Seventh Circuit upends inmate’s fight for public information access

CHICAGO (CN) — A federal inmate's long legal quest for access to the U.S. Federal Register hit another major hurdle Tuesday, when a Seventh Circuit panel unanimously affirmed a lower court ruling against him.

The Federal Register is a publicly-available daily journal of the U.S. government which details proposed rules, committee meetings, executive orders and other public developments.

But the U.S. Bureau of Prison rules curtail inmates' access to it: only PDFs of final rules, proposed rules, interim rules and certain notices get posted to an "electronic bulletin board" at federal prisons' law libraries — and only when the relevant documents pertain to the Prison Bureau.

The plaintiff inmate, Robert Decker, has sought access to the Federal Register for years. He sued the Bureau of Prisons, Justice Department and U.S. Attorney General's Office from southwest Indiana's Terre Haute federal prison in January 2020, claiming the rules violated he and other prisoners' First, Fifth and Fourteenth Amendment rights by denying them access to public government documents.

"How is one supposed to know what laws are enacted throughout the entire [United States?] ... The prison population is being placed into the dark by not supplying the Federal Registry," Decker wrote in his 2020 pro se complaint.

U.S. District Judge J. Phil Gilbert, George H.W. Bush appointee, thought otherwise. He tossed Decker's claims that April, calling them "frivolous and meritless" because while inmates may not have access to the full Federal Register every day, federal prisons do maintain current electronic copies of the U.S. Code of Federal Regulations.

Decker appealed, with his court-appointed attorney H. Hunter Bruton presenting oral arguments on his behalf this past May.

Bruton had argued that downloading the Federal Register for inmates' use every day was would require little effort from prison employees, and that the government was simply refusing to do so.

"Defendants do not deny they could download PDFs of the full Federal Register with only three clicks, for free," Bruton said.

Justice Department attorney Caroline Tan rebutted that the very nature of incarceration imposes limits on inmates' constitutional rights, and that Decker's desire for the Federal Register didn't make for a violation requiring prison resources to correct.

On Tuesday, the three-judge appellate panel hearing the case agreed more with Tan and Gilbert, unanimously finding the Bureau of Prisons' policy served a legitimate interest in conserving prison resources, "and so did not violate the First Amendment."

The court ruled similarly on Decker's proposed compromise of having prisons provide Federal Register access on a weekly or bi-weekly basis.

"Here, the Bureau Of Prisons has made the reasonable managerial decision to save resources by electronically providing only limited administrative documents that directly impact many prisoners," U.S. Circuit Judge Michael Scudder, a Donald Trump appointee, wrote in the panel's unanimous 17-page opinion.

Tan, in May, also raised the specter of inmates using a sympathetic ruling in this case as precedent to demand further access to public information, "such as proposed bills in Congress so that he can submit comments to his congressman." The warning landed with the appellate panel, and they reiterated their concern over the possibility in their Tuesday ruling.

"If we find in favor of Decker today, there is a unique likelihood that this case would lead to a cascade of similar requests that would, in the aggregate, place an inordinate burden on the prison system," Scudder wrote. "Such a burden would be particularly difficult to justify given that [prison] law libraries must already provide documents 'pertaining to the Bureau.'"

As a separate issue, the appellate panel also affirmed the lower court's decision not to recruit an attorney to aid Decker earlier in the case's history. Both the federal and the appeals court found that, despite the challenges prison conditions placed on Decker, he had managed to competently represent himself up to the point of appeal.

"Informed as it was by a careful consideration of the circumstances that Decker faced in his self-representation, the district court’s order did not constitute an abuse of discretion," Scudder wrote.

Scudder was joined on the appellate panel by U.S. District Judges Amy St. Eve and Thomas Kirsch II, both Donald Trump appointees.

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