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.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.