Human Rights Defense Center v. Correct Care Solutions, LLC and Correctional Care Solutions Group Holdings, LLC

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 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.

2021 VT 63

No. 2020-308

Human Rights Defense Center Supreme Court

On Appeal from
v. Superior Court, Washington Unit,
Civil Division

Correct Care Solutions, LLC and June Term, 2021
Correctional Care Solutions Group Holdings, LLC

Robert R. Bent, J.

Robert Appel, Charlotte, and Daniel Marshall, General Counsel & Litigation Director,
Human Rights Defense Center, Lake Worth, Florida, for Plaintiff-Appellant.

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 Office, New England
First Amendment Association, and the American Civil Liberties Union of Vermont.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ.

¶ 1. EATON, J. Between 2010 and 2015, pursuant to a contract with the Vermont

Department of Corrections (DOC), Wellpath LLC1 assumed responsibility for providing medical

care to every person in state custody within Vermont. Under the auspices of Vermont’s Public

Records Act (PRA), plaintiff Human Rights Defense Center (HRDC) requested from Wellpath

any records relating to legal actions and settlements arising from this care. Wellpath declined to

furnish the requested records, arguing that, as a private contractor, it was not subject to the PRA’s

1
At the time, Wellpath was doing business as Correct Care Solutions, LLC; we adopt the
naming convention used in its brief.
disclosure requirements. HRDC brought the instant suit, and the trial court entered judgment 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

health[]care program” 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 2010.

¶ 3. During the five-year period that the contract was in place, Wellpath was responsible

for delivering or procuring all medical care necessary for persons incarcerated in the DOC’s

facilities. This comprehensive range of services encompassed, inter alia, medical assessments,

primary care, infirmary 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.

¶ 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 fine

of up to $500 for a single occurrence.

¶ 5. HRDC, the plaintiff in this case, is a nonprofit organization focusing on public

education and advocacy related to the criminal-justice system. In December 2015, citing

disclosure obligations under the PRA, HRDC sent Wellpath a request for public records relating

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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 subject to the PRA. HRDC sent Wellpath a second records request in December

2017, seeking substantially similar disclosures. Wellpath did not respond.

¶ 6. HRDC then filed this action in the trial court seeking to compel disclosure under

the PRA. The parties filed 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—subject to 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. Dep’t of Health, 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

& Family 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 first factor is generally viewed

as the “cornerstone” of the test. Id. The trial court applied the functional-equivalency analysis

and held that Wellpath was not the functional equivalent of a public agency because the provision

of healthcare is not a government function. On this basis, it granted summary judgment for

Wellpath.

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 ¶ 7. HRDC appeals, maintaining that although the trial court correctly applied the

functional-equivalency test to determine whether Wellpath was subject to the PRA, it erred in

concluding that Wellpath was not the “functional equivalent” of the 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 PRA because it is

unnecessary to our conclusion; rather, we find 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.

¶ 8. We review a trial court’s summary-judgment ruling de novo, applying the same

standard considered below: judgment is entered in the moving party’s favor where it can show that

there is no genuine dispute of material fact and judgment is appropriate as a matter of law. Scott

v. State, 2021 VT 39, ¶ 11, __ Vt. __, __ A.3d __; see also 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 the PRA,

encompassed Wellpath during the five-year period it contracted with the state. See Northfield Sch.

Bd. v. Washington S. Educ. Ass’n, 2019 VT 26, ¶ 13, 210 Vt. 15, 210 A.3d 460 (explaining that

issues of statutory interpretation present questions of law).

¶ 9. In interpreting a statute, our primary aim is to discern and then implement the

Legislature’s intent. Flint v. Dep’t of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. We

begin by looking to the plain meaning of the words the Legislature used. Id. Where that language

is clear and unambiguous, this is also where our inquiry ends: we enforce the enactment according

to those terms. Id. Only where the Legislature’s intent is unclear on the face of the statute do we

resort to other tools of statutory construction. Id.

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 ¶ 10. Accordingly, we turn first to the operative language of the Act. Under the PRA,

“[a]ny person may inspect or copy any public record of a public agency.” 1 V.S.A. § 316(a). The

Act defines “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.” Id.

§ 317(a)(2).

¶ 11. We are guided in our interpretation of this language by the Legislature’s express

statement of the policy which undergirds the Act. See State v. Berard, 2019 VT 65, ¶ 12, n.1, 211

Vt. 39, 220 A.3d 759 (noting that plain language of 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 Vt. 15, 20, 573 A.2d 296, 299 (1990) (commencing interpretation of PRA “with

the statement of legislative intent in the Act”). The PRA’s policy statement provides that

“[o]fficers 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.” 1 V.S.A. § 315(a). It further directs that the provisions of the

PRA “be liberally construed to implement this policy.” Id.

¶ 12. Moreover, the PRA finds 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 from the people, therefore, all officers 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 Caledonian 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

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Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1989))). Thus, “[w]e do not overstate the

case in saying that open access to governmental records is a fundamental precept of our

society.” Shlansky v. City of Burlington, 2010 VT 90, ¶ 12, 188 Vt. 470, 13 A.3d 1075.

¶ 13. With this understanding of the Legislature’s intent, we consider the dispositive

question in this appeal: whether Wellpath is a “public agency” within the meaning of the PRA.

