The ruling ends a legal battle that began four years ago, when Illinois Times asked the Illinois Department of Corrections for a copy of a settlement reached in the case of Alfonso Franco, a Taylorville Correctional Center inmate who died of colon cancer in 2012. According to a federal lawsuit filed against Wexford Health Services, a Pennsylvania company that holds a $1.36 billion contract with the state to provide medical care in state prisons, Franco’s deterioration was obvious and his condition treatable if it had been properly and promptly diagnosed. Instead, he languished to the point that he was emaciated and in diapers before he was finally sent to a hospital, where doctors quickly diagnosed late-stage cancer. He died one month later. He was 53. Franco was doing time for a cocaine conviction.
While the newspaper requested just one settlement agreement, Don Craven, attorney for Illinois Times, said that the ruling goes beyond just Franco. “All settlements with medical contractors for state and local governments are in the public purview at this point,” Craven said.
The newspaper lost at the trial court level, when Sangamon County Associate Judge Brian Otwell sided with Wexford, which argued that settlements reached in medical malpractice claims filed by inmates, or their families, were business decisions and so are exempt from the state Freedom of Information Act. But the Fourth District Appellate Court, and the Supreme Court, ruled otherwise, relying on a clause in the state Freedom of Information Act that states any entity that performs a governmental function is subject to the state’s public records law:
“A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt…shall be considered a public record.”
The newspaper argued that providing medical care to inmates is a governmental function and that settlement costs impact taxpayers because the costs of settlements will be built into future contracts for medical care in prisons. Department of Corrections agreed that settlements are public records, but Wexford refused to provide the state with an unredacted copy of the Franco settlement so that it could be provided to the newspaper.
Under state law, defendants who lose FOIA lawsuits must pay plaintiffs’ legal costs. The state was the defendant in the lawsuit, with Wexford given leave to intervene. Although the state agreed with the newspaper that settlements are public records while Wexford made arguments otherwise, Craven said that the state, likely, will foot the newspaper’s legal costs. “I think the answer to the question is, the taxpayers will pay this bill,” Craven said.
Andrew Ramage, who represented Wexford, could not immediately be reached for comment. Lindsey Hess, spokeswoman for the Illinois Department, also could not immediately be reached for comment.
The opinion comes in the midst of litigation by inmates, who say that medical care in prisons has been substandard to the point that it violates their constitutional rights. Last January, the state agreed to settle a class-action lawsuit filed by inmates eight years ago, after court-appointed experts reported health care so poor that deaths resulted. In one case, a nurse determined that a mentally ill inmate who swallowed two sporks would suffer no harm. The inmate died a few months later from gastrointestinal bleeding caused by consuming foreign objects, according to a 2018 report by a court-appointed expert.
The ten-year contract with Wexford worth nearly $1.4 billion expires in 2021, although Alan Mills, director of the Uptown People’s Law Center in Chicago that handles prisoner lawsuits, said that the state can cancel the contract at any time on 30 days notice. Mills said that the state three times has put the contract up for bid, but requests for proposals have been withdrawn due to issues with the state’s procurement policy. Wexford does business in several states. In Florida, the state prison department in 2017 canceled a Wexford contract to provide mental health care to inmates due to concerns about substandard care. Wexford also provides mental health care in Illinois prisons, where inmates have sued alleging poor care. Last year, a federal judge ruled that the Illinois Department of Corrections has violated the constitutional rights of mentally ill prisoners, who have been improperly restrained, put in isolation and fed psychotropic drugs. The ruling came after testimony from a court-appointed expert who said that the state hadn’t lived up to promises to improve care.
Mills, an attorney for inmates in the federal lawsuits alleging substandard care, said that he doesn’t believe the Supreme Court’s ruling mandating disclosure of settlements will impact his litigation. But it will help inmates, or their families, who sue in the future, he predicted.
“In the long term, this will have an impact on the quality of care,” Mills predicted. “What it does do is level the playing field for people who are suing for damages. … Wexford knows what these cases settled for and what the market, so to speak, is. There’s no way plaintiffs were going to know. I think this is vitally important, in order to find out how, in fact, Wexford settles these cases.”
The Supreme Court’s decision, Mills said, goes beyond prisons. Based on Thursday’s ruling, any contractor that performs a governmental function in Illinois must make settlements public, he said.
“The state has privatized all kinds of things,” Mills said. “The child welfare system, which is a mess, is heavily privatized. Ever since Reagan, we’ve been privatizing things. The Supreme Court has said today ‘We’re not going to allow government to eliminate transparency through privatization.’”
The court ruling was a 5-1 decision, with Justice Anne Burke taking no part in the case and Justice Mary Jane Theis dissenting. In her dissent, Theis wrote that the majority made an “unwarranted assumption” that a transaction between private parties qualifies as a public record. She also wrote that the settlement was not made with public funds.
Contact Bruce Rushton at email@example.com