By Tom Kearney

Vermonters should be able to know whether the private company that used to handle prisoners’ health care did a good job while receiving $94 million from the state, the ACLU of Vermont says. 

Instead, all records of legal claims against the company are being kept secret.

The ACLU went to court Monday to support an effort by the Human Rights Defense Center to obtain records of legal claims filed during the five-year period, 2010-15, when Correct Care Solutions held the contract to provide health care for Vermont’s prisoners. 

Joining the ACLU’s brief were Vermont Secretary of State Jim Condos, Auditor Doug Hoffer, the Vermont Prisoners’ Rights Office and the New England First Amendment Coalition.

The ACLU and the Human Rights Defense Center contend that a state-hired contractor should not be able to withhold public records involving a core government function — providing health care for Vermont prisoners.

The two organizations argue that the records are covered by the Vermont Public Records Act and must be disclosed. 

Correct Care Solutions has fought the request, contending that a private company is not subject to the Vermont Public Records Act, and won summary judgment in a lower court, essentially dismissing the case. 

At a hearing in 2019, Washington County Superior Court sided with Correct Care Solutions, which argued that the Legislature did not include private contractors in the Public Records Act and that lawmakers, not a judge, should decide who the law applies to. Expanding the law to include private contractors, it said, could require them to make public information that is confidential or proprietary. 

The Human Rights Defense Center appealed that decision to the Vermont Supreme Court, and the ACLU filed an amicus brief Monday, supporting the request for disclosure.

The Vermont Department of Corrections is not a party in the lawsuit, and its policy is to decline comment on pending litigation.

The ACLU is urging the Vermont Supreme Court to adopt a principle used in a number of other states — functional equivalency. When the state hires a contractor, the contractor is subject to the Public Records Act “only when its ‘relationship with the government is so extensive that the entity serves as the functional equivalent of a governmental agency’ carrying out an essential government function,” the ACLU brief says, quoting a decision in a Memphis case. “The functional equivalency test strikes the appropriate balance,” the ACLU argues, and urges the court to adopt it.

“Vermonters expect their government and its contractors to be accountable,” said Lia Ernst, senior staff attorney for the ACLU of Vermont. “We can’t allow private corporations performing traditional, core government roles to evade our public records laws. 

“Transparency is especially important in this context,” she said, “given the continuing failures of our prison health care system and the resulting harms to incarcerated Vermonters and their families. The state can choose to outsource its work, but its legal obligations do not just disappear.”

From 2010 to 2015, Correct Care Solutions — a private, for-profit company operating as Wellpath — held a contract with the state government to provide health care for all people incarcerated in Vermont prisons. In return, the state paid Wellpath roughly $94 million. 

The Human Rights Defense Center — a nonprofit charitable organization dedicated to advancing prisoners’ rights — requested copies of settlements of lawsuits filed against Wellpath. Wellpath refused to disclose the settlements, and the lawsuit followed. Court decisions are always public records, but when the two parties reach a settlement, the details often remain secret because they don’t have to be filed with the court.

The ACLU brief said the Vermont Department of Corrections “contractually delegated to Wellpath a function that the DOC is both constitutionally and statutorily mandated to undertake.” Because it was operating as a “functional equivalent” of the government, Wellpath must adhere to the government’s obligations for transparency, as defined by the state’s public records law.

The ACLU of Vermont and its partners have litigated this issue before. In a 2010 case, a different medical contractor for the Vermont Department of Corrections voluntarily turned over the records before the court could rule. In a second case, filed in 2013, the court ordered Corrections Corp. of America to disclose the requested records.

In this case, the ACLU of Vermont is arguing that the state government is violating the spirit of the Public Records Act, whose purpose is to ensure governmental accountability by full disclosure of public records. It argues that, while agencies can outsource their core responsibilities to private companies, their obligation to disclose public records remains intact.

In this case, it argues, Vermonters cannot assess whether their $94 million was well spent without being able to see why or how often prisoners alleged inadequate health care by Wellpath.

Condos cited the Vermont Constitution as a reason for joining the ACLU brief: “That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times in a legal way, accountable to them.” 

Condos’ view is that the state government should not be allowed to delegate its responsibility to avoid transparency. 

“Good government is open government,” Condos wrote.

As the state auditor, Hoffer has virtually unlimited access to state records but has only modest resources and can’t examine more than a few state programs a year. So, he argues, the Public Records Act is the primary way for regular citizens to obtain essential records. 

The Public Records Act’s purposes cannot be achieved if agencies can outsource not only their core responsibilities, but also their public accountability, to private entities, Hoffer contends.

The ACLU quotes from a 1990 Vermont Supreme Court decision: “Broad access to records of government business furthers the public interest in “enabl[ing] any person to review and criticize [governmental] decisions even though such examination may cause inconvenience or embarrassment. … Public records document the legal responsibilities of government, help protect the rights of citizens, and provide citizens a means of monitoring government programs and measuring the performance of public officials.” 

In the lower court, the ACLU stated, “Wellpath argued it should not be considered to be performing a government function because the provision of health care ‘is predominantly the province of private entities and professionals.’ That may be true, but it is also beside the point. The function at issue here — providing comprehensive health care services to individuals incarcerated by the state pursuant to constitutional and statutory mandates imposed upon the state — is and historically has been a government function. This is a fundamentally distinct scenario from the provision of medical care in the community setting: Unlike those in the community, individuals in DOC facilities have no choice of medical providers and instead, during the lifetime of the Wellpath-DOC contract, could only get care from Wellpath” or from private providers it selected.