Prison Legal News v. Corrections Corp. of Am., No. 332-5-13 Wncv (Bent, J. Jan. 10, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                     STATE OF VERMONT

SUPERIOR COURT                                                                 CIVIL DIVISION
Washington Unit                                                                Docket No. 332-5-13 Wncv

Prison Legal News
       Plaintiff

           v.

Corrections Corporation of America
      Defendant

                                         Decision re: CCA’s Motion to Dismiss

       This suit was brought by Plaintiff Prison Legal News (PLN) seeking an order
compelling Defendant Corrections Corporation of America (CCA) to comply with PLN’s
request for public records under Vermont’s Access to Public Records Act, 1 V.S.A. §§
315–320. CCA confines certain Vermont prisoners in out-of-state facilities under
contract with the Vermont Department of Corrections (DOC). CCA seeks dismissal of
this case arguing that, as a private entity, it is not subject to the Act. PLN opposes
dismissal arguing that CCA is subject to the Act as the functional equivalent of a public
agency. PLN is represented by the ACLU Foundation of Vermont through Dan Barrett,
Esq. CCA is represented by Jennifer Mihalich, Esq.

       CCA has stipulated to this court’s personal jurisdiction over it. Its dismissal
motion is asserted under both Rules 12(b)(1) (lack of subject matter jurisdiction) and
12(b)(6) (failure to state a claim). The court held an evidentiary hearing the scope of
which was narrow and intended to allow the court to learn more about CCA. PLN
objected to the hearing. The objection is moot. The parties have presented to the court
and fully briefed a pure issue of law that the court now decides based on the allegations
of the complaint and its attachments.1 The question is whether the Act applies to CCA.
CCA has asserted that if the Act applies to it, then certain exemptions from access also

1
  CCA’s motion is probably better characterized as arguing a failure to state a claim rather than a lack of subject
matter jurisdiction. Theoretically, the court could deny the motion simply to let a novel claim unfold. However, the
issue is fully briefed, purely legal, and both parties ask the court to decide it. PLN’s complaint (with attachments)
paint a clear picture of CCA’s role vis-à-vis Vermont prisoners and the DOC, and CCA does not suggest that the
record needs development before the legal question may be answered. There is no reason to not address it now.
may apply to the particular records requested. 1 V.S.A. § 317(c) (listing numerous
exemptions from public access). That matter is not before the court at this time.

                                       Background

        PLN is “a nationwide, monthly publication dealing with prisoner rights, prisoner
litigation, and prison conditions.” It is published by the Human Rights Defense Center,
which is headquartered in West Brattleboro, Vermont. CCA is a for-profit, publicly
traded Maryland corporation headquartered in Tennessee in the business of operating
prisons.

       CCA has entered into a contract with the DOC by which it has been and is
required to undertake numerous prison-related services for the DOC in relation to the
Vermont prisoners sent to it. These include inmate “care and treatment; furnishing
subsistence and all necessary routine medical care; providing for their physical needs;
making programs of training and treatment consistent with inmates’ needs available;
retaining the inmates in safe, supervised custody; maintaining proper discipline and
control; [and] making certain that sentences and orders of the committing court . . . are
faithfully executed.” Complaint ¶ 12. The contract itself spells out in more detail what
responsibilities CCA undertakes with respect to Vermont inmates. In short, CCA has
contractually bound itself to be an out-of-state jailor for the State of Vermont. There is
no meaningful distinction between what CCA does under contract for Vermont prisoners
sent out-of-state and what the DOC does for in-state prisoners.

        It is clear that, while housed in a CCA facility, Vermont prisoners are subject to
the daily control of CCA, not the DOC. See generally Attachment “G” (Inmate Housing
Agreement) to the Contract between CCA and the DOC. CCA is required to provide
information to the DOC about the prisoners while in CCA’s care, including disciplinary
activity, grievances, inmate injuries, escapes or deaths, UA results, results of a required
“shakedown” program, prison rape statistics, and other information about the inmates. It
is also required to keep the DOC notified of lawsuits filed by Vermont inmates. “It is
required to notify the state ‘within 10 days of receiving any claim for damages, notice of
claims, pre-claims, or service of judgments or claims, for any act or omission’” occurring
in the performance of the contract. Complaint ¶ 18.

