After the first federal executions in 17 years, there was a spike in COVID-19 cases in Vigo County, Indiana, the home of the Federal Correctional Complex, Terre Haute: the prison where federal executions take place. This may have been a result of the executions, because executions involve the gathering and movement of hundreds of staff and law enforcement officers, as well as media, lawyers, family, and spiritual advisor witnesses, many of whom travel from around the country.
On July 12, just two days before the execution of Daniel Lee was scheduled to occur, the government disclosed that a staff member involved in preparations for the executions had tested positive for COVID-19. Although the BOP had previously vowed that all staff members would wear masks to reduce COVID-19 risks, it acknowledged that this staff member had worked without wearing a mask through July 8, at a time when he was likely infectious. He had participated in execution planning meetings with other officers and had worked in the area of the prison where the prisoners scheduled for execution are housed.
Because two more federal executions are scheduled for late August, we filed this Freedom of Information Act case seeking COVID-19 data for prisoners and staff at FCC Terre Haute, and cost and staffing data related to federal executions. Although the Bureau of Prisons granted our request for expedited processing, no documents had been disclosed as of August 21, less than a week before the next execution.
On August 24 we filed a motion for a temporary restraining order, asking the court to order the immediate release of some of the records we had requested: documents showing the results of COVID-19 testing data of FCC Terre Haute prisoners and staff, not including personal identifying information, from July 1, 2020 to the present, and documents showing the results of any contact tracing conducted as a result of the known July COVID-19 exposure of BOP staff and death row prisoners, also not including personal identifying information.
The court held a telephonic temporary restraining order hearing on August 25, and denied our request for emergency relief. We then filed a motion for a preliminary injunction, which was granted in part, with the court ordering prompt production of records about Covid testing and contact-tracing and potential exposure of death-row inmates to Covid.
In spring 2021 BOP finished producing the records it was willing to produce, and the parties filed cross-motions for summary judgment about whether it was required to produce more. In November 2022, the Court upheld all but one of BOP’s reasons for withholding documents. We will now seek attorneys’ fees for our success at the preliminary injunction stage.
