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Public or secret? High court weighs records of prison health care contractor

VT Digger, June 22, 2021.

The Vermont Supreme Court will decide whether a private contractor working for the state has to abide by the same rules as a state agency in providing information to the public. 

The high court heard arguments during a video hearing Tuesday. After presentations by the disputing attorneys, the justices took the matter under advisement and will issue a written opinion, which could take several months.

At issue is whether a private company contracted by the state to provide health care to Vermont prisoners has to publicly release information related to legal claims against it.

Since 2017, the Human Rights Defense Center has been seeking the records from Correct Care Solutions between 2010 and 2015, while the company held the contract to provide health care for incarcerated individuals in Vermont.

“In this case, your honors, you will decide whether the citizens of Vermont have the right to know how well or how poorly the government has spent $90 million of taxpayer money,” Daniel Marshall, an attorney for the Human Rights Defense Center, told the justices.

Marshall said that’s how much the state paid under the contract with Correct Care Solutions, which has since merged with another company and is now called Wellpath.

“Despite the fact that Wellpath took over this mandatory governmental function mandated by both the Constitution and Vermont statute, and despite the Legislature’s clear intent in the Public Records Act,” Marshall told the justices, “Wellpath is arguing that it is not subject to Vermont’s public records law.” 

Justin Barnard, a lawyer for Wellpath, countered that lawmakers, not judges, should decide who the law applies to. 

“This is fundamentally a question that the Legislature has to take up,” he said. “I don’t think it is dodging an obligation of the court to say that the statute, as written, applies to public agencies.”

He added, “It is a complicated undertaking to go from that to determining how it should apply to private entities, when the very structure of the statute, I think, is clearly intended to apply to governmental entities.”

According to the Public Records Act, people are permitted to inspect or copy any public record of a public agency. The act also allows financial penalties if an agency does not comply, including payment of the requesters’ legal fees.

Barnard argued Tuesday that applying the act to private contractors would be unfair. It could subject them to fines and require them to follow the same rules that the state government must use on document retention and destruction, he said.

In a 2019 decision, Washington County Superior Court Judge Timothy Tomasi sided with Wellpath. The judge said that including private contractors under the law could require them to publicly release confidential or proprietary information. That decision essentially dismissed the case. 

The Human Rights Defense Center appealed that ruling, leading to Tuesday’s hearing before the Vermont Supreme Court. 

Several organizations signed onto a brief in support of the organization’s position, including the Vermont chapter of the American Civil Liberties Union, the Vermont Prisoners’ Rights Office, the New England First Amendment Coalition, Vermont Secretary of State Jim Condos and State Auditor Doug Hoffer.

During the attorneys’ oral arguments Tuesday, justices frequently interrupted to ask questions.

“It’s a little unclear to me in your briefing here,” Justice Harold Eaton told Marshall, “whether you’re arguing that Wellpath is an instrumentality of a public agency, or whether you’re arguing that they are the functional equivalent of a public agency, or are you arguing both?”

“We think the result is the same either way,” Marshall replied. 

Justice William Cohen then jumped in.

“You’re looking for records regarding incidents where there’s been a complaint, settlement, some type of remedial provision involving the care that was provided, that’s the limit of your request is it not?” Cohen said to Marshall. 

“You’re right,” Marshall responded. “What we are requesting, as your honor said, is instances where Wellpath — there was either a claim or a lawsuit, and Wellpath actually had to pay out more than $1,000.”

Eaton then asked Marshall if he believed that, had the state corrections department provided the health care services itself, those records would be public. 

“You are absolutely correct, your honor,” Marshall said. “If the state had elected not to contract with Wellpath, but instead to have provided these services themselves, then those records would be public records.”

Barnard, Wellpath’s attorney, told the justices that a request for public records could be made to the state agency that had contracted out a service. 

“If someone has a question about the contracting activities of a public agency and its contractor, he can submit a request to the contracting agency,” Barnard said. “The purpose of the Public Records Act is to allow citizens to review and criticize the actions and decisions of officers of the government. That function still stands.”

Marshall, attorney for the Human Rights Defense Center, responded that asking the corrections department for the records would not work.

“These particular records are not in the possession of the Vermont Department of Corrections,” he said. “For that reason, going to DOC to get these records is just not viable.” 

The corrections department is not a party to the lawsuit and Rachel Feldman, a corrections department spokesperson, said Tuesday that it’s the department’s policy to decline comment on pending litigation. 

The Washington, D.C.-based Human Rights Defense Center has been seeking the information about claims against Wellpath to publish in Prison Legal News and Criminal Legal News, two publications it distributes mainly to incarcerated individuals.

The Human Rights Defense Center’s website says it is a nonprofit organization focused on “public education, prisoner education, and outreach in support of the rights of prisoners.”

Similar issues have been raised previously involving private contractors and public records. In a 2010 case, a different medical contractor for the corrections department voluntarily turned over the records before the court could rule.

In another case, filed in 2013, the court ordered Corrections Corporation of America to disclose the requested records.



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