The ACLU of Vermont is supporting an effort by the Human Rights Defense Center (HRDC) to obtain records of legal claims filed against Vermont’s former prison healthcare provider over a period of five years. The question of whether a state contractor can withhold public records involving a core government function – in this case, the provision of healthcare in Vermont prisons – is now pending at the Vermont Supreme Court.
The ACLU of Vermont filed an amicus brief on Monday, March 21, 2021 supporting HRDC’s position that the records at issue are subject to Vermont’s Public Records Act and must be disclosed. The ACLU’s brief is joined by Secretary of State Jim Condos, Auditor Doug Hoffer, the Vermont Prisoners’ Rights Office, and the New England First Amendment Coalition.
Vermonters expect their government and its contractors to be accountable. For that to happen, we can’t allow private corporations performing traditional, core government roles to evade our public records laws. Transparency is especially important in this context, given the continuing failures of our prison healthcare 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, contracted with the State to provide health care for all people incarcerated in Vermont prisons. In return, the State paid Wellpath roughly $94 million. HRDC—a nonprofit charitable organization dedicated to advancing the rights of prisoners — requested copies of settlements of the lawsuits filed against Wellpath. Wellpath refused to disclose those records, prompting this lawsuit.
The ACLU’s brief notes that Vermont’s Department of Corrections “contractually delegated to Wellpath a function that the DOC is both constitutionally and statutorily mandated to undertake” and argues that, because it was operating as a “functional equivalent” of the government, Wellpath took on the government’s transparency obligations under 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 DOC voluntarily turned over the records before the court could rule. In a second case, filed in 2013, the trial court ordered Corrections Corporation of America (CCA) to disclose the requested records — but the Vermont Supreme Court has never before ruled on this question.
In this case, the ACLU of Vermont again urges that the Public Records Act’s purpose of ensuring governmental accountability cannot be achieved if agencies can outsource their core responsibilities – but not their transparency obligations – to private entities. More specifically, Vermonters cannot assess whether their $94 million dollars were well spent without being able to see why or how often prisoners alleged inadequate health care by Wellpath.
