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.
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.