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PLN public records suit against CCA in Vermont mentioned

Associated Press, Dec. 14, 2015.
Lawsuit targets Vt. health tech contractor
THE Associated Press | December 14,2015

MONTPELIER — In the past six years, more than $85 million in government money has been spent to develop information technology used in Vermont’s health care system in an effort to enable providers to share patient medical records.

But when one citizen-advocate tried to scrutinize how the money was being spent, he ran into a barrier. Stephen Whitaker was told that because much of the work was being done by a private, nonprofit state contractor he could not use the state’s public records law to gain access to its records.

A state report issued in September showed that the contractor, Vermont Information Technology Leaders, got about $29 million, more than a third of the total spent on health IT.

Whitaker, long a critic of the state’s handling of computer networks and telecommunications issues, wanted to ask: When the state hires a contractor to perform a government function like managing medical records, who owns the data? And if the contractor goes out of business, what then?

Whitaker put the question to the nonprofit, Vermont Information Technology Leaders, asking in part of his public records request for “email and documents discussing and detailing intellectual property ownership of data” linking the state, VITL and a subcontractor called Medicity.

Robert Gibson, VITL’s vice president for marketing and business development wrote to Whitaker on Dec. 1, saying that as an independent nonprofit, the company is “not subject to the Public Records Act.”

Whitaker sued in Washington Superior Court this past week. And he’s getting support, at least in principle, from Vermont Secretary of State Jim Condos, who frequently advises state agencies, towns and other public entities on public records issues.

“The public still has a right to know what its government is up to, even when government services are outsourced,” said an email from Condos’ office in response to an inquiry from The Associated Press.

Gibson confirmed in an interview that he had written to Whitaker that VITL was not subject to the public records law. He said VITL does provide ample information to state officials, including the Green Mountain Care Board, which regulates health care.

No one at VITL had seen a copy of the suit, Gibson said Friday.

“I believe we’ve met all of our obligations for providing information to the public,” he said.

Both Whitaker and Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said there’s legal precedent for the point of view espoused by Condos.

Prison Legal News, a national newsletter based in West Brattleboro, sued with the ACLU’s help after it was denied in a public records request to Corrections Corporation of America about its management of Vermont inmates it then housed under contract with the state.

The case was settled without going to a full trial, after Judge Robert Bent of the Washington Superior Court denied CCA’s request that he dismiss it.

Allowing state contractors to evade the public records law, the judge wrote, “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 law is designed to protect.”


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