By Lou Varricchio

MONTPELIER A Vermont civil rights chapter is attempting to pry open the cover of secrecy between a health-care contractor and the state of Vermont.

Earlier this week, the American Civil Liberties Union (ACLU) of Vermont filed an amicus brief in support of the Human Rights Defense Center's (HRDC) effort to look into the state of Vermont and a corrections health-care contractor. HRDC is a nonprofit charitable organization dedicated to advancing the rights of prisoners.

Behind the brief is the issue that some Vermont prisoners have alleged inadequate health care by Wellpath, a firm contracted by the state.

By legal definition, amicus briefs (literally, "a friend of the court") are filed "by people who typically take the position of one side in a case, in the process of supporting a cause that has some bearing on the issues in the case."

The ACLU of Vermont's brief is supporting an effort by the Florida-based Human Rights Defense Center (HRDC) "to obtain records of legal claims filed against Vermont’s former prison healthcare provider over a period of five years."

Is it legal for a state contractor to withhold public records involving a core government function, in this case, the provision of healthcare in Vermont prisons? That's what the ACLU and HRDC are attempting to ascertain.

The issue has been presented to the Vermont Supreme Court to consider in the hopes of a ruling this year.

The most notable official supporting the ACLU and HRDC is Secretary of State Jim Condos, a long-time outspoken advocate of government transparency. Along with Condos, Vermont State Auditor Doug Hoffer, the Vermont Prisoners’ Rights Office, and the New England First Amendment Coalition have joined the amicus

According to a March 23 news release, ACLU of Vermont Senior Staff Attorney Lia Ernst said, “Vermonters expect their government and its contractors to be accountable. For that to happen, we can’t allow private corporations performing traditional, core government roles to evade our public records laws. Transparency is especially important in this context, given the continuing failures of our prison healthcare system and the resulting harms to incarcerated Vermonters and their families. The state can choose to outsource its work, but its legal obligations do not just disappear.”

The ACLU brief essentially outlines that, from 2010 to 2015, private for-profit Correct Care Solutions/Wellpath, contracted with the state to provide health care for all people incarcerated in Vermont prisons.

"In return, the state paid Wellpath roughly $94 million," according to ACLU Vermont. "HRDC...requested copies of settlements of the lawsuits filed against Wellpath. Wellpath refused to disclose those records, prompting this lawsuit." Vermont’s Department of Corrections “contractually delegated to Wellpath a function that the DOC is both constitutionally and statutorily mandated to undertake and argues that, because it was operating as a 'functional equivalent' of the government, Wellpath took on the government’s transparency obligations under the state’s public records law."

The ACLU of Vermont litigated the same issue in 2013. At that time, the Vermont Supreme Court ordered the Corrections Corporation of America to disclose records ACLU Vermont requested.

ACLU of Vermont stated, "that the Public Records Act’s purpose of ensuring governmental accountability cannot be achieved if agencies can outsource their core responsibilities – but not their transparency obligations – to private entities."

The text of the amicus brief may be read online at https://www.acluvt.org/sites/default/files/2020-308_hrdc_v._ccs_secretary_condos_et_al._amicus_brief.pdf.