HRDC v. Correct Care Solutions, LLC, VT, Opinion, Public Records, 2021
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ENTRY ORDER 2021 VERMONT UPREM FILED IN LEHK's (E35938? VT 63 SEP 0 3. 2021 SUPREME COURT DOCKET NO. 2020-308 JUNE TERM, 2021 Human Rights Defense Center v. Correct Care Solutions, LLC and Correctional Care Solutions Group Holdings, LLC } } } } } } APPEALED FROM: . Superior Court, Washington Unit, Civil Division DOCKET NO. 51-2-19 Wncv In the above-entitled cause, the Clerk will enter: Reversed and remanded fer proceedings consistent with this opinion. FOR THE COURT: arold E. Eato , Jr., Associate Justice Concurring: Eaul L. éeiber, :lhie‘f Justice égen R.éarroll, Associate Justice 1 1i D. o n, Associate Justice NOTICE: This opinion is subject to motions for reargurnent under V.R.A.P. 4O as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont. gov or by mail at: Vermont Supreme Court, 109‘ State Street, Montpelier, Vermont 05609-0801 , of any errors in order that corrections may be made before‘this opinion goes to press. ' - VERMONT UPREME COURT FILED IN LEW'S OFFICE VT 63 2021 SEP 0 3 No. 2020-308 2021 I Human Rights Defense Center Supreme Court On Appeal from Superior Court, Washington Unit, v. Civil Division Correct Care Solutions, LLC and Correctional Care Solutions Group Holdings, June Term, 2021 LLC Robert R. Bent, J. Robert Appel, Charlotte, and Daniel Marshall, General Counsel & Litigation Director, Human Rights Defense Center, for Worth, Florida, Plaintiff-Appellant. Lake Justin B. Barnard of DINSE, Burlington, for Defendants-Appellees. Lia Ernst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Amici Curiae Secretary of State James Condos, Auditor Doug Hoffer, Prisoners’ Rights Ofce, New England First Amendment AssOciation, and the American Civil Liberties Union of Vermont. PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ. 1] 1. EATON, J. ' Between 2010 and 2015, pursuant to a contract with the Vermont Department of Corrections (DOC), ‘Wellpath LLCl assumed responsibility for providing medical care to every person in state custody within Vermont. Under the auspices Records Act (PRA), plaintiff Human Rights Defense Center (HRDC) of Vermont’s‘Public requested om Wellpath any records relating to legal actions and settlements arising from this care. Wellpath declined to irnish the requested records, arguing that, as a private contractor, it was not subj ect to the l At the time, Wellpath was doing business as Correct Care Solutions, naming convention used in its brief. LLC; we PRA’s adopt the disclosure requirements. HRDC brought the instant suit, and the trial court entered judgnent for Wellpath. We reverse and remand. 2. The relevant facts are undisputed. Wellpath is a private company which contracts with government agencies in multiple states to provide medical care in prisons and jails. In 2009, the Vermont DOC sought bids from medical contractors capable of “operating a comprehensive healthcare progam” for incarcerated individuals “on behalf of the State.” The DOC selected Wellpath’s bid, and the two entities entered a contract for such services beginning in 201 0. 1] 3. During the ve-year period that the contract was in place, Wellpath was responsible for delivering or procuring all medical care necessary for persons incarCerated in DOC’s the facilities. This comprehensive range of services encompassed, inter alia, medical assessments, primary care, inrmary services, dental. care, dietary management, obstetrics and gynecology, prOsthetics, optometry, substance-abuse treatment, chronic-disease management, and provision of mental-health services. In exchange for assuming these responsibilities, the DOC paid Wellpath more than $91 million over the contract period. At the time, Wellpath’s only business in Vermont was pursuant to this contract with the DOC. 11 4. Under the contract, Wellpath’s policies and procedures were both “subordinate to” those of the DOC and subject to the DOC’s review to ensure compliance with relevant federal and state laws and regulations. The DOC was to “monitor” Wellpath’s ongoing compliance through scheduled and unscheduled audits. The contract contained robust reporting requirements and detailed penalty provisions. For example, Wellpath’s failure to administer a routine pharmaceutical within two hours of the time it was scheduled to be dispensed could result in a ne of up to $500 for a single occurrence. 