Committee debates whether private companies should be subject to public records requests

VTD/Josh Larkin

Secretary of State Jim Condos. VTD/Josh Larkin

The Vermont Constitution entitles citizens to hold state government accountable, and Vermont’s Public Records Act gives any person the right to access public records, regardless of motive. But when a private corporation performs traditional government work, can any person ask for documents held by that corporation?

This was the central question that occupied the Public Records Legislative Study Committee during its first meeting on Wednesday at the Statehouse.

Corporations under contract to the state are subject to the public records law, said Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union. He told the committee that people look at the statutory definition of a public agency to find a particular term, like “private contractor.” When they don’t see it, he said, they assume that private contractors are not covered by public records law. The way a court sees it, Gilbert argued, is that if contractors to the state are fulfilling government functions, they are automatically subject to public records law.

It’s not an academic question for Gilbert. He said the ACLU is involved in a lawsuit against Prison Health Services, a corporation that formerly provided health services to inmates in Vermont prisons. Gilbert said that since the corporation “is providing services that the state of Vermont would otherwise be providing,” their records are public records and any person can request their records.

The Legislature created the six-member study committee this session to vet controversies regarding public records law and its numerous exemptions. There is no definitive list of exemptions. A 2007 report to the Legislature listed 206 exemptions, but acknowledged “it is possible that additional exemptions exist in statute.” On Wednesday, Legislative Council Staff Attorney Michael O’Grady underscored the difficulty of collecting all the exemptions. He reported that his list had 239 exemptions at the beginning of the day, but he had added one more that morning.

Rep. Donna Sweaney, co-chair of the committee, said the committee’s goal is “to make government more transparent.”

The committee embarked on a preliminary run-through of the known exemptions, to note which ones they wanted to give further attention to. Many of the exemptions the committee had no problem retaining: Vermont Life’s subscriber list, for one. (One committee member expressed surprise upon learning that the state owns the glossy magazine.) Other non-controversial exemptions included information related to ongoing real estate transactions or other negotiations the state is party to, information on what materials individuals are borrowing from libraries, and the exact location of archeological sites.

After an hour, they had discussed 40 of the 240 exemptions. The committee decided to collect opinions from others between meetings on which exemptions to consider more closely. The rest of the meeting was devoted to questions of records held by private contractors.

Beth Robinson, counsel to the governor, weighed in for the Shumlin administration. She outlined some principles that the administration would like to see the committee follow in considering records held by private contractors, but she had no ready solutions. “We’re struggling with the same complexities that you all will be struggling with when you have this conversation,” Robinson said.

The underlying assumption of her testimony, however, appeared to be that subjecting corporations to public records requests would require a change in statute.

Robinson urged the committee to consider basic questions, such as what records should be readily available to the public that are currently inaccessible? She also asked them to consider cost to the state of making contractors respond to public records requests, and to spell out clear procedures for requesting the records.

Andy Maclean represented the Corrections Corporation of America, which houses about 500 Vermont convicts in out-of-state prisons. Maclean said CCA’s contract with the state obligates the corporation to provide certain records to the state. But he noted that many of CCA’s records involve criminal investigations. (Current statutes exempt records of ongoing criminal investigations from public records requests, but the ACLU has charged that police agencies are using the exemption too broadly.)

Committee members returned repeatedly to two questions about private contractors and public records. The first was whether the contracting state agency should field the requests and handle the interactions with the member of the public. The second question addressed the scope of the records subject to public purview. If, for example, CCA holds prisoners from other states in Arizona, for example, would records pertaining only to non-Vermont prisoners be considered Vermont public records? All the witnesses asked said that they wanted to see the Vermont requests limited to Vermont business.

The Committee scheduled its next meeting for Sept. 8, in the Statehouse, beginning at 9:30 a.m. and continuing all day. Committee members asked O’Grady of Legislative Council to identify which of the 240 currently identified exemptions he would recommend that the committee review. That list will be sent out to interested parties for comments.

