Vermont ACLU sues private prison company over public records

The Vermont ACLU is suing the nation’s largest private prison company for allegedly ignoring public records requests about Vermont prisoners.

The question at the heart of the lawsuit is whether or not the state’s public records act can be applied to a private corporation that is performing duties for a public agency. Vermont ACLU attorney Dan Barrett says he’s confident it can.

It’s bringing the case against the Corrections Corporation of America (CCA) on behalf of Prison Legal News (PLN), a national periodical that covers prison conditions and court cases.

CCA is the largest private prison operation in the country — it runs 60 facilities in 20 states, overseeing a total of 90,000 beds.

Vermont has contracted with CCA since 2004. Right now, roughly 500 of the state’s inmates are housed in CCA prisons. The bulk of them are in a medium security, 816-bed facility in Beattyville, Ky.; a smaller number are being held in Florence, Ariz.

In the fall of 2012, Prison Legal News sent a public records request to CCA for any payment records for court cases between the CCA and Vermont prisoners, according to the complaint filed by the ACLU. When CCA didn’t respond, PLN appealed but still heard nothing.

“They completely ignored us,” Lance Weber, general counsel for the Human Rights Defense Center, which produces PLN, said.

On May 31, they filed a complaint with the Vermont Superior Court.

The Vermont ACLU and PLN say the documents at stake — settlements and judgment records — often provide telltale signs about prison conditions.

Weber says PLN uses legal documents to show the public how much private prisons spend on lawsuits.

“We are holding the government accountable for what it’s doing with our tax money. The amounts of money that are being paid out when prisoners are killed or maimed helps to show the public what the price is of doing business with a private prison company.”

Obtaining the legal records of prisoners held in-state is a straightforward matter, since the Department of Corrections falls squarely under the state’s public records law. But it’s a different story for records that involve prisoners under CCA’s supervision in Kentucky and Arizona. The Vermont ACLU and PLN are arguing that CCA has to comply with Vermont’s public records act when it is carrying out the duties of the DOC.

This will be the first time a Vermont court has weighed in on the matter, according to Barrett. The case piqued the Vermont ACLU’s interest because it taps into a murky realm of the state’s public records law, one that’s becoming increasingly important to clear up, according to executive director Allen Gilbert.

Gilbert noted in a news release issued Thursday that, “States and municipalities are contracting out more and more of their responsibilities, and it’s vital that Vermonters don’t lose the ability to see what’s being done in their names and with their tax dollars.”

A ruling in PLN’s favor would pave the way for public records requests in other areas of state government where duties are outsourced to private contractors — Barrett pointed to the state lottery and the health insurance system as two arenas where this ability could come in handy.

An ample number of this type of public records lawsuits have been litigated elsewhere in the country, according to Barrett. The outcomes of those cases have varied based on differences between states’ public records laws, but Barrett says they have been “generally sympathetic.” He added, “We are very confident that there are quite a number of decisions that look a lot like ours.”

It won’t be the first time CCA and PLN have faced off in court. PLN recently came out victorious in a similar public records suit against CCA in Tennessee, and it has filed another case in Texas. In fact, it won’t even be the first time that this type of case has cropped up in Vermont.

In 2010, the Vermont ACLU and PLN teamed up to sue Prison Health Services, a private company that used to contract with the Department of Corrections (DOC) to provide medical services to Vermont inmates. That lawsuit came on the heels of the death of Ashley Ellis, a female inmate who died from a potassium deficiency when she wasn’t given her supplements. PLN wanted the records for lawsuits and settlements between Prison Health Services and Vermont prisoners, and the corporation eventually complied, opting to settle the lawsuit instead of letting a judge rule on the case in court.

Weber says he’s “cautiously optimistic” about their chances this time around.

CCA public affairs manager, Mike Machak, responded to a request for comment with the following statement. “Transparency is a critical part of the relationships we have with our government partners and the taxpayers they serve. We comply fully with all applicable open records laws and share information freely with our government partners. Like all businesses, CCA has proprietary information, some of it gained through decades of experience and innovation, and there is some of that business information we need to protect to maintain our competitive position and capabilities.

