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Should Non-Profit Behind Vt. Health Information Exchange Follow Public Records Law?

A lawsuit argued in Montpelier Tuesday will decide whether a key part of Vermont’s health care reform efforts is subject to the state’s public records law.

Vermont Information Technology Leaders is technically a private non-profit organization. It’s better known by its acronym, VITL, and it’s the organization that’s responsible for developing the Vermont Health Information Exchange. That’s a system that is designed to allow different doctors with different electronic medical records software to easily share information about patients. And VITL built that system with guidance from the Legislature and millions of dollars from taxpayers.

That’s why citizen advocate Steven Whitaker says VITL should be subject to the state’s public records law. He argued in Washington County Superior Court that even though it’s a private non-profit, it meets the legal standard of being a “functional equivalent” of a government agency.

"VITL is and has been at the center of Vermont health care reform for the last decade, starting in 2005," Whitaker says. "VITL’s creation, the Vermont Health Information Exchange, is an essential part of these government efforts. The VITL role in health care reform in Vermont is no ordinary contract or outsourcing – it’s a grant of exclusive authority and responsibility enshrined in statute."

Whitaker says the major taxpayer investment in VITL’s product, along with the fact that public officials serve on the organization’s board in their official capacities, means VITL should have to turn over records about its activities.

VITL’s lawyer, Robert DiPalma, said the legislature tasked a private entity with the creation of the health information exchange intentionally.

"Keeping it private was to honor the sensitivity of the handling of private data," DiPalma explains. "And I think there was a lot of concern about state government control over this body of private medical health information."

But Whitaker didn't ask VITL for any medical data, and the state's public records law already has exemptions in place for sensitive information like that.

DiPalma argued Tuesday that VITL's role is that of a regular private company doing business with the government, so it shouldn't be required to follow the state's public records law.

And he said any concerns about transparency or accountability are taken care of in the form of oversight from state agencies, which do have to keep their records open to the public.

"There is a high level of scrutiny of the work that it does, and VITL does not seek to avoid that in any way whatsoever, but the mechanism of using the public records act is not the right mechanism for performing that function," he said.

There is precedent for making a private organization follow the state's public records law.

When Prison Legal News sued Corrections Corporation of America under the public records law, the court ruled that because imprisoning Vermonters is only legally possible under the authority of the state, the company had to be as transparent as the state would.

Whether VITL's records will be opened is up to Judge Mary Miles Teachout, who will rule on Whitaker's case in the coming weeks.

Disclosure Dec. 1, 2016: VITL's vice president and chief financial officer is married to VPR President and CEO Robin Turnau.

Taylor was VPR's digital reporter from 2013 until 2017. After growing up in Vermont, he graduated with at BA in Journalism from Northeastern University in 2013.
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