HRDC contends 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 definition of “agency” set

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” of a public agency

because we conclude that it was an “instrumentality” of the DOC during the contract period. See

1 V.S.A. § 317(a)(2). Therefore, it was a “public agency” as that term is defined in the PRA. Id.

¶ 14. 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 governmental 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 subject to disclosure where it was either made

or “received . . . in connection with the transaction of public business” “by a unit or instrumentality

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

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Corporation was an “instrumentality” of Baltimore City, the state’s highest court identified 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 government.” City of Baltimore Dev. Corp. v. Carmel Realty Assocs., 910 A.2d 406, 426-

28 (Md. 2006) (quotation omitted).

¶ 15. Similarly, New Jersey’s public-records act applies to “public agencies,” a term

defined to include an “instrumentality” created by a political subdivision. N.J.S.A. 47:1A-1.1.

The Supreme Court of New Jersey has held that a nonprofit lobbying organization representing

local government interests was just such an instrumentality. Fair Share Hous. Ctr., Inc. v. N.J.

State League of Municipalities, 25 A.3d 1063, 1071-72 (N.J. 2011). Because “instrumentality”

was undefined, the court likewise looked to the dictionary to ascertain its plain meaning. See id.

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 behalf of all [the state’s] municipalities,”

and, as a result, was an “instrumentality” of a political subdivision of the state. Id. (holding that

through inclusion of “instrumentality” in definition, plain language of public-records act “places

the [entity] squarely within the term ‘public agency’ ”). We apply a similar conceptual

framework—looking at all relevant aspects of the relationship between the entity and the state—

and arrive at a corollary conclusion.

¶ 16. We begin by considering the plain meaning of the term “instrumentality.” Where,

as here, statutory language is undefined, we accord the term its “plain and ordinary meaning, which

7
may be obtained by resorting to dictionary definitions.” Khamnei v. Burlington Pub. Works

Comm’n, 2018 VT 19, ¶ 14, 206 Vt. 550, 183 A.3d 1157 (quotation omitted). 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.” Instrumentality, Black’s Law Dictionary (11th ed. 2019). Similarly,

the Merriam-Webster Dictionary tells us that the legal definition of instrumentality is “something

through which an end is achieved or occurs” or “something that 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 Online Dictionary,

https://www.merriam-webster.com/dictionary/instrumentality#learn-more [https://perma.cc/

HQE7-V2VU].

¶ 17. It is undisputed here that, between 2010 and 2015, Wellpath was the sole means

through which the DOC carried out the function of providing medical care to incarcerated persons.

The question of whether this function is fundamentally governmental in nature is important 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 construe the Tennessee Public Records Act liberally in favor of the

fullest 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 authorize nondisclosure of

documents included in employee’s disciplinary file as inconsistent with Legislative mandate to

construe PRA liberally in favor of disclosure, noting it would “allow agencies to avoid disclosure

8
by the simple act of placing a document in a personnel or similar file”). Thus, although we do not

apply the functional-equivalency test here to determine if Wellpath was the functional equivalent

of a public agency, we find that its primary focus on whether the undertaking in question is

fundamentally governmental in nature fits hand-in-glove with our inquiry into whether a private

entity acted as an “instrumentality” of the state.2

¶ 18. 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 specifically, 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, as determined by an appropriate evaluation, which will

protect the mental and physical health of inmates.” Id. § 801(f).

¶ 19. Even more significant to our analysis is our recognition that the provision of

healthcare to incarcerated persons is one of those rare instances in which the Constitution imposes

upon the government an affirmative duty to care for and protect individuals. DeShaney v.

Winnebago Cty. 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.
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Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (identifying as basis for this holding long-

recognized “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.” Id. 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 of the state.” Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997)

(per curiam).

¶ 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 crafted, 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 DOC’s exclusive custody.

¶ 21. Thus, we conclude that the language of the PRA is unambiguous: where the state

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 definition of “public agency.” See Flint,
2017 VT 89, ¶ 5. However, because these arguments may be briefly dispatched, we pause here to
do so. Wellpath first 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 official, or
10
Where the obligation at hand is less weighty, and the delegation less complete, a different result

may lie. But because here, for five 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.

¶ 22. Wellpath also argues that construing the PRA to extend to entities like itself is the

role of the 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 “instrumentality” 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 private entities, see 1 V.S.A. § 316(d), (e); the

Act provides for appeal to “the head of the agency,” see id. § 318(c)(1); the record schedules

pursuant to which entities may discard records offer no guidance to private entities, see id.

§ 317a(b); and, finally, 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 definition of “public agency,” the latter portion of § 317(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, ¶ 20, __ Vt. __, 229 A.3d 1026, the words “entities” or “companies” do not appear in the
statute—in other words, they were inserted by Wellpath, not the Legislature. See 1 V.S.A.
§ 317(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 undefined term in
light of what follows or precedes it. Vt. Human Rights Comm’n v. Vt. Agency of Transp., 2012
VT 45, ¶ 5, 191 Vt. 485, 49 A.3d 149. It argues that 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 confined.
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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 difficulties may

inhere as a result of the 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 the Act on appeal in this case in a

way that upholds, rather than defeats, the PRA’s plain language and the overriding goal of open

government—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, I mean of the characters and conduct of
their rulers.

J. Adams, A Dissertation on Canon and Feudal Law (1765).

¶ 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 defined 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:

Associate Justice

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