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Vermont Supreme Court sides with transparency

Rutland Herald (VT), Sept. 6, 2021.

MONTPELIER — The Vermont Supreme Court has overturned a lower court ruling that allowed a private contractor hired to handle certain public work on behalf of state government to ignore requests under the Vermont Public Records Act.

The high court ruling comes as the private for-profit health care company that contracted to provide comprehensive medical services for Vermont prisons balked at sharing public information about the lawsuits and judgments the business had faced on behalf of local inmates.

The Vermont Department of Corrections contracted with Correct Care Solutions LLC and Correct Care Solutions Group Holdings LLC, doing business as Wellpath from 2010 to 2015 for all inmates in state custody. The state paid more than $91 million over five years to Wellpath.

“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 defined by the Public Records Act, the high court noted.

The Human Rights Defense Center filed a Public Records request in December 2015 with Wellpath seeking any records relating to legal claims and lawsuits, along with resolutions stemming from the care provided.

The Wellpath refused the records request on the grounds it was a private contractor and believed it was not subject to disclosure requirements under Vermont’s Public Records Act. HRDC filed a second request in December 2017 seeking much of the same information and the contracts with the state of Vermont, but Wellpath ignored that letter, court records show. HRDC sued.

Vermont Superior Court Judge Robert Bent granted summary judgment to Wellpath in November 2020 in a six-page decision issued in Washington County. He rejected the HRDC claim that Wellpath was the “functional equivalent” of a public agency.

Now the Supreme Court has ordered the records decision reversed. The justices also ordered the case sent back to Washington County to reconsider the decision based on their legal ruling.

Associate Justice Harold “Duke” Eaton wrote that because of the summary judgment ruling, Judge Bent never considered whether the documents requested were actually “public records” under Vermont law and whether they might be subject to a possible exemption.

“We therefore leave these questions for its consideration upon remand,” wrote Eaton in the 12-page decision.

Eaton was joined in the 4-0 decision by Chief Justice Paul L. Reiber, and Associate Justices Karen R. Carroll and William D. Cohen.

The local lead attorney Robert Appel, who helped represent HRDC, said Monday he is pleased the court refused to accept Wellpath’s assertion that it was not required to comply with the Public Records Act even though it received more than $91 million from Vermont taxpayers.

“We are quite pleased that the decision reaffirmed the public’s right to discover how its dollars are being spent on fundamental governmental services, even if such services are supplied by a private for-profit corporation,” Appel said.

“Had the Court not clearly expressed this obligation of contractors to comply with the PRA, Vermonters would be kept in the dark about such expenditures,” noted Appel of East Montpelier.

HRDC is seeking immediate release of the documents originally sought in 2015 and those in 2017, as well as legal fees and costs, according to Appel, who worked on the case with HRDC General Counsel Daniel Marshall.

The Vermont case has considerable statewide interest and implications. Among those offering support on appeal to HRDC in the legal filings were Secretary of State Jim Condos and State Auditor Doug Hoffer and the American Civil Liberties Union.

There are other organizations serving as instrumentalities of the state that are voluntarily agreeing to follow Vermont’s Open Government Laws, including the Public Records Act and the Open Meeting Law.

The Vermont Principals’ Association agreed to follow both laws after then-Gov. Hoard Dean proposed bringing the work of that association, including overseeing interscholastic sports, under the Department of Education. The state department expressed no interest in adding that work and a Lamoille County legislator then suggested just changing the proposed legislation that the VPA would have to follow both transparency laws. The VPA agreed on its own in writing to be transparent without the bill becoming law.

Appel said HRDC publishes two monthly magazines, Prison Legal News and Criminal Legal News, which report extensively on the inadequate healthcare and inhumane living conditions found in jails and prisons across the country. HRDC has consistently requested records concerning these topics under different states’ public records laws.

Eaton said in the Vermont ruling that “Wellpath was an ‘instrumentality’ of the DOC during the contract period, and thus a ‘public agency’ subject to disclosure obligations of the PRA.”

The justices ruled the legislature has made it clear about the intent of public records. They also noted that an earlier high court agreed through its 1990 ruling when the Caledonian Record newspaper in St. Johnsbury successfully sued the Vermont Public Safety Commissioner because the state police were hiding arrests when people were issued citations to appear in court.

The statement of policy for the public records law provides that “officers 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 examinations may cause inconvenience or embarrassment,” Eaton noted. It also directs the PRA be “liberally construed to implement this policy.”

The justices said they did not consider whether Wellpath was a “functional equivalent” of a public agency because they determined it was an “instrumentality” of the DOC during the contract.

Eaton wrote it was undisputed that between 2010 and 2015 Wellpath was the sole means for the DOC to carry out the function of providing medical care to prisoners.

“Providing medical care to incarcerated person is a quintessential governmental function,” Eaton said.

He wrote the Constitution imposes upon government an affirmative duty to care for and protect individuals. The Eighth Amendment includes a prohibition against inflicting cruel and unusual punishments and once an inmate is in custody there is an obligation to provide medical care.

“Thus, we conclude that the language of the PRA is unambiguous: where the state contracts with a private entity to discharge the entirety of a fundamental and uniquely governmental obligation owed to its citizens, that entity acts as an ‘instrumentality’ of the State,” Eaton wrote.

Wellpath also advanced a few other legal concerns, but none held water, Eaton said.

“However, weighed 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,” he wrote.

In closing, the court quoted John Adams, one of the founding fathers of the nation and its second president.

“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 undisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.”