MONTPELIER — Vermont Supreme Court justices peppered both sides with questions at a hearing Wednesday in a public records case with far-reaching consequences for government transparency.
The central issue is the application of the state’s public records law to private email and text message accounts belonging to public officials.
A lower court ruled earlier this year that private accounts are protected from public scrutiny.
That ruling creates a “gigantic” loophole in the law, according to Bob Hemley, a First Amendment lawyer with Gravel and Shea. Helmley represents a group of media outlets and transparency advocates, including VTDigger, that filed an amicus brief in the case.
The case, Toensing v. the Attorney General of Vermont, stems from a request by Brady Toensing, the Vermont GOP vice chair, for public records related to campaign finance and pay-to-play allegations against former Attorney General William Sorrell.
The attorney general’s office gave Toensing thousands of emails but balked when he then sought records from the private accounts of Sorrell and eight other employees.
A Superior Court judge backed the state’s interpretation of the law.
In testimony Wednesday, Toensing told the justices that this case is about “ensuring open government,” which he said is a fundamental principle of democracy and the “sole purpose” of Vermont’s public records law.
“If it is true what the trial court found, that our public records law does not reach public records on nongovernmental accounts, and a governmental employee can evade its reach simply by sending on a private email account, then our law is fundamentally undermined,” Toensing said.
Solicitor General Benjamin Battles, representing the attorney general’s office, appeared to concede that documents on the private accounts of government employees can be subject to the public records law. But he attacked Toensing’s request as unreasonable and overly broad.
Such a request would force the attorney general to invade its employees’ privacy without any indication that relevant public records do exist on private accounts, he said.
“We are assuming for the sake of argument that you can have a public record on a personal email system,” Battles told the justices. “We’re saying with that assumption his request does not justify production here, because the (attorney general’s office) performed a reasonable search, and (Toensing) hasn’t come forward with any evidence to show the search is unreasonable.”
Toensing said the attorney general is trying to create a “burden of rebuttal” that doesn’t exist in the public records law and would be “unreachable in most cases.”
A very engaged Supreme Court bench peppered both sides with questions throughout the 30-minute hearing. All five justices asked questions, which experienced court observers said is a rare occurrence that suggests they are keenly aware of the importance of the case.
The justices pressed Toensing on whether his request was reasonable, whether state agencies should search employees’ private accounts pursuant to all public records requests, and whether it might be sufficient for employees to simply provide an affidavit attesting that they searched private accounts for relevant public records.
One exchange with Battles may indicate where the justices are leaning in their deliberations. “Why (doesn’t) a reasonable portion of the response include the agency asking the affected employees, ‘Have you ever done state business on your personal computer, yes or no?’” Justice Harold Eaton Jr. asked Battles.
In Toensing’s case, Sorrell refused to have employees certify they searched their private accounts for records covered by his request.
Battles said an affidavit might be justified in cases where there is evidence of governmental action that is not reflected in the state emails provided or when it can be shown an employee has “a practice or habit of using private email for official business.”
“So absent a track record, we can’t ask that question?” Eaton probed.
“I think once you open the door to searching personal email accounts, you’re opening the possibility of litigation about that and invading privacy and having an employee disclose things to their employer,” Battles said.
Justice Marilyn Skoglund cut in, “But wouldn’t that result — if we reversed this — wouldn’t that result bring about a more uniform approach to the use of personal devices and an understanding that everything that’s agency business, even if it’s on a device, should be subject to the public records law?”
Battles responded, “It would bring about a clear understanding, but I think the court below is correct in noting there is a lot of complex questions that need to be addressed by the Legislature if there’s going to be this big shift.”
Justice Beth Robinson wondered whether this would really be that big a shift, asking Battles, “Is it your impression that throughout state government it’s not happening? People aren’t saying, ‘Hey, here’s a public records request, do you have anything in your personal device that’s responsive to the request?’”
Battles said he didn’t want to speak for other agencies, but Robinson pressed him as to whether that happens at the attorney general’s office. Battles responded, “It may happen outside the record of this case.”
Battles continued: “I think there have been, I think it’s a different situation when an agency is presented a specific item of business, like, ‘You want all documents related to the approval of this contract,’ whereas the case here —”
“Why is that different?” Robinson interrupted.
“Because I think that’s very easy and the risk of an invasion of privacy is much less,” Battles countered. “I was attempting to explain why there has been some difference in approaches in other cases.”
Secretary of State Jim Condos — who described the lower court ruling in this case as “alarming” — has said his office routinely tells state agencies that private communications about public business are to be considered public records.
Wednesday marked the only day of arguments in the case. There was no indication of when the Supreme Court will issue a ruling.
