VTDigger is filing the amicus brief in an appeal to the Supreme Court of Vermont. Other news outlets and transparency groups have signed on, including the New England First Amendment Coalition, the Caledonian Record, Seven Days and the Vermont Press Association. An amicus, or friend of the court brief, is a filing made by a party that is not a litigant but has significant interest in the outcome of a case.
VTDigger, other news outlets and transparency groups argue that the court’s ruling undermines the Vermont Public Records Act by placing private accounts beyond scrutiny even if they contain records related to public business.
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.
Without open access to government records, journalists’ ability to gather information is constrained, and reporters are forced to rely on “the good graces of interested officials,” according to the brief.
The brief was filed in support of an appeal of a February ruling by Superior Court Judge Robert Mello.
Mello found that the Vermont Public Records Act does not allow for the public scrutiny of the private emails of state officials — even if those officials are conducting government business on personal accounts.
The case was brought by Brady Toensing, vice chair of the Vermont Republican Party, who sued for records from the private email account of former Vermont Attorney General Bill Sorrell and nine employees in his office.
Toensing’s request is part of a multi-year battle to obtain records related to Sorrell’s communications with lobbyists and others.
Mello wrote in his ruling 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.”
In an amicus brief filed Friday, attorney Timothy Cornell, of Cornell Dolan, P.C., representing the Vermont Journalism Trust, argued that “the decision will create a huge loophole that enables public officials to conceal public records simply by communicating on a private email server.”
“This will cripple journalists’ ability to gather information and hold the government accountable,” Cornell continued. “If a document is produced in the course of agency business, it is a public record, regardless of how it is created, how it is communicated, or where it is stored.
The amicus brief goes on to say that the interpretation of the Public Records Act made by the Superior Court does great violence to the overall aim of the law and avoids the real question: “Was the document under consideration produced or acquired in the course of agency business? Absent that analysis, a state official can now put a record entirely out of the public’s reach simply by using a private third party email channel or text message.”
Mello’s ruling acknowledges this possibility but suggests it is up to the Legislature to remedy the situation.
“To be sure, the idea that state officials and employees can avoid valid public records requests merely by conducting work-related communications on private e-mail and text messaging accounts is a serious and, frankly, disturbing concern,” Mello writes.
“Through its decision today the court does not seek to diminish that concern, but only to point out that ‘it is a matter for the Legislature, not the courts, to decide,’” Mello says.
The Vermont Journalism Trust argues that the court’s ruling is based on a flawed interpretation of the public records statute.
The Attorney General’s office has said it does not believe state employees should be using private accounts for public business, but has argued that Toensing’s request violates the privacy rights of state employees.
Judge Mello concurred.
New Vermont Attorney General TJ Donovan has said requesters should provide evidence showing that public records exist on a state employee’s private accounts before they can be searched.
The amicus brief argues that there is no exemption in the Public Records Act related to privacy concerns.
Toensing says Donovan’s interpretation would create an incentive for officials to use private accounts to avoid scrutiny by placing an evidentiary burden on those requesting public records.
While the case is pending, Secretary of State Jim Condos has said his office will continue to advise state agencies and departments that public business conducted on private accounts is subject to open records requests. Condos has said the Vermont Attorney General’s arguments are “alarming.”
The Supreme Court of Vermont recently granted Toensing’s motion for an expedited hearing in the case, and arguments are scheduled to be heard on June 7.