Lynn Hegamyer ([email protected]) is assisting the committee with logistics and communications. She said that all of the documents the committee receives and generates will be available on a web site, but that it will be some weeks before the site is on line. Right now, she explained, her office is “buffaloed” with a backlog of public records requests.

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Comments

  1. timothy k price :

    It is unfortunate to use the prison system as an example in determining whether or not public records access should apply equally to private companies doing government work. It is entirely unacceptable that there even exists the “prison for profit” industry. Giving the justice system even more of an ” incarceration for profit” incentive, only furthers the police state character of our country. Profit from punishing others is in no way a benefit to our society, but, like the war on drugs… simply offers an incentive to criminalize other people’s behavior for the private profit of others. There should be no private contractors to the state offering their prison services… period.

    • Barry Kade :

      Although I agree wholeheartedly with Mr. Price’s opinion of the for profit prison industry, I feel that that industry is a perfect example, illustrating one extreme end of the spectrum on the discussion of whether private companies’ records are “public records.”
      I would suggest that any records the State agency has or has the right to get are public records. The fact that they are “public records” does not automatically mean they are legally available for public inspection.
      As defined by statute “public record or public document means any written or recorded information, regardless of physical form or characteristics, which is produced or
      acquired in the course of public agency business.”
      As the article discussed, not all public records are available for public inspection. Many are subject to one of the more than 200 exemptions which are now being reviewed.
      Unfortunately my suggestion allows less public scrutiny of a corporation than of the State if it were performing the function. For instance, I can access from the State not only the menus of food being served at its prisons, but the price it pays for rice and beans. I certainly should be able to access the menus of a private prison and would like to know what they are paying for food items, but I don’t see how that can be required. I’m open for suggestions.

      • Doug Hoffer :

        It can certainly be required as a condition of the contract.

  2. Doug Gibson :

    Well said Mr. Price. According to longtime DOC employees I have talked with, Vermonters made a conscious decision years ago that we wanted our prison system to be small and not institutional and to offer levels of programming sufficient to ensure that inmates coming out of our prisons were being furnished with the skills and knowledge necessary to be responsible members of society (granted, it’s not 100 percent successful by any stretch, but…)once out. That whole concept gets chucked in the garbage when we ship VT inmates off to these for-profit prisons, where a pack of smokes and a PlayStation are standard primary therapy. There’s also the elevated gang element to deal with as well. If shipping inmates off to out-of-state, private, for-profit prisons is now acceptable to Vermonters, then maybe it’s time for a discussion about why we don’t just build a stand-alone, giant prison here in Vermont and furnish the same level of services provided to our inmates in the private prisons. At least the money being spent would be going to Vermont and not to Tennessee, Kentucky, Massachusetts and Oklahoma.

  3. Tom Kearney :

    I think that, if a government chooses to outsource one of its functions to a private contractor, the government still remains responsible for the execution of that function, and accountable to the public for how well that function is accomplished. By logical extension, records relating to fulfilling that function should be public; otherwise, there is no accountability. As Doug Hoffer said, that standard can certain be made part of any contract for an outsourced government function.

  4. Dave Bellini :

    Are private prisons really less expensive than state run prisons? It’s never an apples to apples comparison. Anyone can operate a private prison for less money when they get to select only the inmates they want and don’t accept expensive to house inmates. State prisons have programming and high standards for employees.

    Why not compare a AA baseball team to a major league team? The players on both teams are “professionals” and there’s no argument a AA team costs less to operate. So, I guess the AA team must be better?

    • Doug Hoffer :

      You’re right Dave. Here is an excerpt from my testimony (on behalf of VSEA) to the House Gov’t. Operations Committee in 2008 regarding the costs of out of state facilities owned by the Corrections Corp. of America (CCA).

      “We know that the cost of housing a prisoner is cheaper at an out of state (OOS) facility than in Vermont. But is the comparison apples-to-apples? If not, the purported savings are exaggerated and could result in bad decisions. Here are some differences.

