Courts & Corrections

Judge: Officials’ messages on private accounts aren’t public

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.

Bill Sorrell
Former Attorney General William Sorrell. File photo by Elizabeth Hewitt/VTDigger

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.

TJ Donovan
Attorney General TJ Donovan. File photo by Morgan True/VTDigger

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.

Jim Condos, Secretary of State
Secretary of State Jim Condos. File photo by Elizabeth Hewitt/VTDigger

“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.



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  • Jay Eshelman

    Judge Mello hasn’t ‘allowed’ public officials to circumvent anything. He clearly applied VSA Title 1, Chapter 005: Sub Chapter 003: Access to Public records § 317. Definitions; public agency; public records and documents , as its written. And the Vermont law relies, in significant part, on the tenants found in The Freedom of Information Act, 5 U.S.C. 552.

    http://legislature.vermont.gov/statutes/section/01/005/00317

    For example, consider VSA Title 1, Chapter 005: Sub Chapter 003: Access to Public records § 317,
    (c) The following public records are exempt from public inspection and copying:
    (1) Records which by law are designated confidential or by a similar term.

    ” ….or by a similar term? What does that mean?

    And for everyone clamoring for the publication of any public official’s tax return, consider this exemption:

    (c) The following public records are exempt from public inspection and copying:
    (6) A tax return and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business.

    If anyone has allowed anything, blame Vermont’s legislators for crafting laws with vagaries and loopholes protecting them from accountability if/when similar controversies like those surrounding AG Sorrell arise.

  • Edward Letourneau

    Am I reading this correctly: We have an AG who supports public officials hiding behind personal communications?

  • wendywilton

    If the Supreme Court upholds Mello’s decision (and Donovan’s position) then the good ole boy network can be maintained in private emails to do public business behind the scenes. Toensing is right, if that is OK then there is no reason to have a public records law. Donovan stepping into it again. He’s a disappointment.

  • David Usher

    What a muddle! Except in very limited circumstances, perhaps not spelled out properly in state law, the public’s business should be conducted in the open. I know that may be difficult and perhaps embarrassing for public employees, but that’s the parameter they must adhere to as public employees, whether elected or appointed.

    Legal positions and evidence may need protection in certain cases, but I support Jim Condos’ argument:
    “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?’”

  • David Robinson

    The AG should be impeached for even considering the support of such a position.
    Legislature: STEP UP: Prohibit the use of personal devices for any “official” communication and create a penalty for any elected, appointed or career employee that uses such a medium with out “emergency cause” and the reporting of the use thereof.

    Montpelier has enough problems – Shummi’s officials getting shuffled when programs blow up or controversy erupts. NOW all you have to do is your official GOV business on your private phone and voila! Protected.
    Donovan must go. How an AG can support hiding official GOV business on a personal device is reprehensible.

  • Steve Baker

    AG TJ 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.
    But, if liberal Politicians use private devises to circumvent Vermont’s Public Records Act by conducting official business on their private cellphone or email accounts TJ is OK with that.
    And like usual, the ACLU favors the unethical behavior over public transparency. Didn’t we just go through this mess in the National election?

    Private Servers
    Private E-Mails
    Thumb Drives
    Missing Laptops
    Again, the Legislature writes laws that can’t be understood and have no ethical teeth. ALL STATE BUSINESS belongs to the PUBLIC (period)

    • Jay Eshelman

      Here’s the conundrum: is every person elected or appointed or hired for public service required to forego all recorded private communication? Do they not have a right to protect recorded correspondence deemed personal and confidential?

      How can anyone ever know, for certain, without at least some public oversight of all personal and public communication?

  • John Freitag

    Those of us on Selectboards struggle constantly to make sure our email communications are appropriate, no business discussed, and in compliance with the Open Meeting Law. The Vermont League of Cities and Towns regularly includes this topic in their workshops. While it makes taking care of things at times difficult, it is absolutely the right way to do the public business. To say we can get around it by just using our personal email accounts is to make a mockery of the whole idea of open and accountable government. Trust is essential to good government and even the appearance of the possibility of impropriety undermines this trust. Unfortunately, unlike many towns , the State has does not have a conflict of interest policy or ethic laws. This is clearly something that our legislature needs to address.

  • Deborah Wright

    as long as the business of the official is created or received, it matters not where the document lies, it should be made available for public inspection, personal emails are redacted from view, this is clearing a ruling that hides the public’s business from the light