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High court finds private health care contractor for state subject to public records law

VT Digger, Sept. 5, 2021.

The Vermont Supreme Court has ruled that a private contractor working for the state to provide health care to incarcerated individuals cannot skirt Vermont’s Public Records Act.

The decision overturns a lower court ruling and is the latest twist in a long-running battle by the Human Rights Defense Center. 

Since 2015 the nonprofit organization has been seeking five years of records from Correct Care Solutions related to legal claims against the company when it contracted with the Vermont Department of Corrections to provide health care in the state’s prisons.

The company balked at providing those documents, contending that the state’s Public Records Act doesn’t apply to private entities.

In a ruling released Friday, the Vermont Supreme Court sided with the Human Rights Defense Center, finding that the records law does apply to Correct Care Solutions, which has since merged with another company and is now called Wellpath.

The high court ruling sends the case back to the lower court.

Robert Appel, local counsel for the Human Rights Defense Center, said Sunday that while the high court decision determined that the health care contractor is subject to the Public Records Act, it stopped short of ruling that the records the Human Rights Defense Center are seeking are indeed public.

Instead, he said, that will be a matter for the lower court judge to decide, as well as if any exemptions to the state’s Public Records Act apply to those records.

Appel said he believes the records are public and that there are no exemptions that apply to them.

He called the high court’s ruling a win, but not a total victory since the matter will now be subject to further litigation at the lower court level.

Daniel Marshall, general counsel for the Human Rights Defense Center, said in a statement that he was “thrilled” with the decision. He said the ruling “vindicated the public’s right to know how its government is functioning, even when it hired a private company to do its job.”

Justin Barnard, a lawyer for Wellpath, could not be reached Sunday for comment.

The 12-page decision, authored for the court by Justice Harold Eaton, stated, “we find that Wellpath was an ‘instrumentality’ of the DOC during the contract period, and thus a ‘public agency’ subject to the disclosure obligations of the PRA.”

Under 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.

“Providing medical care to incarcerated persons is a quintessential governmental function,” the high court’s ruling stated. 

“Wellpath argues that healthcare services, being ‘widely delivered by private medical professionals outside of the correctional context,’ are ‘not uniquely governmental in nature,’” the decision added. The focus on the provision of health care generally rather than the provision of health care to incarcerated persons specifically is what raises the question of duty, the decision stated, and that, “It is precisely the delivery of those services within the correctional context which renders them uniquely governmental in nature.”

During oral arguments before the Vermont Supreme Court in June, Barnard argued that it was up to lawmakers, not judges, to decide to whom the law applies.

“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.”

Washington County Superior Court Judge Timothy Tomasi ruled in favor of Wellpath in 2019 decision, writing that including private contractors under the law could require them to publicly release confidential or proprietary information. Tomasi found that Wellpath was not the “functional equivalent” of a public agency.

That ruling essentially dismissed the case. 

The Washington, D.C.-based Human Rights Defense Center appealed the decision, 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.

Several organizations signed a brief in support of the organization’s position. Those groups included 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.

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