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PLN wins Vermont public records suit against CCA

Rutland Herald (VT), Nov. 8, 2015.

Lawsuit opens state contractors’ records

By Josh O’Gorman
VERMONT PRESS BUREAU | November 07,2015

A recent settlement closes the final chapter in a long-running court case that means documents produced by a private company that does business with Vermont are subject to the state’s public records law.

After a three-year legal battle, the American Civil Liberties Union of Vermont has reached a financial settlement with a private prison provider in a case in which a judge concluded that records the provider produced during its service for the state are subject to Vermont’s Public Records Act.

“Vermont is essentially contracting out more and more government service work, and the question of access to records these contractors hold for the work they are doing for the government — the question will become more germane as people hold the government accountable,” said Allen Gilbert, executive director of the Vermont chapter of the ACLU.

The private company is Corrections Corporation of America, which court documents refer to as a “for profit, publicly traded Maryland corporation headquartered in Tennessee in the business of operating prisons.”

From 2007 until early 2015, Vermont contracted with CCA to house some of the state’s prisoners, with several hundred held at a private facility in Kentucky.

In 2012, Prison Legal News, a monthly publication dealing with prisoner rights published by the Human Rights Defense Center in West Brattleboro, filed a public records request with CCA, looking for documentation of any money spent related to settlements or judgments against Vermont in relation to the services CCA provided.

Court records state the company did not respond to the request, and in 2013, the ACLU of Vermont sued CCA on behalf of Prison Legal News, arguing the company’s records related to its work for the state should be subject to Vermont’s Public Records Act. That law defines a public record as “any written or recorded information ... which is produced or acquired in the course of public agency business.”

Court records indicate CCA argued it was not subject to the public records law because it is not a public entity and that the point of the law was to hold government officials responsible, which it said didn’t apply to the company because there were no government officials with CCA.

In a 12-page decision, Superior Court Judge Robert Bent wrote that exempting private companies that do business with the state from the Public Records Act could lead to less governmental transparency.

“It would 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 Act is designed to protect and that has become a normalized quality and function of government,” Bent wrote.

“CCA holds Vermonters in captivity; disciplines them; pervasively regulates their liberty, and carries out the punishment imposed by the sovereign,” Bent continued. “These are uniquely governmental acts. CCA could have no lawful basis for such an undertaking except on authority of a government. The governmental function factor clearly elevates CCA, to the extent of its involvement in the imprisonment of Vermonters, to the status of a public agency under the Act.”

That ruling was issued in 2014, but the lawsuit dragged on for another year because the ACLU of Vermont and Prison Legal News sought money for the costs incurred in the lawsuit. This week all sides reached a settlement that will avoid additional litigation.

“The public needs to know how prisoners are treated, and to understand how the private prison industry works,” said Paul Wright, editor of Prison Legal News. “By seeing documents showing settlements with injured prisoners, Prison Legal News can report on the ways in which Vermont prisoners are injured at CCA facilities, and how much CCA is willing to pay for its conduct.”

Gilbert said the court ruling could open up other private companies that contract with the state to increased scrutiny.

“This will allow us to look at the work being done by private contractors, if this is the most efficient and effective way for the government to carry out its work,” Gilbert said.

CCA did not respond to a request to comment for this story.


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