7th Circuit OKs limits on inmates’ possession of public records

Friday, August 12, 2011

A prison policy limiting inmates’ possession of public records does not violate the First Amendment, a federal appeals court has found.

Ruling Aug. 3 in Akright v. Hepp, the 7th U.S. Circuit Court of Appeals enforced a Wisconsin prison rule that defines “contraband” to include documents obtained under the state’s open-records act that do not refer to the inmate.

Jeffrey Akright, a prisoner in Wisconsin’s Jackson Correctional Institution, challenged the rule after prison officials denied him access to records concerning the pricing of canteen items at the prison. Akright believed the prison’s pricing scheme was illegal under state law and sought records to prove it.

Because Wisconsin’s open-records law prohibits a prisoner from requesting records that do not refer to him, Akright asked his grandmother to obtain the documents for him. She did so and mailed the records to Akright. Prison officials confiscated the files and placed Akright in disciplinary segregation for attempting to possess contraband.

Akright then sued the warden, Randall Hepp, and the mailroom supervisor, April Fumoy, claiming the prison policy violated his First Amendment rights. In response, Hepp and Fumoy argued that their actions under the policy were justified for two reasons. First, they said, Akright was attempting to circumvent the open-records act, which was designed to reduce the volume of burdensome records requests from inmates and to prevent prisoners from receiving information that might reveal the prison’s security procedures. Second, the rule as applied in this case, they said, prevented Akright from obtaining vendor account records that could facilitate fraud and smuggling.

Although admitting she was skeptical of the concerns regarding fraud and smuggling, U.S. District Judge Barbara Crabb held that the prison had a legitimate penological interest in preventing attempts to circumvent the open-records law and therefore held Akright’s lawsuit could not proceed.

On appeal, Akright, who represented himself, argued in part that prison officials could not rely on “post-hoc explanations” for the rule offered for the first time during the trial. Instead, Akright claimed, officials could rely only on whatever reasons they cited when they adopted the rule.

The appellate court, citing its 2009 ruling in Hammer v. Ashcroft, rejected Akright’s argument. In Hammer, an inmate challenged a ban on face-to-face interviews between prisoners and reporters, on the grounds that the rationale offered at the time the ban was adopted — that the ban would silence disfavored viewpoints — violated the First Amendment. In a 5-3 en banc ruling, the 7th Circuit upheld the ban, saying that during the litigation, officials could offer a different, permissible reason for the ban.

Noting that Hammer established that “[t]he inquiry is an objective one rather than based on the motive for enacting the policy,” the court in Akright held that the undue-burden rationale offered by officials during the case was sufficient to allow officials to deny inmates documents obtained under the open-records act.

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