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New Mexico Foundation For Open Goverment

Court of Appeals of New Mexico

September 16, 2019

CORIZON HEALTH, a foreign corporation, Respondent-Appellant.

          APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Raymond Z. Ortiz, District Judge

          Daniel Y ohalem Santa Fe, NM Katherine Murray Santa Fe, NM for Appellees

          Holland & Hart LLP Larry J. Montano Charlie S. Baser Santa Fei NM for Appellant.



         {¶1} Corizon Health (Respondent) appeals the district court's orders granting Petitioners' the Santa Fe New Mexican, Albuquerque Journal, and New Mexico Foundation for Open Government (collectively, Petitioners) verified petition for alternative writ of mandamus (Petition); and ensuing motion for attorney fees. Concluding the district court properly determined that Respondent's settlement agreement documents were public records subject to the Inspection of Public Records Act (IPRA) and acted within its discretion in awarding attorney fees to Petitioners, we affirm.


         {¶2} Respondent is a private prison medical services provider that provides contracted healthcare services throughout the United States. In a series of contracts with the New Mexico Corrections Department (NMCD), Respondent committed to provide healthcare services in certain New Mexico correctional and detention centers from 2007 to 2016, most recently under a Professional Services Agreement (the Contract) from June 2012 through May 2016. Respondent stopped providing medical care services for NMCD after the Contract ended. As a result of the medical care Respondent provided during the course of the Contract, certain inmates filed civil claims against Respondent alleging instances of improper care and/or sexual assault. Respondent negotiated and settled at least fifty-nine such civil claims.

         IPRA Requests

         {¶3} In May and June 2016 Petitioners separately submitted written IPRA requests to NMCD requesting to inspect and copy all settlement documents involving Respondent in its role as medical services contractor for NMCD. NMCD responded to each and stated it had no responsive documents in its possession. NMCD explained that under the Contract, Respondent defends and indemnifies NMCD regarding "all lawsuits alleging improper or unconstitutional medical care" of inmates, and that even if NMCD or a state employee had been named as a defendant in error in a lawsuit involving medical care provided to inmates, the state entity or actor would be dismissed from the lawsuit before it settled, thereby removing NMCD from the settlement process. NMCD stated that "[Respondent] alone pays all settlement amounts, pays its own attorneys to settle or try the case, and pays the inmate's attorney fees and any judgments or verdicts entered in these cases." As such, NMCD explained that Respondent is the custodian of the settlement agreements involving medical care of inmates during the time period when Respondent and NMCD were under contract. NMCD's responses also provided each Petitioner with Respondent's contact information, instructed Petitioners to contact Respondent, and forwarded a copy of each Petitioner's request to Respondent. Each Petitioner then sent written IPRA requests to Respondent requesting the same information previously requested of NMCD.

         {¶4} In response, Respondent sent all three Petitioners a table listing settlement amounts from each settlement and the correctional facility involved. Respondent also initially agreed to produce the settlement agreements if given an additional two weeks to redact the names of the plaintiffs from the documents. Petitioners agreed to the extension, however on that same day, Respondent sent each Petitioner a letter refusing to produce any of the settlement agreements, stating "it is [Respondent's] position that IPRA does not compel production of this information. Further, the confidentiality agreements executed by the parties prohibit[] disclosure of the requested information."