11 5. HRDC, the plaintiff in this case, is a nonprot organization focusing on public education and advocacy related to the criminal-justice system. disclosure obligations under the PRA, HRDC In December 2015, citing sent Wellpath arequest for public records relating 2 ' _to claims; lawsuits, or settlements arising from Wellpath’s provision of services under its contract With the DOC. Wellpath declined to furnish these documents, taking the position that, as a private entity, it was not subj ect to the PRA. HRDC sent Wellpath a second records request in December i 201 7, seeking substantially similar disclosures. Wellpath did not respond. 1] 6.. HRDC then led the PRA. The parties led this action in the trial court seeking to compel disclosure under cross-motions for summary judgment. HRDC argued that, by providing healthcare to inmates on behalf of the state, Wellpath became the “functional equivalent” of a public agency, and was therefore—like the DOC—subjectto the PRA. Wellpath countered that the plain language of the PRA neither implicated private entities nor supported application of the functional-equivalency analysis, a test applied in other jurisdictions to determine whether an entity is subject to their public-records acts because its relationship with the government was such that the entity became the “functional equivalent” of a government agency. See, e.g., Washington Research Project, Inc. v. Den’t ofHealth, Educ. & Welfare, 504 F.2d 238, 245-48 (D.C. Cir. 1974). Thereunder, courts consider four nonexclusive factors: (1) whether, and to what'extent, the entity performs a governmental or public function; (2) the level of government funding of the entity; (3) the extent of government involvement with, regulation of, or control over the entity; and (4) whether the entity was created by the government. Memphis Publ’g Co. v. Cherokee Children & Famin Servs., Inc., 87 S.W.3d 67, 79 (Tenn. 2002). As the Tennessee Supreme Court has explained, because the analysis is intended “to ensure that a governmental agency cannot, intentionally or unintentionally, avoid its disclosure obligations under the [public-records act] by contractually delegating its responsibilities to a private entity,” the rst as the “Cornerstone” of the test. 1g. The trial court applied the functional-equivalency analysis and held that Wellpath was not the functional equivalent of healthcare is not Wellpath.- factor is generally viewed a government function. of a public agency because the provision On this basis, it granted summary judgment for A 7. 1I HRDC appeals, maintaining mctionahequivalency that although the trial court correctly applied the test to determine whether Wellpath was subject to the concluding that Wellpath was not the PRA, it erred in “functional equivalent” ofthe DOC thereunder and therefore fell outside the purview of the Act. Wellpath counters that the trial court reached the correct conclusion using the wrong reasoning: the functional-equivalency test is not appropriately applied under the PRA, but nor does the PRA’s plain language encompass private entities like Wellpath. We do not reach the question of whether the functional-equivalency test applies to the determination of whether an entity is a “public agency” pursuant to the unnecessary to our conclusion; rather, we nd PRA because it is that Wellpath was an “instrumentality” of the DOC during the contract period, and thus a “public agency” subject to the disclosure obligations of the PRA. 1] 8. We review a trial court’s summary-judgment ruling de novo, applying the same standard considered below: judgment is entered in the there is no genuine dispute v. State, 2021 VT 39, 1] moving party’s favor where it can show that of material fact and judgment is appropriate as a matter of law. 11, _ Vt. _ A.3d _; _, see also m V.R.C.P. 56(a). The only issue presented in this case is a question of law—whether the term “public agency,” as used in thePRA, encompassed Wellpath during the ve-year Bd. v. -Washington S. Educ. Ass’n, 2019 issue's period it contracted with the state. See Northeld VT 26, 11 13, 210 Sch. Vt. 15, 210 A.3d 460 (explaining that of statutory interpretation present questions of law). 1] 9. In interpreting a statute, our primary aim “Legislature’s intent. Flint v. Dep’t of Labor, 2017 is to discern and then implement the VT 89, 1] 5, 205 Vt. 558, begin by looking to the plain meaning ofthe words the Legislature used. I_d. 177'A.3d 1080. We Where that language is clear and unambiguous,- this is also where our inquiry ends: we enforce the enactment according to those terms. IQ. Only where the Legislature’s intent is unclear on the face ofthe statute do we resort to other tools of statutory construction. . Accordingly, we turn 10. 