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HRDC v. Correct Care Solutions, LLC, VT, Opinion, Public Records, 2021

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VT 63

SEP 0 3.



Human Rights Defense Center

Correct Care Solutions, LLC and
Correctional Care Solutions Group Holdings, LLC



Superior Court, Washington Unit,

Civil Division

DOCKET NO. 51-2-19 Wncv

In the above-entitled cause, the Clerk will enter:

Reversed and remanded fer proceedings consistent with this opinion.


arold E. Eato , Jr., Associate Justice


Eaul L. éeiber, :lhie‘f Justice

égen R.éarroll, Associate Justice




n, Associate Justice

NOTICE: This opinion is subject to motions for reargurnent under V.R.A.P. 4O as well as formal

revision before publication in the Vermont Reports. Readers are
requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont. gov or by mail at: Vermont
Supreme Court, 109‘
State Street, Montpelier, Vermont 05609-0801 , of any errors in order that corrections
may be made
before‘this opinion goes to press.



VT 63


SEP 0 3

No. 2020-308



Human Rights Defense Center

Supreme Court

On Appeal from
Superior Court, Washington Unit,


Civil Division
Correct Care Solutions, LLC and
Correctional Care Solutions Group Holdings,

June Term, 2021


Robert R. Bent, J.
Robert Appel, Charlotte, and Daniel Marshall, General Counsel &
Litigation Director,
Human Rights Defense Center,

Justin B. Barnard of DINSE, Burlington, for Defendants-Appellees.

Lia Ernst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Amici Curiae
Secretary of State James Condos, Auditor Doug Hoffer, Prisoners’ Rights Ofce, New England
First Amendment AssOciation, and the American Civil Liberties Union of Vermont.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ.




Between 2010 and 2015, pursuant to a contract with the Vermont

Department of Corrections (DOC), ‘Wellpath


assumed responsibility for providing medical

care to every person in state custody within Vermont. Under the

Records Act

(PRA), plaintiff Human Rights Defense Center (HRDC)

of Vermont’s‘Public

requested om


any records relating to legal actions and settlements arising from this care. Wellpath declined to

the requested records, arguing that, as a private
contractor, it was not subj ect to the

At the time, Wellpath was doing business as Correct Care Solutions,

naming convention used in its brief.

LLC; we


adopt the

disclosure requirements. HRDC brought the instant suit, and the trial court entered judgnent for

Wellpath. We reverse and remand.

The relevant facts are undisputed. Wellpath is a private company which contracts

with government agencies in multiple states to provide medical care in prisons and jails. In 2009,
the Vermont

DOC sought bids from medical contractors capable of “operating

a comprehensive

health[]care progam” for incarcerated individuals “on behalf of the State.” The DOC selected

Wellpath’s bid, and the two entities entered a contract for such services beginning in 201 0.


During the ve-year

period that the contract was in place, Wellpath was responsible

for delivering or procuring all medical care necessary for persons incarCerated in

facilities. This comprehensive range of services encompassed, inter alia, medical
primary care, inrmary

services, dental. care, dietary management, obstetrics and gynecology,

prOsthetics, optometry, substance-abuse treatment, chronic-disease management, and provision


mental-health services. In exchange for assuming these responsibilities, the DOC paid
more than $91 million over the contract period.

At the time, Wellpath’s only business in Vermont

was pursuant to this contract with the DOC.


Under the contract, Wellpath’s policies and procedures were both “subordinate to”

those of the DOC and subject to the DOC’s review to ensure compliance with relevant federal and

laws and regulations. The DOC was to “monitor[]” Wellpath’s ongoing compliance through

scheduled and unscheduled audits. The contract contained robust reporting requirements and

detailed penalty provisions.

For example, Wellpath’s failure to administer a routine

pharmaceutical within two hours of the time it was scheduled to be dispensed could result in a ne

of up to $500 for a single occurrence.