       Other aspects of the contract include the following. Payment for prison bed space
is based on a daily rate of, currently, approximately $65 per day for the Lee Adjustment

                                             2
Center facility in Beattyville, KY and about $72 per day at the Florence Correctional
Center. App. E 26. CCA must maintain a grievance policy and, for grievances to the
warden or higher authority, the DOC is allowed input. Copies of all grievances (formal
and informal) are provided to the DOC. App. E 24. CCA has physical control and the
power to exercise disciplinary authority over all inmates subject to a delineated
reasonableness standard. App. E 22–23. Vermont inmates are intended to be kept
together at the Lee Adjustment Center although they may be housed with non-Vermont
inmates. App. E 17. Vermont inmates shall not be relocated from Lee so long as the
DOC uses at least 95% of an allocated 400 beds on a continual basis. App. E 18. The
Vermont Staffing Pattern references 550 Beds for Vermont Inmates at Lee. App. E 51.
The court’s understanding is that Lee currently houses Vermont prisoners only and CCA
is looking to fill additional space with inmates from elsewhere.2 The Florence facility
has a 40-unit pod available for higher security level Vermont prisoners. App. E 17. It
has a capacity of 1,900 beds, 1,860 of which are used for federal prisoners. App. E 47.
CCA and the DOC have agreed that CCA is an independent contractor and “Neither
[CCA] nor any agent or employee of [CCA] shall be or shall be deemed an agent or
employee of the State of Vermont.” App. E 43.

      Taking the position that CCA is subject to Vermont’s Access to Public Records
Act, PLN sent a letter dated September 10, 2012 to CCA requesting the following:

        All records related to any payments made by any entity to any claimants or
        their attorneys pursuant to judgments against, or settlements with, the State
        of Vermont (or any of its agencies) and/or [CCA] in connection with
        services provided to the [DOC] by CCA. Your response should include,
        but not be limited to: (a) for each judgment and/or settlement, the most
        recent claim or complaint or amended complaint detailing the legal
        demand; (b) all settlement agreements, releases and documents related to
        disbursement of settlement funds; (c) any record of the imposition of
        sanctions by a court, and payment thereof; and (d) if payment was made
        pursuant to a judgment, the jury verdict and/or findings of fact and
        conclusion of law forming the basis for the judgment.

Complaint ¶ 23 (filed May 31, 2013). Taking the position that it is not subject to the Act,
CCA did not respond to PLN’s request. PLN “appealed” in writing to CCA’s general

2
  The maximum potential number of prisoners at Lee is unknown, but it is apparent that Lee may house inmates
from other jurisdictions.

                                                       3
counsel, which also did not respond. PLN then filed this suit.

       CCA seeks dismissal arguing that it is a private entity, not a public agency subject
to the Act. PLN asserts that CCA has assumed the role of a public agency within the
meaning of the Act by substituting itself for the DOC in the housing and care of Vermont
prisoners. In this litigation, PLN seeks a declaration that CCA is subject to the Act and
the requested records are public records, an order requiring production of those records,
and legal fees pursuant at 1 V.S.A. § 319(d)(1).3

                                                       Analysis

       The Access to Public Records Act reflects the strong policy preference for the
“free and open” examination of public records. 1 V.S.A. § 315. It is based on the
“fundamental principle of open government that public officials ‘are trustees and servants
of the people and it is in the public interest to enable any person to review and criticize
their decisions.’” Price v. Town of Fairlee, 2011 VT 48, ¶ 13, 190 Vt. 66 (quoting 1
V.S.A. § 315). The Act “shall be liberally construed to implement this policy.” 1 V.S.A.
§ 315.

