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ACLU Accepts $37,500 Settlement Over Redacted Records From New Mexico Prison Healthcare Provider

by Benjamin Tschirhart

Wexford Health Sources had been sued over 50 times in just four years when the state of New Mexico terminated the firm’s contract to provide healthcare to state prisons. That was in 2007. So the state chapter of the American Civil Liberties Union (ACLU) was understandably alarmed when, in 2019, the New Mexico Corrections Department (NMCD) announced that Wexford had “submitted the winning bid” for the agency’s new healthcare contract.

ACLU made a request for all records pertaining to the decision, including Wexford’s bid. NMCD denied the request, claiming the records were property of a private company and thus not subject to the state’s Inspection of Public Records Act. A NMCD spokeswoman stated in an email that the documents were “protected from public inspection by the Procurement Code.”

In response to a court ruling, Wexford released a limited number of documents which were heavily redacted, obscuring more than they showed. In a lawsuit then filed for the ACLU in the First Judicial District Court, attorneys Laura Schauer Ives and Adam C. Flores of Kennedy Kennedy & Ives, PC, in Santa Fe accused the state of “blithely ced[ing] its mandatory duties under the Inspection of Public Records Act to a private corporation.” This allowed a “massive state expenditure” to remain essentially secret. The suit named Andrew Kuhlmann and Brian Fitzgerald, the former and present NMCD custodians of public records. It requested the release of the public records, as well as attorney fees, damages, and costs.

In its brief, ACLU cited the Procurement Code — the same one defendants claimed allowed the documents to remain secret. The Code’s rules instruct that “the price of product afforded or the cost of services proposed may not be designated as confidential information.” Thus, the lawsuit alleged, “neither Wexford nor NMCD complied with the Procurement Code’s confidentiality procedures.”

 First filed in March 2020, the case was in litigation for two years before a $37,500 settlement was signed on July 28, 2022, including costs and attorney fees. “We certainly should not have had to go to court to get documents [regarding] private corporations our state is giving money to,” noted ACLU staff attorney Lalita Moskowitz, who said it “flies in the face of everything the Inspection of Public Records Act is supposed to do.”

NMCD had awarded Wexford a $246 million contract to provide medical care to prisoners and then allowed the company to decide which of its documents were public and which were not — including the bid itself. Wexford gave no reply to media questions. See: Am. Civil Liberties Union of N. Mex. v. Fitzgerald, 1st Jud. Dist. Ct. (Santa Fe Cty.), Case No. 101-CV-2020-00724. 

Additional source: Santa Fe New Mexican

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