HRDC, the plaintiff in this case, is

a nonprot

organization focusing on public

education and advocacy related to the criminal-justice system.

disclosure obligations under the PRA,


In December 2015, citing

sent Wellpath arequest for public records relating




claims; lawsuits, or settlements arising from Wellpath’s provision of services under its contract

With the DOC. Wellpath declined to furnish these
documents, taking the position that, as a private

entity, it was not subj ect to the PRA. HRDC sent Wellpath a second records request in December

201 7, seeking substantially similar disclosures.
Wellpath did not respond.



then led

the PRA. The parties led

this action in the trial court seeking to compel disclosure under

cross-motions for summary judgment.

HRDC argued that, by providing

healthcare to inmates on behalf of the state, Wellpath
became the “functional equivalent” of a

public agency, and was therefore—like the DOC—subjectto the PRA. Wellpath countered that
the plain language

of the PRA neither implicated private entities nor supported application of the

functional-equivalency analysis, a test applied in other jurisdictions to determine whether an entity
is subject to their public-records acts
because its relationship with the government was such that
the entity became the “functional equivalent” of a
government agency.

See, e.g., Washington

Research Project, Inc. v. Den’t ofHealth, Educ. & Welfare, 504 F.2d
238, 245-48 (D.C. Cir. 1974).
Thereunder, courts consider four nonexclusive factors: (1) whether, and to what'extent, the
performs a governmental or public function; (2) the level of government funding of the

(3) the extent of government involvement with, regulation of, or control over the entity; and
(4) whether the entity was created by the government. Memphis Publ’g Co. v. Cherokee Children

& Famin Servs., Inc.,

87 S.W.3d 67, 79 (Tenn. 2002).


the Tennessee Supreme Court has

explained, because the analysis is intended “to ensure that a governmental agency cannot,

intentionally or unintentionally, avoid its disclosure obligations under the [public-records act] by
contractually delegating its responsibilities to a private entity,” the rst
as the “Cornerstone”

of the test.


The trial court applied the functional-equivalency analysis

and held that Wellpath was not the functional

of healthcare is not

factor is generally viewed

a government function.

of a public agency because the provision

On this basis, it granted summary judgment for




HRDC appeals, maintaining


that although the trial court correctly applied the

test to determine whether Wellpath was subject to the

concluding that Wellpath was not the

PRA, it

erred in

“functional equivalent” ofthe DOC thereunder and therefore

fell outside the purview of the Act. Wellpath counters that the trial court reached the correct
conclusion using the wrong reasoning: the functional-equivalency test is not
appropriately applied
under the


but nor does the

PRA’s plain language encompass private entities like Wellpath.

We do not reach the question of whether the
functional-equivalency test applies to the
determination of whether an entity is a “public agency” pursuant to the

unnecessary to our conclusion; rather, we nd


because it is

that Wellpath was an “instrumentality” of the


during the contract period, and thus a “public agency” subject to the disclosure obligations of the



We review a trial court’s summary-judgment ruling de novo,
applying the same

standard considered below: judgment is entered in the
there is no genuine dispute

v. State, 2021




moving party’s favor where it can show that

of material fact and judgment is appropriate as a matter of law.


_ Vt. _ A.3d _;

see also


V.R.C.P. 56(a). The only issue

presented in this case is a question of law—whether the term “public agency,” as used in thePRA,

encompassed Wellpath during the ve-year

Bd. v. -Washington S. Educ. Ass’n, 2019

period it contracted with the state. See Northeld

VT 26,


13, 210


Vt. 15, 210 A.3d 460 (explaining that

of statutory interpretation present questions of law).


In interpreting a statute, our primary aim

“Legislature’s intent. Flint v. Dep’t of Labor, 2017


to discern and then implement the

VT 89, 1] 5, 205 Vt. 558,

begin by looking to the plain meaning ofthe words the Legislature used.


177'A.3d 1080. We
Where that language

is clear and unambiguous,- this is also where our inquiry ends: we enforce the enactment
to those terms. IQ. Only where the Legislature’s intent is unclear on the face
ofthe statute do we

resort to other tools

of statutory construction.


