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HRDC files public records suit against GEO Group in Vermont

VT Digger, Aug. 15, 2018. https://vtdigger.org/2018/08/15/battle-brews-ac...

Battle brews over access to private prison records

The nonprofit human rights group, which is the parent organization to the national monthly publication Prison Legal News, argues in its lawsuit that while the GEO Group is a private company it is still subject to the state’s Public Records Act.

That’s because by contracting with the state Department of Corrections to house and care for Vermont prisoners, the GEO Group acted as a “public agency,” the lawsuit states.

The organization is seeking records related to lawsuits and other claims brought by Vermont inmates while housed at the GEO Group facility in Michigan.

The GEO Group, according the lawsuit, has refused to respond to the request.

“By failing to provide HRDC with copies of public records, GEO Group has contravened the Public Records Act,” the filing stated.

Burlington attorney Joseph Farnham, representing GEO Group, was out of the office Wednesday and could not be reached for comment.

In an answer to the lawsuit and the allegation that the company “has contravened” the state’s public records law, Farnham wrote, “Plaintiff makes a legal conclusion here, which may be litigated in this action, therefore disputed.”

It’s not the first time the issue of whether a private prison company contracted with the state to house inmates out of state is subject to Vermont’s Public Records Act.

The Human Rights Defense Center, then joined by the American Civil Liberties of Vermont, brought a separate lawsuit against a different private prison company, Corrections Corporation of America, in 2013.

At the time, CCA was housing hundreds of Vermont’s out-of-state inmates in its facilities in Kentucky and Arizona.

In that case, CCA moved to throw the lawsuit out of court; however, Judge Robert Bent, then presiding in Washington County Superior Court, denied that motion, writing, “Imprisonment is one of the most intrinsically governmental of functions.”

“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. It is no ordinary government contractor.”

A settlement of the lawsuit was ultimately reached between the parties in 2015, with CCA agreeing to provide the records, though they were subject to exceptions under the Public Records Act, such as an individual’s health records.

Robert Appel, who formerly headed Vermont’s Human Rights Commission, is serving as local counsel for the Human Rights Defense Center in the most recent lawsuit.

“My understanding is there’s case law in Vermont that says if you are contracted to provide a state service you are covered by the Public Records Act,” Appel said Wednesday. “The public records request wasn’t responded to, so the next step was to file the lawsuit.”

He referred additional questions to lead counsel in the case, Deborah Golden of the Human Rights Defense Center in Washington, D.C. Golden couldn’t be reached Wednesday for comment.

Jay Diaz, a staff attorney with the Vermont chapter of the American Civil Liberties Union, said Wednesday that while lower courts in the state have decided that such records are considered public documents under the law, the Supreme Court has yet to rule on the matter.

Diaz said he believed the state’s highest court would rule that those records are considered public documents.

“State and local government can’t thwart the public records act by simply having private entities do traditional government functions,” he said.

When the state’s contract with GEO Group came to a close more than a year ago, Vermont’s out-of-state inmates were moved to Pennsylvania’s State Correctional Institution at Camp Hill.

However, Vermont is now seeking a new out-of-state prison contractor, with state officials saying they have not been happy with the treatment of inmates at the Camp Hill facility.

Vermont prisoners have raised concerns about their treatment at Camp Hill, particularly when it comes to health care. A prisoner suffering from terminal lung cancer was not provided with palliative care, and at least two inmates have died there since last fall.

Lisa Menard, Vermont Department of Corrections commissioner, said in email Wednesday that she had not seen the recent public records lawsuit and couldn’t comment on the matter.

She did say the state is currently in contract negotiations to provide Vermont inmates out-of-state housing.

The state, she said, received two bids.

“We anticipate an October move,” Menard added. “As the negotiations are active I can’t comment further on that.”

According to the public records lawsuit brought by Human Rights Defense Center, the organization’s focus is on “public education, prisoner education, and outreach in support of the rights of prisoners.”

One of the magazines its publishes, Prison Legal News, reports on news and litigation concerning prison facilities, the lawsuit states. The publication is delivered to more than 9,000 people in all 50 states, according to the filing, and its website receives 100,000 visitors a month.