        The fundamental right and duty that are the heart of the Act appear in 1 V.S.A. §
316(a): “Any person may inspect or copy any public record of a public agency.” A
public record is “any written or recorded information . . . which is produced or acquired
in the course of public agency business.” 1 V.S.A. § 317(b). A public agency is “any
agency, board, department, commission, committee, branch, instrumentality, or authority
of the State or any . . . political subdivision of the State.” Id. § 317(a)(2).

        CCA takes a literalistic, categorical approach to the definition of public agency.
In its view, the definition of “public agency” describes several discrete types of entities
all of which have traditional, formal governmental meanings. It, on the other hand, is a
private entity to which none of those concepts apply, at least when narrowly construed.
The Act, it concludes, thus does not apply to it. It also suggests that certain procedural
aspects of the Act also do not fit a private entity such as itself, ostensibly confirming that

3
  The attorney fee provision appears at 1 V.S.A. § 319(d)(1). It is intended to encourage agencies to respond to
records requests promptly and properly and to eliminate any inducement to wrongly withhold publicly accessible
information from those who are unable to afford an attorney or otherwise compel production. It does not in any way
appear to be intended to surprise a private entity that reasonably did not know that it is subject to the Act in the first
place with the burden of a potentially quite significant financial loss. The court is highly doubtful that it could be
reasonably interpreted to apply to the litigation of this case thus far. However, the parties have not briefed the
applicability of the fee provision so the court will not now determine its scope.

                                                            4
the legislature did not intend the definition of public agency to extend to private entities.

        PLN broadly construes the definition of “public agency” to include some private
entities, such as CCA, as instrumentalities of the State (or authorities of it). More
generally, PLN argues that the definition of “public agency” is broad enough to include
both traditional governmental entities as well as private entities to the extent that they
have undertaken roles revealing them as the functional equivalent of public agencies.

       CCA’s argument has some appeal on its face. If accepted, however, it would have
an anomalous and disturbing consequence: 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.4

       The collision between the trend toward outsourcing (contracting out)
governmental functions to the private sector and the fundamental importance of “right to
know” laws is not completely uncharted territory. See generally Craig D. Feiser,
Protecting the Public’s Right to Know: The Debate Over Privatization and Access to
Government Information under State Law, 27 Fla. St. U. L. Rev. 825 (2000) (briefly
describing the conflict between privatization and public accountability and classifying
numerous approaches taken by different courts). The collision presents particularly acute
issues in the case of outsourcing such uniquely governmental functions as the
imprisonment of inmates.5 See generally Stephen Raher, The Business of Punishing:
Impediments to Accountability in the Private Corrections Industry, 13 Rich. J.L. & Pub.
Int. 209 (2010) (describing the history of privatized prisons and some of the
complications arising out of the non-governmental status of such operators, including, at
236–47, impediments to transparency).

       The concept of functional equivalence in the public records context emerged in
federal cases in the 1970s, including Washington Research Project, Inc. v. Dep’t of
4
 Interest in governmental transparency and accountability obviously preceded the wave of legislative “right to
know” enactments across the country in the 1970s, including the adoption of Vermont’s Access to Public Records
Act in 1976. 1975, No. 231 (Adj. Sess.). One can only speculate as to how the common law (or constitutional law)
would have developed by now had legislatures never so acted. What seems clear enough is that the interest in
governmental transparency has only become more intense over the years while the broad legitimacy of that interest
has become bedrock to the very structure of American government itself.
5
 The issues would seem to be as acute in the context of the involuntary hospitalization of mentally ill patients in
privately operated facilities.

