MONTPELIER -- A lawsuit by a Brattleboro publisher and the American Civil Liberties Union of Vermont is raising a question about what happens to the idea of access to public records when government services are privatized.
Prison Legal News of Brattleboro says it’s been stymied in its efforts to get information under the state’s Public Records Act about settlements of suits brought by Vermont inmates against the Corrections Corporation of America.
That private company is doing Vermont state business by housing inmates from Vermont at prisons in Kentucky, Arizona and Indiana.
"The issue of whether private contractors are covered by the Public Records Act becomes all the more important because there’s been more and more outsourcing of state government services in recent years," said Allen Gilbert, executive director of the ACLU’s Vermont chapter.
In addition to the Corrections Department’s use of prison beds managed by CCA, Gilbert pointed to a push in the state’s mental health system to house patients in private hospitals. That movement has grown since flooding from Tropical Storm Irene in 2011 forced the closure of the public Vermont State Hospital in Waterbury.
"Like a lot of other people, we’re trying to get an answer to the question of whether a private contractor is subject to the Public Records Act the way a state agency would be if it were providing the service," the ACLU chief said.
The law says government records must be made available for public inspection unless specific exemptions apply.
Rep. Donna Sweaney, D-Windsor and chairwoman of the House Government Operations Committee, said Wednesday she expects a special review of Vermont’s public records law will include asking what happens to public information when private companies take over government services.
"That issue has come up and it hasn’t been resolved," Sweaney said. "It certainly does present a very interesting case." Private companies’ records normally are not subject to public inspection the way a government agency’s are, she noted. "But if you’re doing the state’s work with public money, how open should your records be?"
Prison Legal News first asked the Corrections Department for information about the lawsuit settlements but was told the agency didn’t have the information and was referred to CCA, editor Paul Wright said Wednesday.
Wright accused the state of "willful blindness and ignorance in government" about the treatment of Vermont prisoners. He said the lawsuit, filed last week in Washington Superior Court in Montpelier, followed similar, successful suits in other states.
Corrections Commissioner Andrew Pallito said in an email that while his department does not get copies of settlements, it does monitor major cases brought by inmates against CCA.
"To my knowledge, contractors are not obligated to disclose settlements to the state," Pallito wrote. He said the CCA contract says the state is indemnified, meaning Vermont does not have to pay when the settlement of an inmate suit results in money going to the inmate.