Accordingly, we turn





the operative language

of the Act. Under the PRA,

“[a]ny person may inspect or copy any public record of a public agency.”

Act denes



§ 316(a). The

“public agency” as “any agency, board, department, commission, committee, branch,

instrumentality, or authority of the State or any agency, board, committee, department, branch,
instrumentality, commission, or authority of any political subdivision of the State.”


§ 3 17(a)(2).

We are guided in our interpretation of this language by the
Legislature’s express


statement of the policy which undergirds the Act. See State v. Berard 2019

VT 65,


12, n. 1 , 211

Vt. 39, 220 A.3d 759 (noting that plain language 0f statute must be considered “in the context and

of the statute as a whole, rather than in isolation” (quotations omitted». In few statutes

is the Legislature’s intent set forth so explicitly as it is here. See Caledonian Record Publ’g Co.
V. Walton 154
the statement



15, 20, 573

A.2d 296, 299 (1990) (commencing interpretation of PM “with

of legislative intent in the Act”).

The PRA’s policy statement provides that

of government are trustees and servants of the people and it is in the public interest to

enable any person to review and criticize their decisions even though such examination may cause

inconvenience or embarrassment.”

l V.S.A.

§ 315(a). It further directs that the provisions

PRA “be liberally construed to implement this policy.”


MoreoVer, the



of the


constitutional predicate in Chapter I, Article 6 of the

Vermont Constitution, in which the Framers recognized “[t]hat all power being originally inherent
in and co[n]sequently derived om

the people, therefore, all ofcers

of government

. . .

are their

trustees and servants; and at all times, in a legal way, aCcountable to them.” Vt. Const. ch. I, art.

6; see also Galedonian Record Publ’g Co.. 154 Vt. at 21, 573 A.2d at 299-300 (“The generation
that made the nation thought secrecy in government one

of the instruments of Old World tyranny

and committed itself to the principle that a democracy cannot function unless the people are
permitted to know what their government is up to.” (quoting U.S. Dep’t of Justice v. Reporters

Comm. for Freedom ofthe Press 489 U.S. 749, 772-73
(1 989))). Thus, “[W]e do hot overstate the
case in saying that open access to governmental records is a fundamental

of our

society.” Shlanskv V; Citv of Burlitgton. 2010 VT 90, 1] 12, 188 Vt. 470, 13 A.3d 1075.

With this understanding of the Legislature’s intent, we consider the


question in this appeal: whether Wellpath is a “public agency” within the
meaning of. the

HRDC contends


that this. inquiry is appropriately resolved with reference to the functional-

equivalency test. However, this Court'has yet to consider whether the
analysis has any application under Vermont’s PRA, and'we do not reach that
Courts began applying the functional-equivalency test based on the recOgnition that
“any general

definition” of the term “agency”


“of only limited utility to

a court confronted with one

of the

myriad organizational arrangements for getting the business of the government done.”

washington Research Project, Inc., 504 F.2d at 245-46. However, the denition
forth in Vermont’s

PRA is not so general as to have limited utility under the circumstances of this

case. We do not consider whether Wellpath was the “functional

because we conclude that it was an


§ 3 17(a)(2). Therefore, it


of “agency” set

of a public agency

of the DOC during the contract period. See

m a “public agency” as that term is dened

in the PRA. .

Our conclusion that Wellpath was an
instrumentality of the DOC is based on the

plain meaning of that term, our consideration of all material aspects of the
relationship between

Wellpath and the DOC, the fundamentally g0vernmental nature of the responsibility Wellpath
assumed on behalf of the state, and the liberal construction the
Legislature directs us to accord the

PRA. Two other jurisdictions, Maryland and New Jersey, have engaged in similar
Under Maryland’s public-records act, a record was
subj ect to disclosure where it was either made
or “received

. . .

in connection with the transaction

ofpublic business” “by a unit or instrumentali

of the State government or of a political subdivision.” Md. Code
Ann., State Gov’t

§ 10-611

(2004) (emphasis added). Tasked with determining whether the City of Baltimore Development