                                                           5
Health, Educ. & Welfare, 504 F.2d 238 (D.C. Cir. 1974). In Washington Research
Project, in pertinent part, the court needed to determine under FOIA whether certain
requested records were subject to disclosure as the final opinions of an agency or not
subject to disclosure as intra-agency memoranda. Id. at 245. To do so, it needed to
determine whether independent research groups (IRGs) to which the National Advisory
Mental Health Council had referred grant applications for consideration was an “agency.”
The definition of agency at issue included “each authority of the Government of the
United States, whether or not it is within or subject to review by another agency.” Id.
The court explained that “The generality of this definition” necessitated “an elaboration
along more functional lines than the phrase ‘each authority’ conveys,” but that “any
general definition can be of only limited utility to a court confronted with one of the
myriad organizational arrangements for getting the business of the government done.”
Id. at 246–47. “The unavoidable fact is that each new arrangement must be examined
anew and in its own context.” Id. at 247. The court characterized the IRGs as
consultants and explained that they could not be elevated “to the status of the agency for
which they work unless they become the functional equivalent of the agency.” Id. at 248.
On the facts at hand, the court concluded that the IRGs were not the functional equivalent
of the agency.

        In Board of Trustees of Woodstock Academy v. Freedom of Information
Commission, 436 A.2d 266 (Conn. 1980), the Connecticut Supreme Court had to
determine whether a “nominally private corporation which serves a public function may
be considered a public agency for purposes of” Connecticut’s public records act. Id. at
269. The Court rejected the “formalistic arguments of the sort advanced by the plaintiff
who seeks to make determinative the academy’s nominal status as a private nonstock
corporation.” Id. at 270. Instead, it sifted federal “functional equivalency” cases,
including Washington Research Project, to isolate the following factors for analysis: “(1)
whether the entity performs a governmental function; (2) the level of government
funding; (3) the extent of government involvement or regulation; and (4) whether the
entity was created by the government.” Id. at 270–71. The Court emphasized that “A
case by case application of the factors noted above is best suited to ensure that the general
rule of disclosure underlying this state’s FOIA is not undermined by nominal appellations
which obscure functional realities.” Id. at 271. Ultimately, it concluded that, on the facts
presented, the Academy was the functional equivalent of a public agency for access-to-
public-records purposes.

       On different facts, the Connecticut Court revisited the subject matter in

                                             6
Connecticut Humane Society v. Freedom of Information Commission, 591 A.2d 395
(Conn. 1991). The Court rejected the intermediate court’s analysis, which required the
presence of all factors isolated in Woodstock Academy. It explained instead that “All
relevant factors are to be considered cumulatively, with no single factor being essential or
conclusive.” Id. at 397 (quoting Railway Labor Executives’ Assn. v. Consolidated Rail
Corporation, 580 F.Supp. 777, 778 (D.D.C. 1984)). The society performed a
governmental function in one sense. Connecticut Humane Society, 591 A.2d at 399.
However, other circumstances did not fit to reveal it as the functional equivalent of a
public agency.

        The Tennessee Supreme Court picked up on this line of authority in Memphis
Publishing Co. v. Cherokee Children & Family Services, 87 S.W.3d 67 (Tenn. 2002).
The Court described the relevant issue presented as having “enormous significance”:
“whether a non-profit corporation that provides privatized services to a governmental
entity is subject to the public access requirements of the Tennessee Public Records Act.”
Id. at 70. Cherokee operated as a “‘brokering agency’ that screened applicants and
assisted eligible applicants in locating approved child care providers” under contract with
the State. Id. at 71. The basic insight of the Tennessee Court is this:

       [T]he public’s fundamental right to scrutinize the performance of public
       services and the expenditure of public funds should not be subverted by
       government or by private entity merely because public duties have been
       delegated to an independent contractor. When a private entity’s
       relationship with the government is so extensive that the entity serves as the
       functional equivalent of a governmental agency, the accountability created
       by public oversight should be preserved.

Id. at 78–79. The Cherokee Court thus adopted the functional equivalency analysis (and
four factors) described in the Connecticut cases. Id. at 79. It added, however, that the
first factor—public function—is the most important.

       The cornerstone of this analysis, of course, is whether and to what extent
       the entity performs a governmental or public function, for we intend by our
       holding to ensure that a governmental agency cannot, intentionally or
       unintentionally, avoid its disclosure obligations under the Act by
       contractually delegating its responsibilities to a private entity.



                                             7
Id. On the facts presented, the Court concluded that Cherokee was the functional
equivalent of a governmental agency and thus subject to public disclosure requirements.

