Crime and Justice

Vermont Supreme Court: Private emails of public officials subject to records requests

Robert Hemley, Brady Toensing

Attorneys Robert Hemley, left, and Brady Toensing at a Vermont Supreme Court hearing Wednesday. Pool photo by April McCullum/Burlington Free Press

[T]he Vermont Supreme Court has ruled that the private email and text message accounts of public officials are subject to the state’s public records law, a decision hailed as a victory for advocates for government transparency.

The high-court’s unanimous decision Friday reverses a lower court ruling earlier this year that held that the private email accounts are protected from public release. The justices determined that exempting private accounts from the public records law would "encourage government officials to conduct the public's business in private."

“We conclude that the PRA’s (Public Records Act) definition of ‘public record’ includes digital documents stored in private accounts, but emphasize that it extends only to documents that otherwise meet the definition of public records,” the decision read.

The case decided by the court is Toensing v. the Attorney General of Vermont. The dispute centered on 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 did turn over thousands of emails to Toensing, but then balked when a request was made for records from the private accounts of Sorrell and eight other employees.

An amicus brief was filed in the case on behalf of several news outlets and open government groups who banded together in opposition to the lower court’s decision. The effort was led by VTDigger and joined by the Caledonian-Record, Seven Days, The New England First Amendment Coalition, and the Vermont Press Association.

Timothy Cornell, VTDigger’s attorney who wrote the amicus brief, said Friday that if that lower court ruling were allowed to stand, it would have been a “death knell” for access to public records in Vermont. “This is probably the biggest First Amendment case the Vermont Supreme Court has decided in a number of years,” said Cornell, of the Boston firm Cornell Dolan PC. “Every town government, school board, state agency, and every public official and employee, will have to pay attention to this.”

Toensing on Friday called the ruling "a complete vindication" and "a huge victory" for open government. "The most important part of the decision is the principle that it sets, which is to restore the Public Records Act and to ensure that we have access to Public records," Toensing said. "If it had gone the other way, if the trial court's decision had been maintained, it would have completely undermined the Public Records Act."

Robert Hemley, a First Amendment attorney with the Burlington firm Gravel and Shea, filed the amicus brief. “The decision makes it very clear that private email accounts are not going to be place where public records can be concealed from view," Hemley said. "This is a significant victory for those who want transparency in government because it eliminates from any future discussion the question of whether or not a document that is maintained on a private email server is outside the scope of the Public Records Act. Clearly, it is not.”

Sorrell could not be immediately reached for comment.

Brady Toensing

Attorney Brady Toensing. Pool photo by April McCullum/Burlington Free Press

The AG's office argued that communications on private email and texts were not public records and that requesters would have to prove that government business was conducted on private email. Superior Court Judge Robert Mello ruled that subjecting personal accounts to the public records law would be an invasion of privacy.

On appeal, the Vermont Attorney General changed its position and no longer argued that private emails generated by state officials for the public's business were exempt from the records law. Instead, the attorney general argued that state officials were not obliged to take steps to identify responsive records found on private accounts.

The Vermont Supreme Court remanded Mello's decision, and determined that records produced as a part of state business on private email are in fact subject to the public records law.

Toensing pressed the court to require state officials to sign an affidavit attesting that they had in fact searched all of their records for government emails. The justices declined to require an affidavit in the decision issued Friday.

Vermont Attorney General TJ Donovan declared the ruling a “victory” for the state, saying Friday it sets the guidelines for handling such requests and doesn’t allow for “carte blanche” access to the personal accounts of public employees.

“This provides the rules of the game, this is what we always asked for, give us guidance,” Donovan said. “We don’t dispute that if you do state business on your private account that it’s a public record, but what we weren’t going to do is allow carte blanche searches of people’s private emails, and that’s where we won.”

TJ Donovan

Attorney General TJ Donovan. File photo by Anne Galloway/VTDigger

The framework includes asking employees to provide any “responsive” records they have to a public records request in any private accounts, to describe the search they conducted, and to disclose any nonexempt record.

“This approach strikes a balance between protecting the privacy of state workers and ensuring the disclosure of those public records necessary to hold agencies accountable,” the decision read.

In this case, in claiming victory, Donovan points to a section of the decision that states that there was “no evidence” in this case that any employee has public records in a private account.

The ruling, however, calls on the Attorney General’s Office to “complete an adequate search consistent with our analysis” in response to the public records request.

“We will comply with the court order,” Donovan said. “If there are public records that are turned up, they’re be turned over.”

Jim Condos, the Vermont Secretary of State, says the supreme court decision "is both practical and idealistic."

"It settles the issue of the law and it provides the framework for how they could comply," Condos said.

Condos says the court ruled that it doesn't matter where the email is located, what matters is whether it was created doing state business.

"This decision doesn’t surprise me because it’s the position we’ve had in this office right along," he said.

The supreme court ruling cites state policy on email use, which warns state workers not to use personal email to conduct state business without approval from the secretary of the Agency of Administration. In addition, the policy says that any email or record produced on agency business is a public record -- "regardless of whether the record resides in a state-provided system or personal account."

Courts in two other states -- California and Washington -- have issued similar rulings.

“Although these decisions involve different statutes with distinct requirements,“ the ruling issued Friday by the state’s high court reads, “they rely on considerations that also apply to the Vermont (Public Records Act) and their reasoning accordingly adds some persuasive validation to our interpretation of Vermont’s public records law.

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Alan J. Keays

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