Corporation was an “instrumentality” of Baltimore City, the state’s highest court identied


following relevant considerations: (1) the plain meaning of the term “instrumentality”; (2) that—
consistent with that plain meaning—the entity in question was established and maintained “as an
agent or tool of Baltimore City in order to accomplish the City’s ends or purposes”; (3) an

examination of “all aspects of the relationship between the entity and the state” to determine
whether the entity was “subject to substantial control by the
City because of how closely the two

[were] intertwined”; and (4) the legislature’s intent, in passing the state records act, that its
constituents “be accorded wide-ranging access to public information
concerning the operation of

their governmen .” City of Baltimore Dev. Corn. v. Carmel Realty Assocs., 910 A.2d
406, 42628 (Md. 2006) (quotation omitted).



Similarly, New Jersey’s public-records act applies to “public agencies,” a term

to include an' “instrumentality” created by a political subdivision.

The Supreme Court of New Jersey has held that a nonprot

N.J.S.A. 47:1A-1.1.

lobbying organiZation representing

local government interests was just suchan instrumentality. Fair Share Hous. Ctr., Inc. v. N.J.
State Leagu_e of Municipalities, 25 A.3d 1063, 1071-72

was undened,


201 1). Because “instrumentality”

the court likewise looked to the dictionary to ascertain its
plain meaning. See .

at 1071. It then analyzed multiple facets

of the entity’s relationship

to the state and determined

that it was “achieving an end and providing a function on behalfof all
[the state’s] municipalities,”
and, as a result, was an “instrumentality”

of a political subdivision of the

through inclusion of “instrumentality” in denition,

at all relevant aspects

(holding that

plain language of public-records act “places

the [entity] squarely within the term
‘public agency’-”).


state. .

We apply a similar conceptual

of the relationship between the entity and the state—-

and arrive at a corollary conclusion.


We begin by considering the plain meaning of the term “instrumentality.” Where,

as here, statutory language is undened,

we accord the term its “plain and ordinary meaning, which

may be obtained by resorting to dictionary denitions.”

Comm’n, 2018




KhaInnei v. Bmggon

Pub. Works

14, 206 ”Vt. 550, 183 A.3d 1157 (quotation oniitted).

Black’s Law

Dictionary indicates that an instrumentality is either “[a] thing used to achieve an end or purpose,”
or “[a] means or agency through which a function of another entity is accomplished, such as a

branch of a governing body.” nstrumentalig', Black’s Law Dictionary (1 1th ed. 2019). Similarly,
the Merriam-Webster Dictionary tells us that the legal denition

through which an end is achieved or occurs’; or “something‘that

of instrumentality is “something

as an intermediary or agent

through which one or more functions of a larger controlling entity are carried out,” “a part or

branch especially of a governing body.” Instrumentality, Merriam-Webster 0nline





It is undisputed here that, between 2010 and 2015, Wellpath was the sole means

through which the DOC carried out the inction

ofproviding medical care to incarcerated persons.

The question of whether this function is fundamentally governmental in nature isimportant to our
analysis for the same reason that courts applying the functional-equivalency test consider it the
“cornerstone” of their inquiry: because an interpretation of our public-records act which allows a

governmental agency to—intentionally or unintentionally—insulate records relating to the
performance of its responsibilities from disclosure by delegating those responsibilities to a private

entity would defeat the purpose of the Act.

See Memphis Publ’g Co., 87 S.W.3d at 79 (so

concluding in light of duty “to cons-true the Tennessee Public Records Act liberally in favor of the

possible public access to public records” (quotation omitted»; see also, e.g., Trombley v.

Bellows Falls Union High sch. Dist. No. 27, 160 Vt. 101, 108, 624 A.2d 857, 862 (1993) (rejecting
reading of

PRA exemption which, although “possible,” would

documents included in employee’s disciplinary le

authorize nondisclosure


as inconsistent with Legislative mandate to

PRA liberally in favor of disclosure, noting it would “allbw agencies to avoid disclosure

by the simple act ofplécing a document in a personnel or similar le”).
apply the functional-equivalency test here to determine

of a public agency, we


Thus, although we do not

if Wellpath was the functional equivalent

that its primary focus on whether the undertaking in question

fundamentally governmental in nature



hand-in-glove with our inquiry into whether a private

entity acted as an “instrumentality” of the state?


