Secrecy in the court

| CRIMINAL JUSTICE

By Royal Calkins

In other counties and states where federal courts monitor health care in jails and prisons, most of the information that goes into the court files is considered public record. Open to the press. Open to everyone.

But many files in the federal court case involving Monterey County, a case referred to as the Hernandez settlement, look a lot like CIA documents, heavily redacted with thick black lines. Those are the “public” documents. Hundreds of other documents are simply kept under seal. No black ink necessary.

A key document in the Hernandez settlement court file in San Jose is a motion by attorney Cara Trapani explaining why lawyers for the inmates want the court to start fining the jail’s health provider, Wellpath, for contempt unless its work quickly improves. Trapani’s firm seeks fines of up to $25,000 in each of 44 elements in the company’s contract with Monterey County. Theoretically, that could add up to periodic fines of around $1 million.

Which 44 elements? You’ll have to guess. Much of Trapani’s motion is blacked out.

(Actually, from other portions of the giant file, one might be able to piece together the 44, but it’s a chore. If the judge agrees to the fines, only a handful of people will know why.)

Some of what’s contained in the voluminous case file obviously should be off the record. Detailed accounts of medical treatments provided to certain inmates aren’t diminished by striking out the inmates’ names. Reports from prison experts about security shortcomings in the jail shouldn’t be made public.

But the quest for confidentiality goes so far that even members of the Monterey County Board of Supervisors, who are essentially defendants in the Hernandez case, haven’t been provided with dozens upon dozens of special reports written by court-appointed “neutral monitors.” The monitors are doctors, psychiatrists, security experts, experts on access for the disabled, and others. Their reports contain the crux of the case, detailed accounts of why the jail has one of the highest death rates among U.S. jails and why there sometimes aren’t enough deputies on staff to keep depressed inmates from killing themselves. Clearly these are things the supervisors need to know about.

Sheriff Tina Nieto runs the jail, not the supervisors, but it is the supervisors who decide how much can be spent on necessities there, such as health care, staff and security measures.
Have they seen the reports?

“I’ve never seen one,” replied Supervisor Mary Adams.

“Nope,” said Supervisor Wendy Adams.

“I’ve never heard of them,” said Jane Parker, a former supervisor.

The cost of these neutral monitors is split between Wellpath and Monterey County taxpayers.

Lawyers for the inmates have filed a motion to open the reports to the public, a move opposed by Wellpath and the Monterey County Counsel’s Office. The county’s lawyers argue that keeping them closed encourages a free flow of information between the monitors and the county, and that opening them to the public could result in a flurry of lawsuits by inmates or their families.

The other side responds that the federal monitoring is set up to essentially mandate the free flow of information between the parties and the monitors and keeping others in the loop won’t harm a thing.

Voices recently filed a request under the California Public Records Act for access to the monitor’s reports. As expected, it was turned down.

Voices followed up with the County Counsel’s Office, which is actively involved in every aspect of the Hernandez settlement and which denied our request. We asked exactly what makes the monitor’s report unavailable. Deputy County Counsel Susan Blitch said they are sealed under a protective order issued early in the case. That appears to be incorrect. The protective order does not mention the monitors’ reports.

Early in the Hernandez litigation, the County Counsel’s Office and Wellpath came to an agreement. Virtually any document would be sealed if the entity filing it — say Wellpath or its lawyers, or lawyers for the inmates — simply wrote “Confidential” on page one. Documents not sealed would be open to the public after black ink was used to cover the names of jail and Wellpath employees, most medical information and considerably more. Ink was applied liberally. Even details of Wellpath’s contract, which is a public record, were blacked out.

Wellpath lawyers said that identifying employees would make it harder to hire qualified people. County lawyers argued that providing too much information, especially about inadequate medical care, could open up the government and Wellpath to even more litigation than they have already experienced.

Autopsy reports on all the inmates who died in the jail are public records, readily available at the Sheriff’s Office in Salinas. The same reports in the federal court file are sealed. In the last four years, the county and Wellpath have shared responsibility for more than $8 million in settlements for wrongful deaths in the jail. It isn’t clear how much of that was paid by taxpayers.

Lawyers for the inmates didn’t like it, but they begrudgingly went along with the secrecy. Until now.

Despite what Deputy County Counsel Blitch said about the reports being covered by a judge’s protective order, Voices couldn’t find any mention of them in the order. The protective order itself, by the way, is not sealed.

We asked why the reports had not been provided to the supervisors. Blitch said she couldn’t say because of attorney-client privilege.

The unsealing motion by San Francisco-based Trapani and her colleagues says they have no problem with appropriate editing to protect confidential medical information and certain other matters. Trapani wrote that unless considerably more information is made public, the community won’t be able to assess the validity of potential Wellpath fines or analyze whether the company’s performance is getting better or worse.

In its response, the County Counsel’s Office also argues that the monitors wrote the reports believing they would be confidential.

Attorney Ben Hattem, a colleague of Trapani’s, replied that some of the monitors have prepared affidavits saying they don’t mind if the reports are made public.

Hattem wrote, “The community of Monterey County — including the tens of thousands of individuals who are or will be incarcerated at the jail, and their loved ones, and members of the public whose taxes fund Wellpath’s contract to provide health care at the jail — have the right to know the factual bases” for court orders involving Wellpath.