Court ruling will expand access to public records

MONTPELIER — The recent settlement of a long-running court case means the documents produced by a private company that does business with Vermont is subject to the state’s public records law.

After a three-year legal battle, the American Civil Liberties Union of Vermont has reached a financial settlement with a private prison provider in a court case that concludes the records produced by the provider during its services for the state are subject to Vermont’s Public Records Act.

“Vermont is essentially contracting out more and more government service work, and the question of access to records these contractors hold for the work they are doing for the government, the question will become more germane as people hold the government accountable,” said Allen Gilbert, executive director of ACLU-VT.

The private company referred to in the court case is Corrections Corporation of America — or CCA — that court documents refer to as a “for profit, publicly traded Maryland corporation headquartered in Tennessee in the business of operating prisons.”corrections-corporation-of-america-logo-jpg

From 2007 until early 2015, Vermont contracted with CCA to house some of the state’s prison population, with several hundred prisoners held at a private facility in Kentucky.

In 2012, Prison Legal News, monthly publication dealing with prisoner rights published by the Human Rights Defense Center in West Brattleboro, filed a public record request with CCA, looking for records of any money spent related to settlements or judgments against Vermont in relation to the services provided by CCA.

Court records state CCA did not respond to the request, and in 2013, ACLU-VT filed a lawsuit against CCA on behalf of Prison Legal News, arguing CCA’s records related to its work for the state should be subject to Vermont’s Public Records Act, which defines a public record as “any written or recorded information … which is produced or acquired in the course of public agency business.”

Court records state CCA argued the company was not subject the the state’s public record law because it is not a public entity, and argued the the point of the law is to hold government officials responsible, which didn’t apply to the company because the there were no government officials with CCA.

In 12-page decision, Superior Court Judge Robert Bent wrote that exempting private businesses that do business with the state from the Public Records Act could lead to less governmental transparency.

“It would enable any public agency to outsource its governmental duties to a private entity and thereby entirely avoid, intentionally or unintentionally, the fundamental interests in transparency and accountability that the Act is designed to protect and that has become a normalized quality and function of government,” Bent wrote.

Allen Gilbert

Allen Gilbert

“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. The governmental function factor clearly elevates CCA, to the extent of its involvement in the imprisonment of Vermonters, to the status of a public agency under the Act.”

While this ruling was issued in 2014, the lawsuit dragged on for another year because ALCU-VT and Prison Legal News sought money for the costs incurred in the lawsuit. This week all sides reached a settlement this that will avoid additional litigation.

“The public needs to know how prisoners are treated, and to understand how the private prison industry works,” said Paul Wright, editor of Prison Legal News. “By seeing documents showing settlements with injured prisoners, Prison Legal News can report on the ways in which Vermont prisoners are injured at CCA facilities, and how much CCA is willing to pay for its conduct.”

Gilbert said the court ruling could open up other private companies that contract with the state to increased scrutiny.

“This will allow us to look at the work being done by private contractors, if this is the most efficient and effective way for the government to carry out its work,” Gilbert said.

CCA did not repond to a request for comment for this story.

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