Providing mediCal care to incarcerated persons is a quintessential governmental

function. Wellpath argues that healthcare services, being-“widely delivered by private medical
professiOnals outside

of the correctional context,” are “not uniquely governmental in nature.” But

in focusing on the provision of healthcare generally, rather than the provision of healthcare to
incarcerated persons specically,

Wellpath elides the dependent relationship giving rise to the duty

in question here. It is precisely the delivery of those services within the correctional context which
renders them uniquely governmental in nature. Indeed, the Legislature has
required that the DOC

“provide health care for inmates in accordance with the prevailing medical standards.” 28


801(a). And where the DOC contracts with a provider for the delivery of such services, the

contract must “establish policies and procedures for continuation and provision of medication at
the time

of admission and thereafter,

protect the mental and physical health


Even' more signicant

as determined

of inmates.”

by an appropriate evaluation, which will

ILL § ‘801 (f).

to our analysis is our recognition that the provision

healthcare to incarcerated persons is one of those rare instances in which the

upon the government an afrmative


Constitution imposes

duty to care for and protect individuals.

DeShanev v.

Winnebago .Ctv. Dept. of Soc. Servs., 489 U.S. 189, 198 (1989). Where the government takes a
person into its custody, the Eighth Amendment obligates it to provide medical care for that person.


Indeed, because determining whether. an entity is an instrumentality requires an
examination of all relevant aspects of its relationship to the state, the factors considered as
part of
the functional-equivalency test, although not independently dispositive,
may be considered as part
of the instrumentality analysis.

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (identifying as basis for this holding
longrecognized “common-law View that it is but just that the public be required to care for the prisoner,
who cannot by reason of the deprivation of his liberty, care for himself”
(alteration omitted)
(quotation omitted». Deliberate indifference to an incarcerated person’s “serious medical needs”

is proscribed, and “[t]his is true whether the indifference is manifested
by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to

medical care or intentionally interfering with the treatment once prescribed.”- IQ. at 104-05
(footnotes omitted). Thus, courts recognize that “[w]hen a private entity

. . .

contracts with a

[government entity] to provide medical services to inmates, it performs'a function traditionally

within the exclusive prerogative ofthe state.” Buckner v. Toro, 1 l6 F.3d 450, 452 1th Cir.

(per curiam).


Finally, the contract language belies Wellpath’s assertion that it cannot be

considered an “instrumentality” because it did not exercise the authority of the state to administer

government policy. The DOC craed,

in minute detail, policies governing
when, Whether, and

how Wellpath was to deliver services to persons in custody. Wellpath necessarily exercised the
authority of the state in administering these policies on'the

DOC’s behalf. Indeed, absent such

authority, it is impossible to imagine how Wellpath could have provided care within facilities
owned and operated by the DOC to persons in the


DOC’S exclusive custody.

Thus,_we conclude that the language of the PRA is unambiguous: where theistate

contracts with a private entity to discharge the "entirety


a fundamental and uniquely

governmental obligation owed to its citizens, that entity acts as an “instrumentality” of the State.3


Because we conclude that the relevant statutory language is unambiguous, we need not
address Wellpath’s contention that two canons of construction auger in favor of the conclusion
that public entities are not encompassed within the PRA’ s denition of
“public agency.” See
2017 VT 89, 5. However, because these arguments may be briey
dispatched, we pause here to
do so. Wellpath rst points to the exemption to the PRA’s disclosure
requirements at 1 V.S.A.
§.317(c)(42), which applies to information which could be used to identify a whistleblower
alleging misconduct or illegality on the part of “a public agency, a public employee or ofcial, or



Where the obligation at hand is less
weighty, and the delegation less complete, a differentresult

may li'e.

