By Mark Johnson
Sep 12 2019, 5:02 PM
Does a private contractor working for the state have to disclose the same information to the public that a state agency must provide?
That was the question presented Thursday to Superior Court Judge Timothy Tomasi, who must decide whether the private company hired to provide health care services to Vermont inmates has to disclose what the Department of Corrections must share under the state’s Public Records Act.
An attorney for a human rights group argued that Correct Care Solutions (CCS) had “completely taken over” a constitutionally required government service from the DOC and should be subject to the same disclosure rules as the state agency it supplanted.
A lawyer for CCS (now called Wellpath) said the Legislature did not include private contractors in the Public Records Act (PRA) and that lawmakers, not a judge, should decide who the PRA applies to. The lawyer argued the public should be able to get information it seeks through requests to the state agency that has contracted with the private firm. Expanding the PRA to include private contractors, he said, could require them to make public information that is confidential or proprietary.
“They are asking for material that Wellpath maintains in confidence that’s not required by law to turn over to citizens,” Justin Barnard, a lawyer with Dinse, said after the hearing.
Human Rights Defense Center (HRDC) requested in 2017 that CCS turn over information on any claims or lawsuits in which payments were made while providing medical services to Vermont inmates. The group wanted to include the lawsuit information in two magazines the center distributes, Prison Legal News and Criminal Legal News, which go largely to inmates.
CCS served Vermont inmates between 2010 and 2015. In 2018, CCS merged with a California company and was renamed Wellpath.
“Until recently, medical care of inmates was provided by state employees. So by contracting out they shield public scrutiny? That doesn’t feel right to me,” said Robert Appel, an attorney and former head of the Vermont Human Rights Commission, after the hearing.
HRDC attorney Dan Marshall argued in court papers that CCS had “stood in the shoes” of the corrections department when it provided medical services and should have to adhere to the PRA.
The Public Records Act permits individuals to “inspect or copy any public record of a public agency” and allows for financial penalties on an agency for non-compliance, including having the agency cover the legal costs of the requestors.
Barnard argued before the judge that to apply the PRA to private contractors would be unfair because it could subject them to fines and require they follow the same rules state government must use on document retention and destruction.
Judge Tomasi made no decision. He questioned the CCS lawyer whether there could be “no set of entanglements and involvement and oversight that could ever bring a private entity under the PRA?” Barnard said there could be an entity “so closely intertwined” with a government agency where the PRA could apply, but said that was not the case with CCS.
“There’s no gray area here,” Barnard told the judge. “Wellpath is a private corporation.”
Barnard noted in court documents that the health care provider should not be considered a replacement for DOC because the private company did not have the authority to set policy or “exercise the powers of government.”
Barnard noted to the judge that the Vermont Legislature, despite reviewing the PRA, had not included private contractors in the definitions of those groups the statute applies to.
After the hearing, Appel and Marshall said a court had found the Corrections Corp. of America, a private company that runs jails that Vermont has sent inmates to, was subject to the Public Records Act.
Tomasi said he was “concerned” the Vermont Attorney General’s Office had not weighed in on the case, since it could affect other state agencies the AG’s office is charged to defend that also use private contractors.
The Attorney General’s Office was unable to provide a comment on Thursday.
Earlier this year, the Vermont Human Rights Commission accused the current prison health care provider, Centurion, of discriminating against an inmate by taking almost two years to approve a new hearing test and replace her hearing aids, and then providing her only one.