“This information helps our company deliver the superior level of service that our government partners and taxpayers have come to rely on. Similarly, our partners trust us with confidential information. We believe the interests of those partners are best served when they decide what of that information is released to the public rather than us.”

Machak said he couldn’t speak more specifically to the lawsuit at this time.

The complaint can be found here.

Alicia Freese

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  • Fred Woogmaster

    Thank you Vermont ACLU and Mr. Gilbert.

    Unfortunately, the “corrections industry” seems to continue to be a growth industry.

    The incarceration of Vermont prisoners in out of state prisons is, and has always been, bad public policy in my opinion. The decision to do so was billed as a move to reduce cost.

    There are many hidden costs, including the costs related to severing family connections; innocent children are separated from parents they love. Believe it or not, all people convicted of offenses that lead to incarceration are not bad people and are not bad parents. Kentucky

    It may be that the unexpected consequences of this suit will be the discovery of why CCA can house our Vermont prisoners for so much less money.

    What are the differences between Vermont prisons and CCA prisons? Does maximizing profit for shareholders necessitate the minimizing of services? Do they come back better or worse? Kentucky and Arizona are far distant places, prohibitively distant, for many Vermonters – and, out of sight.

    This is a valuable legal action. Thank you.

  • Doug Gibson

    In 2010, CCA lost on a similar lawsuit filed by PLN. Here’s what one of the Appeals Court Justices wrote:

    “With all due respect to CCA, this Court is at a loss as to how operating a prison could be considered anything less than a governmental function,” Appeals Judge D. Michael Swiney wrote in his opinion.

    And from a 2010 AP story:

    “Davidson County Chancellor Claudia Bonnyman sided with Friedmann and ordered the company to turn over most of the records. CCA appealed, but the Tennessee Court of Appeals ruled last year that CCA must comply with the law because it performs the equivalent function of a government agency by running state prisons.”

    Thanks to Alex and the PLN. You are doing some great work!

  • kevin lawrence

    What an intelligent lawsuit. The VT ACLU is the only organization (besides Gun Owners of America) that I joined in 2012. I appreciate their concern for justice in an Obama era where secrecy and information-gathering occur beneath the cloak of shadowy “law.”

    Thanks, ACLU.

  • Dave Bellini

    The CCA talking heads could/should work for the government of North Korea. Describing CCA as innovative and a champion of transparency is as credible as when North Korea calls itself a “paradise.”

    Vermont’s use of CCA is schizophrenic. On the one hand Vermont has a liberal, socially sensitive, avant-garde corrections department, more so than any other in the United States. The mission to help offenders make positive changes is genuine and results tangible. In Vermont, the Corrections Department is part of the Agency of Human Services. Unlike other states, it is not part of a law-enforcement division. Employees are trained to high standards to work with human beings. Vermont is NOT “Cool Hand Luke.” Vermont has national recognition as a leader in corrections practices and is sometimes described as “ahead of the curve.”

    Yet, as “forward thinking” as Vermont is, it contracts with an entity that is its polar opposite. We send our tax dollars and jobs to Kentucky. We export people to a private prison company that has a “rap sheet.” Vermont is indifferent to private prison conditions and practices it would not tolerate in Vermont.

    Why are private prisons “cheaper” ???

    1. They pick and choose what inmates they will take. They don’t accept inmates that cost too much. So the mentally ill, developmentally disabled and medically expensive inmates stay in Vermont. Private prisons don’t take the trouble makers either. They won’t take the most violent, dangerous, assaultive inmates. They can’t handle that.

    2. Why would anyone work in a private prison if that state has state run prisons? And all 50 states have state run prisons? Why would one choose to earn far less money and have fewer benefits working in a private prison? Why don’t they work in state run facilities for higher pay and better benefits? It could be that private prisons have lower standards for employees. It could be that private prisons don’t hire “returning champions” from JEOPARDY.

    Bottom line: Private prisons are quite selective about inmates but less so with employees. Add to this a lack of programs and it is easy to understand the cost differences.

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