Courts & Corrections

Legal adversary says Donovan raising hurdles to transparency

TJ Donovan
Attorney General TJ Donovan. File photo by Elizabeth Hewitt/VTDigger
A lawyer embroiled in a public records battle with the state is arguing that Attorney General TJ Donovan is trying to make it harder for people to get access to documents.

Brady Toensing, vice chair of the Vermont Republican Party, filed a reply brief with the Vermont Supreme Court last week previewing arguments he’ll make before the court at a hearing June 7.

Attorney Brady Toensing.
Almost two years ago, Toensing requested that the attorney general’s office search the private accounts of former Attorney General William Sorrell and eight of his staffers for any communications pertinent to Toensing’s allegations of campaign finance and pay-to-play violations by Sorrell.

A lower court turned Toensing down, ruling that Vermont’s Public Records Act doesn’t require a search of private email or text messages upon request.

The attorney general has told the Vermont Supreme Court that his office won’t argue for upholding that opinion on appeal.

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

But while Donovan accepts the notion that private accounts can be searched for public records, he argues that his office already conducted a thorough and reasonable search for records responsive to Toensing’s request.

To compel a further search for records on private accounts, Donovan argues, Toensing must demonstrate there is reason to believe pertinent records exist on those accounts in order to justify what would be an invasion of privacy.

Attorney Justin Silverman, executive director of the New England First Amendment Coalition, suggested the attorney general’s concerns about privacy might undermine the public’s right to know.

Toensing doubles down on those concerns in his brief, saying the Public Records Act places the burden for searches on the state, not the requester. By suggesting he must justify a search of private accounts, Toensing writes, the attorney general is trying to shift the burden to him in a way the law doesn’t support.

Exemptions written into the law already address privacy, and any threat to privacy presented by searching personal accounts could be avoided with proper procedures, Toensing writes.

He also suggests it’s important he prevail in court for the sake of transparency in official business. If the lower court’s ruling isn’t overturned, and the attorney general’s concerns about state employee privacy win out before the Vermont Supreme Court, Toensing argues it will create an incentive for officials to do public business on their private accounts to avoid scrutiny.




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Morgan True

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  • Steve Baker

    Our AG has an opportunity to come out in very clear language and condemn unequivocally the use of private devices for state business.
    Every time I read about our attorney general, it seems as though he’s doing the two-step dance.

  • Aula Evans DeWitt

    I think it is reasonable to believe that a State employee’s personal electronic communications on their personal accounts are not subect to search and seizure without indication that there is a solid reason to take that step. I also strongly agree that public business should be limited to public accounts.

    • robert bristow-johnson

      which is essentially what TJ is saying.

      the AG is saying that Mr. Toensing can’t use the Public Records Act to go fishing.

      or the other metaphor is throwing it all against the wall and seeing what sticks.

      • Jim Manahan

        The law doesn’t support what the AG is saying.

  • Thomas Powell

    Let’s be clear about Mr. Toensing’s motivation as he claims the mantle of fearless public access hero. He is a Republican gadfly who has long sought to embarrass public officials by suing them. I doubt his case has much to do with the state’s obligation to release records, which Mr. Donovan has already done. A wolf in sheep’s clothing is more like it.

    • Jim Manahan

      Let’s be clear and honest; you don’t know what Mr. Toensing’s motivation is. He has long sought to hold public officials accountable, and that has often taken the form of a lawsuit, as they attempt to avoid their responsibilities. This case has everything to do with the state’s obligations to release public records. If you are asserting that Public Records Act does not place the burden for searches on the state, then make your case.

      • ThomasPowell

        Even a cursory review of Mr. Toensing’s partisan actions in the past would offer a clear appraisal of his motivation in this matter. “Holding public officials accountable” is code speak for GOP hackery. His record speaks for itself. A.G. Donovan has complied with the Public Records Act, though you are using this as a red herring.

  • Barry Kade

    I just searched the Printed Case for the words “volunteer” and “municipal.” Both turned up blank. That indicates to me that neither side has considered how the issue would affect volunteer members serving on Vermont town or city boards and commissions. These folks rarely have an official “work” related email account and communicate with each other and the public on their private email accounts. And, is everything that they Google and download that is related to their municipal positions a record that has been “acquired in the course of agency business”?
    The privacy concerns are profound; as is the potential for a total escape from transparency.
    The solution(s) seem to be more a matter for the legislature than the courts.