        A subsequent case before the Tennessee Court of Appeals is of particular interest.
In Friedmann v. Corrections Corp of America, 310 S.W.3d 366 (Tenn. Ct. App. 2009),
the court concluded that CCA’s operation of certain Tennessee prisons made it the
functional equivalent of a governmental agency and thus subject to public disclosure
laws. The plaintiff, Alex Friedmann, at least at the time, was an associate editor of Prison
Legal News, presumably the same Prison Legal News that is the plaintiff in this case.
Friedmann did not particularly advance the state of the law on functional equivalency
and, factually, the case has wrinkles not present here. However, Friedmann is significant
to the extent that the court based its functional equivalency analysis nearly exclusively on
the governmental function factor. See id. at 375 (“With all due respect to CCA, this
Court is at a loss as to how operating a state prison could be considered anything less
than a governmental function.”), 376 (“In short, we conclude, without difficulty, that . . .
CCA is operating that facility as the functional equivalent of a state agency pursuant to
the analysis set forth in Cherokee.”). “The providing of prisons is a responsibility that
the State cannot delegate to a private entity. While the State can contract with a private
entity such as CCA to operate a prison . . ., the ultimate responsibility to provide for its
prisoners belongs to the State.” Id. at 376; see also id. at 379 (extending the same
analysis to other prisons CCA operates for county or other local Tennessee governments).

        Particularly with these authorities in mind, the court does not find the operative
language of Vermont’s Access to Public Records Act so obvious as CCA does. On its
face, the definition of “public agency” is self-contained; it does not expressly refer to
other defined terms. “Public record,” however, expressly includes the expression “public
agency”: a public record is “any written or recorded information . . . which is produced
or acquired in the course of public agency business.” 1 V.S.A. § 317(b) (emphasis
added). The concepts thus are intrinsically tethered together; they give each other
meaning. A public record is not simply one produced by a public agency (which would
place the emphasis on the entity), it includes any record produced in the course of agency
business (focusing attention on the nature of the undertaking). The definition of public
agency does not appear to be intended as a limitation on the meaning of “public record.”
It does not draw distinctions between agencies subject to the Act and agencies not subject
to the Act. It attempts instead to inclusively describe entities that routinely produce or
acquire public documents in the course of their business. It thus has a functional
component. The fundamental question, then, is whether any particular entity sufficiently

                                             8
produces or acquires public documents in the course of its business or, more simply,
whether the entity sufficiently undertakes agency business to be considered subject to the
Act.

        CCA argues, however, that other parts of the Act clearly do not apply to a private
entity such as itself and that this reflects the legislature’s intent to not so apply the Act.
CCA argues, for instance, that the Act is designed to allow the review and criticism of the
decisions of governmental officers whereas its employees are not governmental officers.
The Act contemplates that a member of the public may walk into an agency’s Vermont
office to inspect records whereas it has no such Vermont office. The Act contemplates
that fees associated with responding to requests are set by the Secretary of State (in the
case of State agencies) and are deposited in the general fund. Political subdivisions may
set fees only after a public hearing. All of these, CCA argues, are concepts that do not
apply to private entities. Moreover, it has no “head of the agency” to which an appeal
may be taken. According to CCA, these and other provisions of the Act make clear that
the legislature did not intend the Act to apply to a private entity.

        The court is not persuaded by this argument. None of the provisions to which
CCA cites in any apparent way is intended to modify the definitions of “public agency”
and “public record” or limit the right and duty broadly expressed in 1 V.S.A. § 316(a). If
anything, to the extent that those provisions do not meaningfully apply to CCA, they may
indicate that the legislature did not expressly contemplate the Act’s applicability to a
private entity when the statute was enacted. This would not be surprising considering the
immature state of governmental outsourcing in the 1970s. However, the fact that a
statute applies “in situations not expressly anticipated by” the legislature merely
“demonstrates breadth.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 499 (1985)
(quoting Haroco, Inc. v. American Nat. Bank and Trust Co. of Chicago, 747 F.2d 384,
398 (7th Cir. 1984)). It does not limit the reach of the statute. Here, the Act may simply
include provisions that do not apply in this context.6 It does not, however, depend on
those provisions for its meaning.