1[ rst to the operative language of the Act. Under the PRA, “[a]ny person may inspect or copy any public record of a public agency.” Act denes 1 V.S.A; § 316(a). The “public agency” as “any agency, board, department, commission, committee, branch, instrumentality, or authority of the State or any agency, board, committee, department, branch, instrumentality, commission, or authority of any political subdivision of the State.” IQ. § 3 17(a)(2). We are guided in our interpretation of this language by the Legislature’s express 11. statement of the policy which undergirds the Act. See State v. Berard 2019 VT 65, 11 12, n. 1 , 211 Vt. 39, 220 A.3d 759 (noting that plain language 0f statute must be considered “in the context and structure of the statute as a whole, rather than in isolation” (quotations omitted». In few statutes is the Legislature’s intent set forth so explicitly as it is here. See Caledonian Record Publ’g Co. V. Walton 154 the statement “[o]fcers Vt. 15, 20, 573 A.2d 296, 299 (1990) (commencing interpretation of PM “with of legislative intent in the Act”). The PRA’s policy statement provides that of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.” ' l V.S.A. § 315(a). It further directs that the provisions PRA “be liberally construed to implement this policy.” 11 12. MoreoVer, the PRA nds of the IQ. constitutional predicate in Chapter I, Article 6 of the Vermont Constitution, in which the Framers recognized “[t]hat all power being originally inherent in and co[n]sequently derived om the people, therefore, all ofcers of government . . . are their trustees and servants; and at all times, in a legal way, aCcountable to them.” Vt. Const. ch. I, art. 6; see also Galedonian Record Publ’g Co.. 154 Vt. at 21, 573 A.2d at 299-300 (“The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.” (quoting U.S. Dep’t of Justice v. Reporters 5 Comm. for Freedom ofthe Press 489 U.S. 749, 772-73 (1 989))). Thus, “[W]e do hot overstate the case in saying that open access to governmental records is a fundamental precept of our society.” Shlanskv V; Citv of Burlitgton. 2010 VT 90, 1] 12, 188 Vt. 470, 13 A.3d 1075. 1] With this understanding of the Legislature’s intent, we consider the dispositive 13. question in this appeal: whether Wellpath is a “public agency” within the meaning of. the HRDC contends PRA. that this. inquiry is appropriately resolved with reference to the functional- equivalency test. However, this Court'has yet to consider whether the functional-equivalency analysis has any application under Vermont’s PRA, and'we do not reach that question‘today. Courts began applying the functional-equivalency test based on the recOgnition that “any general definition” of the term “agency” is. “of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of the government done.” washington Research Project, Inc., 504 F.2d at 245-46. However, the denition forth in Vermont’s PRA is not so general as to have limited utility under the circumstances of this case. We do not consider whether Wellpath was the “functional equivalent” because we conclude that it was an “instrumentality” 1.V.S.A. 1] § 3 17(a)(2). Therefore, it l4. of “agency” set of a public agency of the DOC during the contract period. See m a “public agency” as that term is dened in the PRA. . Our conclusion that Wellpath was an instrumentality of the DOC is based on the plain meaning of that term, our consideration of all material aspects of the relationship between Wellpath and the DOC, the fundamentally g0vernmental nature of the responsibility Wellpath assumed on behalf of the state, and the liberal construction the Legislature directs us to accord the PRA. Two other jurisdictions, Maryland and New Jersey, have engaged in similar inquiries. Under Maryland’s public-records act, a record was subj ect to disclosure where it was either made or “received . . . in connection with the transaction ofpublic business” “by a unit or instrumentali of the State government or of a political subdivision.” Md. Code Ann., State Gov’t ' § 10-611 (2004) (emphasis added). Tasked with determining whether the City of Baltimore Development Corporation was an “instrumentality” of Baltimore City, the state’s highest court identied the following relevant considerations: (1) the plain meaning of the term “instrumentality”; (2) that— consistent with that plain meaning—the entity in question was established and maintained “as an agent or tool of Baltimore City in order to accomplish the City’s ends or purposes”; (3) an examination of “all aspects of the relationship between the entity and the state” to determine whether the entity was “subject to substantial control by the City because of how closely the two [were] intertwined”; and (4) the legislature’s intent, in passing the state records act, that its constituents “be accorded wide-ranging access to public information concerning the operation of their governmen .” City of Baltimore Dev. Corn. v. Carmel Realty Assocs., 910 A.2d 406, 42628 (Md. 2006) (quotation omitted). 