         Issuance of Writ of Mandamus

         {¶5} On July 18, 2016, Petitioners filed their Petition in the district court. Contained within were supportive facts and argument regarding Petitioner's assertions that Respondent was a private entity acting on behalf of a public body, thereby subjecting it to IPRA, and that the settlements resulted from Respondent's provision of medical treatment to or attendant abuse of state prison inmates. Eight days later, the district court preliminarily issued an alternative writ of mandamus, ordering Respondent to "[c]omply with your mandatory, non-discretionary duty to produce the settlement agreements requested by Petitioners" and "[p]ay Petitioners' reasonable attorney[] fees and costs for litigating this action" or "[s]how cause as to why this [preliminary] writ should not be made permanent."[1] Respondent filed its answer to the Petition ten days after the court-mandated deadline to either produce the settlement agreements or show cause. Primarily, Respondent stated it lacked sufficient information to properly respond to a significant number of Petitioners' factual assertions. While Respondent admitted that it was under contract with NMCD to provide inmate medical services in New Mexico correctional facilities and that it was paid $37 million a year to do so, it nevertheless argued that the Petition should not be granted and that the settlement agreements are not subject to IPRA because they (1) are private contracts between Respondent and private persons which require confidentiality pursuant to clauses in the agreements; and (2) are not a component of the public function Respondent contracted to perform for the State. Notably, Respondent's answer made no mention of mandamus as an inappropriate vehicle to enforce disclosure of the settlement agreements under IPRA.

         {¶6} At a merits hearing on August 16, 2016, Petitioners argued IPRA's applicability based upon Respondent's provision of services that constitute a public function under State ex rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104');">2012-NMCA-104, ¶¶ 13-14, 287 P.3d 364 (enumerating factors by which the public nature of a private entity's provision of services is assessed in determining if the private entity is subject to IPRA). Petitioners entered portions of the Contract into evidence to show that Respondent provided medical services in an "intertwined fashion" with NMCD, "side by side," and in a manner that required "constant feedback" and repeated approval by NMCD. Petitioners argued that NMCD supplied medical equipment, maintained extensive control over Respondent, and approved Respondent's staffing decisions. Petitioners explain that Respondent performed a governmental function that NMCD would otherwise have performed itself, and argued that even if Respondent had settlement autonomy in the context of civil lawsuits, such alone did not recharacterize Respondent's central function from that of a public entity subject to IPRA.

         {¶7} Respondent agreed that it stood "in[] the shoes of the [S]tate [by] providing [medical] services to inmates, [and that] documents related to providing those services are subject to IPRA[, ]" but argued that the settlement agreements are not subject to production under IPRA "simply because [Respondent] operates a medical facility within our [S]tate's prisons" and that to conclude otherwise would subject "all of [Respondent's] business records" to IPRA disclosure. Respondent also argued that additional information-beyond identification of the correctional I facilities and settlement amounts already set forth in its previously produced spreadsheet-was outside the responsive scope of IPRA.

         {¶8} At the end of the hearing, the district court granted the Petition, and on September 6, 2016, issued its final order granting writ of mandamus (Writ). It found that Respondent "was performing a public function and acting on behalf of the [NMCD] in providing medical services to New Mexico inmates and is therefore subject to IPRA[.]" Specifically, the court found "six of the nine Toomey factors weigh in favor of applying IPRA to Respondent," including: (1) the 37 million-a-year of public funds paid to Respondent by NMCD; (2) for services provided on publically owned property; (3) the availability of which were an integral part of NMCD's medical decision making process; (4) regarding a governmental function; (5) over which NMCD had contractual control; (6) under a contract benefitting NMCD and New Mexico inmates. Applying these findings, the district court concluded that the "settlement agreements related to [Respondent's] performance of this public function are public records subject to disclosure under IPRA[, ]" reasoning that "[Respondent] cannot contract away the public's right to IPRA disclosure through various contractual provisions in the settlement agreements themselves and such provisions are void as against public policy .... [Respondent] operating in settlement agreements th[r]ough an insurance company does not otherwise eviscerate the requirements of IPRA."

         {¶9} The Writ thus ordered Respondent to produce the settlement agreements, redacted in accordance with the exemplar settlement agreement containing redactions initially agreed upon by the parties. The district court further instructed Petitioners to submit their motion for fees, including supporting affidavits and invoices. At Respondent's request, the district court stayed the Writ "pending exhaustion of [Respondent's] avenues of appellate review [under] Rule 1-062(C) NMRA."

         Attorney ...

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