       The court predicts that the Vermont Supreme Court, to the give the Act the
meaning it is intended to have, would construe it to reach private entities that are the
functional equivalent of a public agency and the records that are within the scope of that
equivalency. The court further predicts that it would adopt a functional equivalency test
along the lines of the analysis that has developed in Connecticut and Tennessee. The

6
    Whether this is actually so with regard to any particular provision is not now at issue.

                                                              9
court thus adopts that analysis for purposes of this case. The question then becomes
whether CCA is the functional equivalent of a public agency subject to the Act in the
circumstances of this case. The non-exclusive factors are: (1) whether the entity
performs a governmental function; (2) the level of government funding; (3) the extent of
government involvement or regulation; and (4) whether the entity was created by the
government.

        CCA operates 60 facilities nationwide. The bulk of Vermont inmates are at the
Lee Adjustment Center in Kentucky. Currently, that facility houses Vermont inmates
only. However, it has capacity for others and the court presumes that CCA would house
inmates from other governmental jurisdictions. In the Friedmann case, CCA was
operating prisons for the State of Tennessee and other local governmental entities and all
of the prisons apparently were located in Tennessee. It is not clear to the court, however,
that the Kentucky location of the facility housing Vermont inmates is particularly
material to the analysis. There is no question that the court has personal jurisdiction over
CCA: CCA has stipulated to it.

       Vermont’s payments to CCA are based on a per diem charge. They cover housing
in a CCA prison, food, clothing, security, heat, utilities, insurance, etc. Vermont did not
create CCA and CCA is by no means wholly dependent on Vermont. Vermont provides
one income stream to CCA against which CCA pays expenses and draws whatever profit
it enjoys. CCA presumably would carry on its business without Vermont’s business. On
the other hand, in absolute terms, the amount of public funds paid to CCA annually is
significant, many millions. According to the complaint, the DOC has paid CCA well
over $70 million since 2007.

      CCA does not enjoy any governmental immunity and under its contract with the
DOC it is required to indemnify the State for claims against the State stemming from its
housing of Vermont prisoners.

        The Vermont Department of Corrections has the contractual authority to closely
monitor CCA’s actions with its inmates. The contract between CCA and Vermont
establishes standards of care of the inmates. App. E 22–23. The DOC is required to be
notified of all significant discipline of prisoners as well as injuries to them and claims
made by prisoners. While the day-to-day operation of the jail is given over to CCA, it is
clear enough that Vermont is heavily involved in non-mundane details (which include the
details sought by the PLN).

                                             10
        Together, the circumstances above are not sufficient to persuade the court that
CCA is the functional equivalent of a public agency for purposes of the Access to Public
Records Act. However, the “cornerstone” of the analysis is the first factor—whether and
to what extent the entity performs a governmental or public function. 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. 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.

      The DOC’s fundamental purpose is set forth in 28 V.S.A. § 1(a):

      The [DOC] . . . shall have the purpose of developing and administering a
      correctional program designed to protect persons and property against
      offenders of the criminal law and to render treatment to offenders with the
      goal of achieving their successful return and participation as citizens of the
      state and community, to foster their human dignity and to preserve the
      human resources of the community.

The DOC is authorized to contract with third parties to assist in the exercise of its
functions, including the placement of Vermont prisoners in out-of-state prisons. 28
V.S.A. §§ 101(8), 102(b)(5), 102(c)(20). The DOC is not, however, authorized to
delegate away its responsibility. 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.

      The transparency and public accountability provided by the Access to Public
Records Act attends the relationship between CCA and the DOC.




                                            11
                                         Order

      CCA’s motion to dismiss is denied. This case is to be scheduled for a status
conference to determine what further proceedings are required.

      Dated at St. Johnsbury, Vermont on January 9, 2014.


                                                 _____________________
                                                    Robert R. Bent,
                                                       Judge




                                           12