      1. Corrections Corporation of America (CCA) does not provide mental health services. The Dept. of Corrections (DOC) has not provided data for the actual cost of mental health services in Vermont prisons.

      2. CCA does not provide services related to sexual abuse, substance abuse, or violent offenders. DOC programs not available through CCA include the Cognitive Self Change program for violent offenders; the Intensive Domestic Abuse Program; Batterers Intervention Program; the Network Against Domestic Violence and Sexual Assault Programs; and the Discover Program for those with substance abuse problems.

      DOC has not provided data for the actual cost of these services in Vermont but they must be substantial. For example, the treatment programs for sexual abusers include over 100 beds in St Albans, Springfield, and Windsor staffed with 7+ FTE master’s level mental health professionals.

      3. CCA provides a GED program but, according to DOC, it is not comparable Vermont’s Community High School (CHS). DOC has not provided data for the actual amount spent by CCA for its GED program or any details about the program.

      DOC’s cost for “education” was $3.6 million in FY07. DOC was unable to say what CCA spends. When asked to provide comparable figures to reflect the difference in services, DOC adjusted its education costs downward to $1.45 million.

      According to CCA, 120 inmates earned a GED at its Kentucky facility in 2006. But the company did not say how many Vermont inmates went through the program (and DOC did not tell us). CCA reported that about half the inmates at the Kentucky facility were from Vermont. But since Vermont does not send inmates under 22 years of age out of state, it is likely that Vermont’s share of CCA GED graduates is less than half the total.

      CHS reported that 148 high school diplomas were awarded in FY07. DOC describes the CHS as a very substantial program serving hundreds of inmates who log thousands of hours of time in the classroom. DOC is required to spend the equivalent of the statewide average for public school students (minus trans. & debt service). Since CCA’s business model is based on cost containment and limited services, the quality of instruction cannot be comparable to the CHS.

      Therefore, without more information, it is difficult to understand DOC’s adjustment from $3.6 million to $1.45 million.

      4. DOC reported spending $13.4 million for medical care – $7,953 per inmate (not including mental health services). It seems highly unlikely that CCA would spend anywhere near that much since the total annual cost per inmate is only about $23,000. Thus, notwithstanding the differences due to the economies of scale, there must be significant differences in the health of the two populations and/or the nature and quality of the services provided.

      We asked DOC for information about health care services and costs at CCA facilities, but DOC had none. When asked, CCA provided information on Vermont inmates’ share of the percentage of total expenditures for medication. Vermont inmates represented about half the population at the Kentucky facility but accounted for 77% of the total cost for medication (including diabetic, cardiac, HIV, Hepatitis C, and asthma medication).

      The numbers appear compelling but there’s a lot of information missing. Percentages don’t tell us what the costs are. For example, 77% of a small amount is no big deal. And we don’t know whether a significant portion went to a small number of inmates with more serious conditions. And we don’t know anything about the demographics or medical condition of the Kentucky inmates. And, most importantly, we don’t (yet) know how the per inmate medication costs for VT inmates in Kentucky compare to the costs at DOC facilities. The question was about costs, not percentages.

      5. The CCA contract calls for the company to provide only the first $2,000 in care outside the facility (it was $20,000). A DOC memo claims this change will cost the state $360,000 per year. It does not appear that this cost has been added to the published contract costs for out of state prisoners.

      6. AHS and DOC staff make periodic visits to the OOS sites for various purposes. DOC estimated that the cost for FY07 was $139,000.

      All these costs should be taken into consideration when comparing the CCA contract rate and the DOC instate cost. The bottom line is that a fair comparison can only be made when the characteristics of the population and the services provided are apples-to-apples. We don’t yet have the data necessary to do this.”

      Quite apart from the broad question of the people’s right to know, policy makers need this type of information to make informed decisions. I hope Gov. Shumlin and Commissioner Pallito will insist that CCA and other private contractors make the necessary information available before the state enters into another round of contracts.

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