A recent ruling by Superior Court Judge Robert Mello would allow public officials to circumvent Vermont’s Public Records Act by conducting official business on their private cellphone or email accounts.
Mello’s ruling comes in response to a lawsuit by Brady Toensing, vice chair of the Vermont Republican Party, who has waged a yearslong battle for records relating to former Attorney General William Sorrell’s communications with lobbyists and others.
Toensing appealed to the Vermont Supreme Court on Monday seeking to have the ruling overturned.
In his ruling, Mello wrote that, while the definition of a public record in statute is “undoubtedly broad … its scope does not extend so far as to mandate the search of state officials’ or employees’ private email or text messaging accounts upon request.”
“This case is a big deal because it encourages public officials to communicate on private accounts, and they can’t even be asked about it,” Toensing said. “If that is true, why bother even having a public records law?”
Attorney General TJ Donovan said, as a matter of policy, there should be no “categorical exemption” from public records law for private accounts and that public officials should use only public accounts for official business.
In this case, however, Toensing’s request that private accounts be searched for communications about official business threatens those public officials’ privacy rights, Donovan said.
“We will certainly defend state employees’ privacy interests in the Supreme Court,” Donovan said.
Donovan said he’s still committed to transparency and will work with state employees to ensure they understand that official business should not be conducted on private accounts.
Lawmakers may need to update the law to remove any ambiguity as to whether private communications can be considered public records, “perhaps next session,” Donovan said, referring to the second half of the legislative biennium.
Jay Diaz, a staff attorney for the American Civil Liberties Union of Vermont, said his organization believes deeply in people’s right to privacy but that exemptions in the public records law already allow documents to be withheld to protect privacy.
“If this decision says you don’t even need to claim an exemption when someone asks for private communications related to public business, then that’s troubling,” Diaz said.
The purpose of Vermont’s public records law is to ensure government officials don’t conduct public business in secrecy, except in certain circumstances that are spelled out by the law, Diaz said.
“If government officials can move all their communications to private emails and cellphones, which is very easy to do, that seems to nullify the Public Records Act. So we are very concerned,” Diaz said.
Secretary of State Jim Condos described the ruling as “alarming” and said his office routinely advises state agencies that private communications about public business are to be considered public records.
Toensing said he has routinely received private communications from other state agencies that were responsive to public records requests he’s made in the past.
“Whether a record is public has to do with “the topic not the mode,” Condos said. “If the topic is a government-related issue, then it’s a public record,” he continued. “The question then becomes ‘Does it have an exemption attached to it?’ not ‘Where did it take place?’”
Donovan said the problem, in this particular case, is that Toensing has offered no evidence that the records he’s requesting from private accounts actually contain any information related to public business.
“I’m not sure that people have a right to carte blanche search private emails,” Donovan said.
Toensing said that’s not what his suit seeks to do. His court arguments and his written appeal spell out the basis for his belief that there may be records relating to his request on the private accounts of the former attorney general and his staff, many of whom still work for the current attorney general.
Ultimately, that is not what is at issue, though, Toensing said. Vermont’s public records law doesn’t spell out any evidentiary standard for requesting public records, either in general or on private accounts, he said. That’s an interpretation echoed by Condos and the ACLU.
If there were an evidentiary threshold for requesting records on private accounts, that alone would provide an incentive for public officials to discuss sensitive topics on their private accounts, Toensing said.
Toensing’s appeal is the second time in recent weeks that Donovan has faced scrutiny over how his office will approach the Vermont Public Records Act. Earlier this month, a national conservative group sued the office arguing that it is withholding records for political reasons.
In that case, Bill Griffin, the chief assistant attorney general, told the judge that the attorney general’s records are broadly protected under the attorney-client privilege exemption in the Vermont Public Records Act.
Griffin is also arguing on behalf of the attorney general’s office in Toensing’s case. Asked whether the legal arguments Griffin has presented in both cases reflect his positions, Donovan did not provide a direct answer.
He said Griffin is a “valued member of the attorney general’s office,” and that both cases present legitimate arguments meant to protect the state’s interests or the privacy interests of its employees.
The lawsuits also predate his tenure as attorney general, Donovan said. It’s now his responsibility to find resolutions that balance the public’s right to know with his duty to protect state interests, he said. However, Donovan signaled that, going forward, his office may do less to avoid filling public records requests.
“With a change of administration there will be change in policy in how the attorney general’s office handles public records,” Donovan said.
Condos appeared confident that might be the case. The attorney general’s office “just went through a major change, the first in 18 years,” Condos said, “so I’ll give them the benefit of the doubt in terms of clarifying their position” on what is or is not a public record.