delay--that

is,

filed

data

court--strikes

in

Delaying

the

additional
security

three

months

unsealing

three
concerns

finds

of

months
raised

with

after

an

that
a

the

five-month
reports

appropriate

the

staffing

sufficiently
by

disclosing

balance.

reports

mitigates

defendants,

are

while

an
the
not

unduly hampering the public’s ability to oversee ADOC’s
spending as well as its compliance with court orders
and the Constitution.

33

***
Accordingly,
motion

to

it

unseal

is

the

ORDERED

that

defendants’

the

plaintiffs’

quarterly

staffing

reports (doc. no. 2045) is granted to the extent that,
for

each

past

and

future

quarterly

staffing

report

filed by the defendants, the defendants are, initially,
to file the facility-specific correctional data under
seal

and

quarter

then,

covered

unsealed.

None

five
by
of

months

the

after

report,

the

other

to

the

last

refile

information

day

the
in

quarterly reports shall be filed under seal.
DONE, this the 2nd day of January, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

34

of

data
the