1] dened 15. Similarly, New Jersey’s public-records act applies to “public agencies,” a term to include an' “instrumentality” created by a political subdivision. The Supreme Court of New Jersey has held that a nonprot N.J.S.A. 47:1A-1.1. lobbying organiZation representing local government interests was just suchan instrumentality. Fair Share Hous. Ctr., Inc. v. N.J. State Leagu_e of Municipalities, 25 A.3d 1063, 1071-72 was undened, (NJ. 201 1). Because “instrumentality” the court likewise looked to the dictionary to ascertain its plain meaning. See . at 1071. It then analyzed multiple facets of the entity’s relationship to the state and determined that it was “achieving an end and providing a function on behalfof all [the state’s] municipalities,” and, as a result, was an “instrumentality” of a political subdivision of the through inclusion of “instrumentality” in denition, at all relevant aspects (holding that plain language of public-records act “places the [entity] squarely within the term ‘public agency’-”). amework—looking state. . We apply a similar conceptual of the relationship between the entity and the state—- and arrive at a corollary conclusion. 1H6. We begin by considering the plain meaning of the term “instrumentality.” Where, as here, statutory language is undened, we accord the term its “plain and ordinary meaning, which may be obtained by resorting to dictionary denitions.” Comm’n, 2018 V VT 19, 11 KhaInnei v. Bmggon Pub. Works 14, 206 ”Vt. 550, 183 A.3d 1157 (quotation oniitted). Black’s Law Dictionary indicates that an instrumentality is either “[a] thing used to achieve an end or purpose,” or “[a] means or agency through which a function of another entity is accomplished, such as a branch of a governing body.” nstrumentalig', Black’s Law Dictionary (1 1th ed. 2019). Similarly, the Merriam-Webster Dictionary tells us that the legal denition through which an end is achieved or occurs’; or “something‘that of instrumentality is “something serves as an intermediary or agent through which one or more functions of a larger controlling entity are carried out,” “a part or branch especially of a governing body.” Instrumentality, Merriam-Webster 0nline Dictionary, ' https://www.merriam—web'ster.com/dictionary/instrumentality#1earn—more [https://perma.cc/ HQE7-V2VU]. 11 17. It is undisputed here that, between 2010 and 2015, Wellpath was the sole means through which the DOC carried out the inction ofproviding medical care to incarcerated persons. The question of whether this function is fundamentally governmental in nature isimportant to our analysis for the same reason that courts applying the functional-equivalency test consider it the “cornerstone” of their inquiry: because an interpretation of our public-records act which allows a ' governmental agency to—intentionally or unintentionally—insulate records relating to the performance of its responsibilities from disclosure by delegating those responsibilities to a private entity would defeat the purpose of the Act. See Memphis Publ’g Co., 87 S.W.3d at 79 (so concluding in light of duty “to cons-true the Tennessee Public Records Act liberally in favor of the illest ‘ possible public access to public records” (quotation omitted»; see also, e.g., Trombley v. Bellows Falls Union High sch. Dist. No. 27, 160 Vt. 101, 108, 624 A.2d 857, 862 (1993) (rejecting reading of PRA exemption which, although “possible,” would documents included in employee’s disciplinary le construe authorize nondisclosure of as inconsistent with Legislative mandate to PRA liberally in favor of disclosure, noting it would “allbw agencies to avoid disclosure by the simple act ofplécing a document in a personnel or similar le”). apply the functional-equivalency test here to determine of a public agency, we nd Thus, although we do not if Wellpath was the functional equivalent that its primary focus on whether the undertaking in question fundamentally governmental in nature ts is hand-in-glove with our inquiry into whether a private entity acted as an “instrumentality” of the state? 