Attorney general weighs in on public records case

TJ Donovan

Attorney General TJ Donovan. Photo by Anne Galloway/VTDigger

The attorney general is not defending a lower court ruling that held the private email and text message accounts of state officials are beyond the reach of public records law.

In a brief filed this week to the Vermont Supreme Court, where an appeal is being heard, Attorney General TJ Donovan’s office wrote that, “To be clear the (attorney general’s office) is not suggesting that a state official may evade the Public Records Act by shifting his or her communication to a non-state email account.”

The case involves a request from GOP Vice Chair Brady Toensing, who requested that the attorney general’s office search the private accounts of former Attorney General Bill Sorrell and eight of his staffers for communications pertaining to campaign finance and pay-to-play allegations against Sorrell.

In ruling against Toensing, Superior Court Judge Robert 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.”

Toensing appealed Mello’s decision last month.

Attorney Brady Toensing.

The brief filed by the attorney general’s office is being hailed as a partial victory for media and government transparency groups, including VTDigger.org, which filed an amicus brief with the Caledonian Record, Seven Days, the Vermont Press Association and the New England First Amendment Center urging the Supreme Court to affirm private communications relating to government business are public records.

“We welcome the attorney general’s position that private email and text messaging accounts can be searched under the Public Records Act,” said attorney Justin Silverman, executive director of the New England First Amendment Coalition.

Silverman said it is still concerning that the attorney general is questioning how such searches can occur, the answer to which could have serious consequences for the public’s right to know.

The Vermont Attorney General argues that Toensing’s request is overly broad and would sweep up private communications without demonstrating that such a search is “reasonably necessary to review governmental action.”

Toensing’s original request asks for nearly five years of communications between the attorney general’s office and 30 other individuals and organizations, including Sorrell’s 2012 campaign manager.

A provision in the public records act known as the “express policy” requires that “an individual’s right to privacy be balanced against the public’s right to access government documents,” according to the attorney general.

“Instead of demonstrating that the (attorney general’s office) employees used personal accounts to conduct official state business, appellant attempts to justify his request using speculation and innuendo.”

Silverman said that reasoning places a burden on the party requesting records that isn’t contemplated by the Public Records Act, and which could be used to deny access to records that would be public were they not located on private accounts.

“If a request needs to meet a certain standard before private accounts can be searched, the requester certainly shouldn’t be required to put the cart before the horse and first provide proof the records exist,” he said.

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.



Morgan True

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  • Steve Baker

    Is TJ trying to do the two-step on this issue ? And whether it’s the federal or state government, a very simple three or four segments law could be passed to curb all of this secretive behavior.
    ” if you conduct Any state business or correspondence outside the state email system you will be guilty and sentenced to serve no less than three years in jail”
    $10,000 fine per offense
    Disbarment
    Expulsion from whichever legislative body you are in, forfeiture of your right to ever hold or work for the state or federal government.

    It is absolutely that simple.

  • Mary Reed

    I think the relevant point here is that the entity using the public records law as the basis for requesting records from a personal account must demonstrate some credible, factual, actual reason(s) to believe that a public official or employee has used said personal account to conduct official State business. Contrary to the apparent expectations of Mssrs. Toensig and Silverman, being a public official or employee (even one with a perceived stake in certain State affairs) is not grounds for reasonable belief that such persons have conducted official business on personal accounts. That’s analogous to expecting a judge to hand them the keys to their neighbor’s house simply because they claim the neighbor harbors ill will toward them and they want to look for proof.

    • Steve Baker

      Not everyone’s neighbor is a state employee a legislator. So drop this case and move forward with very harsh laws and clear-cut penalties for any future infraction

      • Mary Reed

        I see a couple of possibilities in the basis of writing about ‘….any future infraction’ – 1) the writer has credible, factual knowledge of an actual, identifiable someone involved in this matter having already committed an actual, proven infraction (conducting official business using a personal account) or 2) the writer assumes that anyone who is an official or employee is automatically suspect and does not merit normal privacy and due process. I imagine we’d have few qualified folks wanting to run for office or be appointed or employed were that how we treated them in law.

        The statement that there must be ‘very harsh laws and clear-cut penalties’ seems based on an assumption (you know what they say about the word ‘assume’ – it makes an ‘a.s out of u and me’) that a serious problem actually exists. The writer gives no facts or reasonable grounds to establish a credible belief that such a problem actually exists. The writer seems to expect the legislature to pass a law to deal with a perceived problem – one not credibly known to actually exist. As a VT citizen and taxpayer, I prefer that the legislature deal with actual, serious problems. We have plenty of them.

        • Steve Baker

          If they don’t use private e-mails and texts…there won’t be a problem so they’ll have no worries about harsh penalties.
          We need to start parsing words and write clear legislation to hold government accountable.

  • Mary Alice Bisbee

    Will the new VT Ethics Law pertain to this issue?

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