But because here, for ve

years, Wellpath was the sole means through which the

constitutional imperative that the DOC provide healthcare to those it incarcerates was carried out,

Wellpath became an “instrumentality” of the state, and was thus subject to the disclosure
obligations of the PRA.

Wellpath also argues that construing the PM-to extend to entities like itself is the


role ofthe'Legislature, and not the Court, because it would necessitate changes
throughout the Act

“to adapt and rationalize its procedures and clarify their application to private parties.” It
several incongruencies which result from construing “instrurnentality” to include
Wellpath: the

Act indicates that the fee for obtaining a copy of a public record be set by the Secretary of State as
to state agencies, and by the governing legislative body after
public hearing for political

subdivisions, but includes no such requirement for privateentities, see

Act provides for appeal to “the head of the agency,” see .




§ 316(d), (e); the

318(c)(1); the record schedules

pursuant to which entities may diSCard records offer no guidance to private entities, see .

§.317a(b); and, nally,


PRA does not include provisions requiring that public entities receive

a person providing goods or services to a public agency under contract.”
(emphasis added). It
argues that if “persons or entities” or “companies” providing goods or services to an agency under
contract were included in the denition of “public agency,” the latter portion of § 3 1
7(c)(42) would
be unnecessary. Although it is true that we presume, in interpreting statutes, that the
inserts language advisedly and does not intend to create surplusage, see Doncaster V.
Hane, 2020

VT 22,


229 A.3d 1026, the words “entities” or “companies” do not appear in the
statute—in other words, they were inserted by Wellpath, not the Legislature. See 1 V.S.A.
§ 3 1 7(c)(42). If we were to apply this canon, then, construing the term “public agency” to include
Wellpath as an instrumentality of the state Would not render any of the language of § 317(c)(42)
surplusage. Second, Wellpath invokes noscitur a sociis—a canon meaning “it is known by its
associates”—pursuant to which courts are counseled to seek the meaning of an undened term in
light of what follows or precedes it. Vt. Human Rights Comm’n v. Vt. Agmcv of Transn, 2012
VT 45, 1[ 5, 191 Vt. 485, 49 A.3d 149. It arguesthat because “instrumentality” and “authority”
appear in a list of entities which are subordinate bodies of state government,~they must be'as well.
Even if we were to invoke this canon here, we do not understand it to require that, wherever a
statutory list exists and a certain designation can be applied to the majority of the terms within it,
all other terms therein must be understood as subject to the same designation, even where their
ordinary meaning is not thus conned.
1 1

notice that, in certain circumstances, they may" be
subject to its provisions. These concerns are

well-taken, and we do not disagree that some incongruencies or administrative difculties
inhere as a result of the


Act’s application to instrumentalities like Wellpath. However,

[against the plain language of the statute and the Legislature’s forcefully expressed intent that it be
interpreted in favor

of disclosure, these concerns must yield. It is for the
Legislature to resolve

such nuances; it is for this Court to interpret the
provisions of theAct on appeal in this case in a

way that upholds, rather than defeats, the PRA’s plain language and the overriding goal of
govemment—a goal that is nothing less than foundational to our republic. In the words of


Liberty cannot be preserved without a general knowledge among
the people, who have a right . . . and a desire to know; but besides
this, they have a right, an independent right, an indisputable,
unalienable, indefeasible, divine right to that most dreaded and
envied kind of knowledge, Imean of the characters and conduct of
their rulers.

J. Adams, A Dissertation on Canon and Feudal Law (1765).



The trial court erred in granting summary
judgment for Wellpath because,

considering all relevant factors, Wellpath was an instrumentality of the state during the contract
period, and thus a “public agency” as that term is dened

in the PRA. Because of the trial court’s

disposition below, it did not consider whether the requested documents were
“public records”

within the meaning of the PRA or whether any

statutory exemption applied thereto. We therefore

leave these questions for its consideration upon remand.
Reversed and remanded for proceedings consistent with this


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