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Illinois: Settlement in Suit Against Private Prison Medical Contractor is a Disclosable Public Record

The Illinois Department of Corrections (DOC) contracts with a private company, Wexford Health Sources, Inc., to provide medical and mental health care in state prisons. In 2012, prisoner Alfonso Franco died from cancer; three years later, Wexford settled a lawsuit filed by Franco’s estate, the terms of which were not disclosed due to a confidentiality agreement. 

The Illinois Times and one of the paper’s reporters, Bruce Rushton, filed a Freedom of Information Act (FOIA) request pursuant to 5 ILCS 140/7(2) with the DOC, seeking a copy of the settlement as part of an investigation into the medical treatment that Franco received. The DOC asked Wexford for a copy of the settlement and received a redacted version. 

The Times filed a public records suit against the DOC, seeking an unredacted copy of the settlement, which the DOC did not have. Wexford intervened in the case, arguing the DOC could not comply because the company had the unredacted settlement and did not have to disclose it. Wexford reasoned that as a private contractor, its services did not “directly relate” to a government function within the meaning of section 7(2) of Illinois’ FOIA statute. The circuit court ruled against the Times, which appealed. 

The appellate court reversed on January 8, 2019. Section 7(2) of the FOIA statute was enacted specifically to address the “growing concern related to the privatization of government responsibilities and its impact on the right of public information access and transparency.” Since Wexford had contracted with the DOC, a governmental body, to provide medical care to state prisoners, the settlement agreement was directly related to a government function within the meaning of section 7(2) of the statute.

The circuit court’s ruling was reversed with instructions to review the settlement in question to determine if the full document or only a redacted version should be released. See: Rushton v. Department of Corrections, 2019 IL App (4th) 180206 (IL App. 4 Dist. 2019).

According to a 405-page report entered in a class-action suit in Illinois federal district court in 2015, Wexford’s deficiencies in providing services at DOC facilities included delays in treatment, insufficient follow-up care and shoddy record-keeping. From 2004 to 2009, the report found, the company had settled 38 claims or lawsuits nationwide for a combined total of $3.1 million, not including jury awards. 


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