BOISE – The Idaho Department of Correction and attorneys representing inmates at the Idaho State Correctional Institution have quietly reached an agreement that could permanently hide from public view records connected to the medical care provided at the prison.
The protective order was approved by U.S. District Judge B. Lynn Winmill on Friday in a 32-year-old lawsuit over substandard care and other civil rights violations at ISCI. The order allows the state or the inmates’ attorneys to designate any record confidential if they think it’s needed to protect trade secrets or medical privacy, or for security reasons. They may also designate a document as confidential if they think the public release would be “unduly detrimental” to the interests of third parties.
IDOC attorney Mark Kubinski says the intent is to protect records that would already be protected under Idaho’s public records law, not to shield the documents from public view.
“It’s not the intent of the parties to broaden the public records act, but to regulate that information between the parties themselves,” Kubinski said Friday. “I understand there’s the possibility for you or somebody to read it that way, but that’s not how the parties read it.”
The medium-security prison south of Boise is the oldest operating prison in Idaho. In 1981, ISCI inmates brought a class-action lawsuit against the state alleging a variety of problems including poor medical care, violence and overcrowding. Inmates have won many of their claims, but the lawsuit remains in the federal court while the state works to fulfill the requirements of a settlement designed to improve medical and mental health care at the prison. The lawsuit has become known as the Balla case after one of the original plaintiffs, former inmate Walter Balla.
The agreement is tricky because it makes the inmates and their attorneys responsible for overseeing whether the state is complying with the terms. That means they must have access to information that would otherwise be confidential, including proprietary information from Corizon, the company that provides the medical care at the prison, Kubinski said. To keep the inmates from sharing that confidential information with outside parties or from accessing information that would allow them to manipulate the medical system or create security risks, both sides agreed to create two levels of secrecy: “Confidential,” which all parties in the case can see but which can’t be shared with anyone else, including the general public; and “Attorneys’ Eyes Only,” which the inmates attorneys’ may see but which must not be shown to the prisoners.
The protective order says that many types of information can be designated as confidential, including information deemed competitively or commercially sensitive, financial information, information that implicates the privacy interests of people who aren’t part of the lawsuit, and information deemed to be unduly detrimental to the interests of a contractor, employee or a third party.
The protective order also contains a disclaimer stating that just because something is designated as confidential doesn’t mean that the designation is correctly applied.
Idaho’s public records law already allows the state to deny access to many types of information including trade secrets and individuals’ medical records. But Kubinski acknowledged that the language in the protective order doesn’t match the language in the public records act.
“The terminology may not be consistent with the public records act, but I think most of those categories – and I don’t want to say this definitively – are encompassed one way or another under the public records act,” Kubinski said. “We’re not seeking to withhold information from the opposing party, we’re just limiting the disclosure of how broad or narrowly the opposing party can share that disclosure.”