Mary Jane Theis
Mary Jane Theis
Robert R. Thomas
Robert R. Thomas

A wrongful-death settlement with an private Illinois prison contractor is a public record for the purposes of the state’s Freedom of Information Act, the Illinois Supreme Court ruled last month.

Bruce Rushton, a reporter for the Springfield-based Illinois Times newspaper, asked the Illinois Department of Corrections for a copy of the settlement with Alfonso Franco’s estate after Franco died of cancer while incarcerated at Taylorville Correctional Center in 2012.

Rushton sued the state in April 2017, almost two years after his initial FOIA request. Wexford Heath Services, which contracts with the Corrections Department to provide medical care to inmates, refused to give the department an unredacted copy.

According to Rushton’s 2015 report, Wexford paid the Franco estate $800,000.

The Supreme Court held in its 5-1 decision on Dec. 19, that the settlement agreement with Wexford is a public record because it “directly relates to the governmental function,” as defined by Section 7(2) of the state FOIA law. 

In its 18-page opinion, the majority stressed that Section 7(2) of FOIA “ensures that governmental entities must not be permitted to avoid their disclosure obligations” by delegating their duties to a private contractor, Justice Robert R. Thomas wrote.

He was joined by Justices Thomas L. Kilbride, Rita B. Garman, Lloyd A. Karmeier and P. Scott Neville Jr. in the majority. Chief Justice Anne M. Burke did not take part in the decision.

Justice Mary Jane Theis argued in her dissent that the settlement agreement does not “directly relate” to the medical services that Wexford provided to inmates because “the settlement agreement was not on behalf of the Illinois Department of Corrections.”

“Indeed, in a pleading before the circuit court, the DOC clarified that neither it nor its employees were involved in the decedent’s case. Rather, Wexford, through its insurer, chose to settle a lawsuit brought by the decedent’s estate,” Theis wrote in her dissent. “The settlement agreement may have a tangential relationship to Wexford’s performance of a governmental function, but that does not suffice to make it a public record under [S]ection 7(2).”

Theis also argues that the use of public funds is a main justification for requiring disclosure because “the public has a right to know how the public body has spent public resources.”

In this case, Theis argued “[t]hat justification does not apply here.”

Springfield-based attorney Donald M. Craven, who represented Rushton and the Illinois Times, said his clients felt strongly the agreement should be considered a public record.

“And after six years of [litigation] the court agreed with us,” said Craven, of Donald M. Craven, P.C.

Wexford maintained the agreement was not subject to FOIA, and the company intervened in the lawsuit in  Sangamon County Circuit Court after Rushton sued in August 2015.

Sangamon County Associate Judge Brian T. Otwell agreed with Wexford, finding “that the settlement agreement is a business decision that is not directly related to its provision of medical services for the DOC,” according to the Illinois Supreme Court’s decision issued Dec. 19.

The 4th District Appellate Court reversed Otwell’s decision on appeal in January 2019, finding the agreement is a public record because it “involved the settling of a claim arising out of its rendering of medical care,” Justice Robert J. Steigmann wrote on behalf of the panel.

Section 7(2) of the state FOIA law states: “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 under this [a]ct, shall be considered a public record of the public body, for purposes of this [a]ct.”

The majority framed the question before the court as “whether Wexford has contracted with the DOC to perform a governmental function on its behalf and, if so, whether the requested settlement agreement directly relates to that governmental function.”

The court majority noted that the Franco estate’s underlying complaint filed against the department pertained to the health care Franco received as an inmate.

“Thus, the question may be stated as whether the settlement of a claim that an inmate died from inadequate medical care directly relates to the provision of medical care to inmates,” Thomas wrote.

Theis’ dissent argued the question improperly conflates the settlement agreement with the subject matter of the estate’s underlying complaint.

“[T]here is no basis to question Wexford’s denial of liability for the decedent’s death,” Theis wrote.

Theis held the case is controlled by Section 2.20, which states “[a]ll settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this [a]ct may be redacted.” 

“In sum, because Wexford’s settlement agreement with the decedent’s estate was not entered into by or on behalf of a public body, the plain language of [S]ection 2.20 dictates that it was not a public record and, thus, not subject to disclosure,” Theis wrote.

“Where public funds did not satisfy the settlement, and without more, there is no basis to conclude that this settlement agreement between private entities constitutes a public record,” the justice wrote.

Wexford was represented by Andrew R. DeVooght and Nina Ruvinsky of Loeb & Loeb LLP and Andrew M. Ramage of Brown, Hay & Stephens LLP in Springfield. They did not respond to a request for comment.

This case is  Bruce Rushton, et al., v. the Department of Corrections, et al., 2019 IL 124552.