A judge ordered a former New Mexico prison medical provider to pay $100 per day for withholding public records from the Human Rights Defense Center for nearly four years

By Phaedra Haywood
The Santa Fe New Mexican

SANTA FE, N.M. — A state judge has ordered a former New Mexico prison medical care provider to pay $100 per day for illegally withholding public records from the Human Rights Defense Center for about four years.

First Judicial District Judge Kathleen McGarry Ellenwood ordered Centurion Correctional Healthcare to pay the penalties — the maximum allowed under the state’s Inspection of Public Records Act — after determining the company had withheld the records “intentionally and in bad faith.”

The sanctions are expected to total about $150,000, Human Rights Defense Center attorney Adam Flores said in an interview following a recent hearing when the judge handed down her ruling.

The New Mexico Corrections Department, which also was a defendant in the 2021 lawsuit, agreed to an out-of-court settlement, promising to pay the nonprofit $62,500 to drop its claim, a Sept. 12 agreement said. The state spent $14,350 litigating the matter before agreeing to the settlement, according to the state General Services Department.

“The Department takes its legal obligations under the Inspection of Public Records Act (IPRA) very seriously,” a spokesperson for the state agency wrote in an email Monday.

“In this particular case, the Department chose to settle the claim to avoid protracted litigation and additional costs that could ultimately exceed the settlement amount,” she wrote.

Centurion did not responded to requests seeking comment for this story.

McGarry ruled the records the nonprofit prisoner advocacy group sought — settlement agreements in cases in which Centurion had paid more than $1,000 in response to a claim, as well as the complaints they settled — are public records and ordered the company to turn them over within 10 days.

“The government knows they are withholding records and they would rather contract away their transparency and spend $62,000 in taxpayer money than make the vendors uphold the law, Human Rights Defense Center founder Paul Wright said in a recent interview.

The records are important because they provide a window, albeit a “foggy” one, into “how well or poorly these institutions are run,” Wright said.

He argued Centurion and other for-profit companies that secure multimillion-dollar government contracts to provide medical care to prisoners “have no other function but to make money.”

He added, “This literally has life-or-death consequences for every person who doesn’t get timely care or diagnosis. And we don’t really have a good way of capturing those stories. ... This is a way that actually does capture those stories.”

The judge’s ruling upholds prior state District Court and state Court of Appeals rulings deeming the records public and finding the state can’t contract away its public records obligations to third-party vendors — including a 2016 ruling in a case the Santa Fe New Mexican, The Albuquerque Journal and the Foundation for Open Government brought against prior inmate medical care provider Corizon Health over the same type of records.

Despite the recent and prior rulings, the companies have routinely refused to produce such records.

Flores said Friday he expects Centurion to continue withholding the records despite the judge’s order, even if it means being found in contempt of court.

“They still haven’t given us the records, not a single page,” Wright said Friday.

The company — which held the state’s prison medical care contract for four years starting in 2016 — filed a motion Sept. 9 asking the court to delay enforcement of the judge’s order, pending an appeal.

Flores said he won’t give up without a fight.

“They picked the wrong person to mess with on that,” he said. “I’m not going to let those cases get overruled.”

Wright’s organization has been fighting such battles across the nation for years.

He says the companies and government entities in New Mexico and elsewhere often opt to pay penalties and settlements rather than comply with the law.

“Our lawyers are getting paid,” he said. “This is the price of justice in America, and we are willing to pay it — and so are they, apparently,” Wright said.

Prison Legal News — a publication owned by the Human Rights Defense Center — secured a settlement in 2021 in a records case against the New Mexico Corrections Department that requires the state to include a clause in its next inmate medical care contract requiring the contractor to “comply with all provisions of applicable New Mexico law,” including public records laws.

The contract in place at the time, with current vendor Wexford Health , was set to expire in 2023. However, the state extended the contract through November, so the terms of the settlement have not yet been satisfied.

“We’re currently going through a Request for Information ( RFI ) process for our next inmate medical care contract,” Corrections Department spokesperson Brittany Roembach wrote in an email last month. “This process ... is a chance to gather information about possible vendors. After a selection is made, contract negations will begin. During that time, we plan to negotiate with the vendor to include the provision.”

“The Department does not encourage third-party vendors to ignore [Inspection of Public Records Act] requirements,” another agency spokesperson wrote in an email Monday. “The Department is committed to including specific language regarding IPRA compliance in future contracts with inmate medical care providers.”

The inmate medical contract is one the largest contracts in state government. The state agreed to pay Wexford Health Sources Inc. $246 million over four years. A November 2023 contract extension required the state to pay the vendor at least $47.6 million — not to exceed $73.8 million — for an additional year.