A court case settled this week involving access to records held by a private out-of-state prison contractor could have implications for other public records in Vermont.
After more than two-and-a-half years of litigation, the American Civil Liberties Union of Vermont, on behalf of Prison Legal News, and the Corrections Corporation of America (CCA) settled a case involving access to records held by the private prison contractor.
CCA had refused to supply Prison Legal News, national monthly news service, with records relating to lawsuits brought by Vermont inmates housed in the CCA’s private prison facilities.
In a January 2014 decision by Judge Robert Bent in Washington Superior Court denied CCA’s motion to dismiss the lawsuit, writing, “Imprisonment is one of the most intrinsically governmental of functions.”
“CCA holds Vermonters in captivity; disciplines them; pervasively regulates their liberty, and carries out the punishment imposed by the sovereign,” Bent continued. “These are uniquely governmental acts. CCA could have no lawful basis for such an undertaking except on authority of a government. It is no ordinary government contractor.”
Until June, several hundred Vermont inmates were housed in prisons owned by CCA in Kentucky and Arizona. The state opted not to renew its contract with CCA, switching to the GEO Group instead. Some 270 Vermonters are currently housed at a for-profit prison in Baldwin, Michigan.
Allen Gilbert, executive director of the Vermont chapter of the ACLU, said that Vermont’s decision is not unusual in the national context.
“This is not a novel determination, this has happened in other states in similar cases involving CCA,” Gilbert said.
But, the implications of the ruling could stretch beyond contracts with prisons to other private entities that contract with the state to perform governmental functions, Gilbert said.
Robert Appel, who formerly headed Vermont’s Human Rights Commission, heralded the decision as “a very important case.”
“The principle is readily transferrable,” Appel said. “Whether you like it or not, many public functions have been farmed out to private entities over the last several decades.”
Appel noted that there has been a trend to privatize services that were formerly performed by the state.
“That privatization should not exempt those private entities from complying with the Public Records Act,” Appel said.
The case could have a bearing on the state’s designated agencies — the private, nonprofit organizations with which the state contracts to deliver services to Vermonters.
The designated agencies have assumed responsibility for many services that state employees used to deliver, including mental health services that were once handled through the state hospital in Waterbury.
Records held by private contractors would still be subject to exceptions under the public records act — including information like an individual’s health records, Appel said.
Appel also noted that the decision affirms a change to the state public records law adopted by the Legislature regarding attorney’s fees. The fact that the complainant was not burdened with the cost of litigation is an important step in ensuring that records are truly accessible to the public, he said.
“Very few people have the resources” to fund court proceedings to challenge access to public records, Appel said.
Defender General Matt Valerio expects that the decision will have the impact of giving the public greater access to records.
Valerio said the access to private entities’ records would likely largely be positive, but was wary about respecting existing privileges — such as attorney client privilege or privacy guaranteed under the Health Insurance Portability and Accountability Act (HIPAA).
“If those are somehow bypassed, that could be a negative thing for individuals,” Valerio said.
Valerio’s office, which encompasses the prisoner’s rights office, interacts with Vermont’s out-of-state prison providers frequently. The court case will not have any impact on their work, because of their statutory role.
However, Valerio said, any difficulties his office has had accessing records from out-of-state prison contractors in the past have been more practical in nature. The bigger issue is that the state does not have a strong relationship with the individuals who work for CCA, or, now, the GEO Group. But communications challenges are typically resolved fairly quickly, he said.