1] l8. Providing mediCal care to incarcerated persons is a quintessential governmental function. Wellpath argues that healthcare services, being-“widely delivered by private medical professiOnals outside of the correctional context,” are “not uniquely governmental in nature.” But in focusing on the provision of healthcare generally, rather than the provision of healthcare to incarcerated persons specically, Wellpath elides the dependent relationship giving rise to the duty in question here. It is precisely the delivery of those services within the correctional context which renders them uniquely governmental in nature. Indeed, the Legislature has required that the DOC “provide health care for inmates in accordance with the prevailing medical standards.” 28 § V.S.A. 801(a). And where the DOC contracts with a provider for the delivery of such services, the contract must “establish policies and procedures for continuation and provision of medication at the time of admission and thereafter, protect the mental and physical health 1[ 19. Even' more signicant as determined of inmates.” by an appropriate evaluation, which will ILL § ‘801 (f). to our analysis is our recognition that the provision healthcare to incarcerated persons is one of those rare instances in which the upon the government an afrmative of Constitution imposes duty to care for and protect individuals. DeShanev v. Winnebago .Ctv. Dept. of Soc. Servs., 489 U.S. 189, 198 (1989). Where the government takes a person into its custody, the Eighth Amendment obligates it to provide medical care for that person. 2 Indeed, because determining whether. an entity is an instrumentality requires an examination of all relevant aspects of its relationship to the state, the factors considered as part of the functional-equivalency test, although not independently dispositive, may be considered as part of the instrumentality analysis. 9 Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (identifying as basis for this holding longrecognized “common-law View that it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself” (alteration omitted) (quotation omitted». Deliberate indifference to an incarcerated person’s “serious medical needs” is proscribed, and “[t]his is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”- IQ. at 104-05 (footnotes omitted). Thus, courts recognize that “[w]hen a private entity . . . contracts with a [government entity] to provide medical services to inmates, it performs'a function traditionally within the exclusive prerogative ofthe state.” Buckner v. Toro, 1 l6 F.3d 450, 452 1th Cir. (1 1997) I (per curiam). 11 20. Finally, the contract language belies Wellpath’s assertion that it cannot be considered an “instrumentality” because it did not exercise the authority of the state to administer government policy. The DOC craed, in minute detail, policies governing when, Whether, and how Wellpath was to deliver services to persons in custody. Wellpath necessarily exercised the authority of the state in administering these policies on'the DOC’s behalf. Indeed, absent such authority, it is impossible to imagine how Wellpath could have provided care within facilities owned and operated by the DOC to persons in the 11 21. DOC’S exclusive custody. Thus,_we conclude that the language of the PRA is unambiguous: where theistate contracts with a private entity to discharge the "entirety of a fundamental and uniquely governmental obligation owed to its citizens, that entity acts as an “instrumentality” of the State.3 3 Because we conclude that the relevant statutory language is unambiguous, we need not address Wellpath’s contention that two canons of construction auger in favor of the conclusion that public entities are not encompassed within the PRA’ s denition of “public agency.” See 2017 VT 89, 5. However, because these arguments may be briey dispatched, we pause here to do so. Wellpath rst points to the exemption to the PRA’s disclosure requirements at 1 V.S.A. §.317(c)(42), which applies to information which could be used to identify a whistleblower alleging misconduct or illegality on the part of “a public agency, a public employee or ofcial, or m, 10 Where the obligation at hand is less weighty, and the delegation less complete, a differentresult may li'e. But because here, for ve years, Wellpath was the sole means through which the constitutional imperative that the DOC provide