[B]URLINGTON — A superior court judge set a timeline Wednesday for the Vermont Attorney General’s office to conduct a search in a pitched public records battle involving GOP Vice Chair Brady Toensing.
Attorney General TJ Donovan will have until Nov. 29 to search the private email accounts of four current employees and to set a process for a similar search of five former employees.
The timeline set out Wednesday comes after a Vermont Supreme Court ruling in the records case, which held that state officials can be required to search private email and text message accounts for public records.
The case centered on a public records request by Toensing for material 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 internal emails to Toensing, but then balked when a request was made for records from the private accounts of Sorrell and eight other employees.
The Supreme Court held that state employees can be required to search their private accounts for records as long as the material requested meets the existing statutory definition of a public record.
Both sides claimed victory after the Supreme Court’s ruling with Donovan saying the decision would not give requesters “carte blanche” to access state employees private accounts. Toensing and open records advocates hailed the decision as a boon for government transparency.
Back in superior court Wednesday, Chief Assistant Attorney General Bill Griffin told Judge Robert Mello he would have a response to Toensing’s request as it pertains to the four current employees by Nov. 29, and an update on the timeline for responses from former employees on that date as well.
Griffin said that, as a practical matter, it’s going to be more difficult to ensure that former employees complete a search of their private accounts, hence the need for more time.
Griffin asked that Toensing consider removing some of the former employees, which include former Attorney General Bill Sorrell, from his request, or consider shortening the timeframe it covers, which is currently four years. Toensing said he’d be willing to discuss that with Griffin.
In return, Toensing had a request of his own.
In response to privacy concerns raised by the attorney general’s office, the Supreme Court agreed that state agencies should not conduct searches of its employees private accounts to determine if they contain public records.
Toensing had asked the court to require employees to sign a sworn affidavit attesting that they had searched their private accounts and turned over responsive records or that none existed.
The Supreme Court declined to impose such a requirement, instead writing in its decision that the AG’s search will be adequate if the employees are “trained to properly distinguish public and nonpublic records.”
Toensing told Judge Mello that he would like the opportunity to review with the attorney general’s office how that training will be conducted, saying that he was concerned the AG’s guidance to its employees would be “too narrow.”
“I don’t want to put these employees through this process twice if that’s at all possible,” Toensing said.
Judge Mello said the two sides should confer after the hearing to ensure the this “proceeds in an expeditious way and avoid that risk from happening,” adding that the employees shouldn’t have to jump through more hoops than necessary.
“This is all new law and everyone needs to digest what it means,” Mello said.
After Griffin and Toensing met, Toensing called a reporter to say Griffin had declined to discuss what guidance the employees would be given before conducting their search.
“He told me, ‘The AG’s office knows what a public record is,’” Toensing said, relating a portion of his conversation with Griffin.
Toensing said Griffin’s stance might require him to bring the case back before the Supreme Court in order to get further clarification on what employees should be told about how to determine what is a public record.
“This is all part of attrition warfare by the attorney general’s office, and it’s going to continue to waste taxpayer money,” Toensing said.
Griffin could not be reached to confirm Toensing’s account of their conversation, but the attorney general’s office dismissed Toensing’s allegations of subterfuge.
“Our attorneys know how to discern between what is a public record and what isn’t, and we’re going to fully comply with the Supreme Court’s order,” said Joshua Diamond, deputy attorney general.
Toensing said during Wednesday’s hearing that he would file a motion by Dec. 8 seeking to have the state cover his costs litigating the case. Griffin said that timeline would work, but indicated the state would fight such a motion.