healthcare to those it incarcerates was carried out, Wellpath became an “instrumentality” of the state, and was thus subject to the disclosure obligations of the PRA. 11 Wellpath also argues that construing the PM-to extend to entities like itself is the 22. role ofthe'Legislature, and not the Court, because it would necessitate changes throughout the Act “to adapt and rationalize its procedures and clarify their application to private parties.” It proffers several incongruencies which result from construing “instrurnentality” to include Wellpath: the Act indicates that the fee for obtaining a copy of a public record be set by the Secretary of State as to state agencies, and by the governing legislative body after public hearing for political subdivisions, but includes no such requirement for privateentities, see Act provides for appeal to “the head of the agency,” see . § 1 V.S.A. § 316(d), (e); the 318(c)(1); the record schedules pursuant to which entities may diSCard records offer no guidance to private entities, see . §.317a(b); and, nally, the PRA does not include provisions requiring that public entities receive ‘\ a person providing goods or services to a public agency under contract.” (emphasis added). It argues that if “persons or entities” or “companies” providing goods or services to an agency under contract were included in the denition of “public agency,” the latter portion of § 3 1 7(c)(42) would be unnecessary. Although it is true that we presume, in interpreting statutes, that the Legislature inserts language advisedly and does not intend to create surplusage, see Doncaster V. Hane, 2020 VT 22, _ Vt. 229 A.3d 1026, the words “entities” or “companies” do not appear in the 20, statute—in other words, they were inserted by Wellpath, not the Legislature. See 1 V.S.A. § 3 1 7(c)(42). If we were to apply this canon, then, construing the term “public agency” to include Wellpath as an instrumentality of the state Would not render any of the language of § 317(c)(42) surplusage. Second, Wellpath invokes noscitur a sociis—a canon meaning “it is known by its associates”—pursuant to which courts are counseled to seek the meaning of an undened term in light of what follows or precedes it. Vt. Human Rights Comm’n v. Vt. Agmcv of Transn, 2012 VT 45, 1[ 5, 191 Vt. 485, 49 A.3d 149. It arguesthat because “instrumentality” and “authority” appear in a list of entities which are subordinate bodies of state government,~they must be'as well. Even if we were to invoke this canon here, we do not understand it to require that, wherever a statutory list exists and a certain designation can be applied to the majority of the terms within it, all other terms therein must be understood as subject to the same designation, even where their ordinary meaning is not thus conned. 1 1 notice that, in certain circumstances, they may" be subject to its provisions. These concerns are well-taken, and we do not disagree that some incongruencies or administrative difculties inhere as a result of the may Act’s application to instrumentalities like Wellpath. However, weighed [against the plain language of the statute and the Legislature’s forcefully expressed intent that it be interpreted in favor of disclosure, these concerns must yield. It is for the Legislature to resolve such nuances; it is for this Court to interpret the provisions of theAct on appeal in this case in a way that upholds, rather than defeats, the PRA’s plain language and the overriding goal of open govemment—a goal that is nothing less than foundational to our republic. In the words of John Adams, Liberty cannot be preserved without a general knowledge among the people, who have a right . . . and a desire to know; but besides this, they have a right, an independent right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, Imean of the characters and conduct of their rulers. J. Adams, A Dissertation on Canon and Feudal Law (1765). i 11 23. The trial court erred in granting summary judgment for Wellpath because, considering all relevant factors, Wellpath was an instrumentality of the state during the contract period, and thus a “public agency” as that term is dened in the PRA. Because of the trial court’s disposition below, it did not consider whether the requested documents were “public records” within the meaning of the PRA or whether any statutory exemption applied thereto. We therefore leave these questions for its consideration upon remand. Reversed and remanded for proceedings consistent with this opinion. FOR THE COURT: 12