[A]ttorney Brady Toensing says the only fishing expedition he’s interested in pursuing occurred in 2016 when former Attorney General William Sorrell’s cellphone — and all the text messages Toensing wanted reviewed — was ruined by water while casting in Connecticut.
Three years after making his initial request — just weeks from the one year anniversary of a unanimous, favorable ruling from the Vermont Supreme Court that official business conducted on private accounts is subject to public records laws — Toensing said he still remains stymied in efforts to get Sorrell to produce all of the emails and texts from his private accounts that Toensing says were required by the high court.
Toensing has been seeking Sorrell’s private emails since 2015 and his Ahab-like pursuit has exposed holes and deficiencies in the system and led to widely differing court opinions on what information public employees need to turn over. The case also casts light on a system that observers say is fraught with inconsistency — with different agencies responding to similar public records requests with a light or heavy hand or charging different amounts — and a disposition across state government to block records when the media or open government advocates come asking.
“Too often, the knee-jerk reaction is to say no and make them appeal that,” Deputy Secretary of State Chris Winters said of public records requests. Winters said citizens and journalists have met “an almost reflexive instinct on officials’ part to deny requests for records,” leaving requesters few options of then what can be costly, time-consuming lawsuits.
In Toensing’s case and many other battles over access to public records, the lead blocker is William Griffin, the chief assistant attorney general. Griffin, a wily 35-year veteran, has defended the state with such vigor against news organizations and public advocacy groups filing public records requests that he’s earned the nickname “Dr. No.” (The governor’s legal counsel, Jaye Pershing Johnson, recently described disagreeing with a “conservative” position taken by Griffin in a dispute between the governor’s office and the AG’s office.)
Secretary of State Jim Condos said his own habit of routinely turning over documents has created conflict with Griffin, who gave him grief for providing emails that were requested by VTDigger several years ago related to the EB-5 scandal.
“As I’ve stated many times, when I first took office the whole attitude about public records was deny, deny, deny and force people to go to court and get documents,” Condos said. “And we’ve made some changes and improved it but there’s still that sense of find a way around the law, rather than provide the documents.”
Those seeking records say the challenge extends beyond the attorney general’s office.
In February, for example, the Agency of Natural Resources denied a request by several environmental groups to release a document about water cleanup efforts, even after one arm of the agency had already shared the same document with the newspaper Seven Days.
Open government advocates have proposed sending all record requests to a single department that would cover all agencies. Centralizing the requests could also remove another obstacle to securing documents: the sometimes high cost to the requester and disparities in the fees agencies charge, with some agencies fulfilling requests for free as part of the workday, while others agencies issue six-figure quotes to fulfill more complicated requests. Many times a chunk of the cost involves redaction — reviewing a document for information that is private or protected because of the hundreds of exemptions in Vermont Access to Public Records Act (PRA).
An August court decision held that “reasonable staff time” costs can be charged to look for records after the first 30 minutes, which are free. Emphasizing the need to review and redact documents, the court said the costs could be applied even if a group wanted to only inspect and not copy the documents. The court said an inspection requires the same prior review.
That opinion contradicted an argument by the Vermont Natural Resources Council, which had balked when the agriculture department recently quoted more than $1,000 to prepare documents involving the agency’s enforcement efforts against polluting farms. VNRC cited a previous Superior Court decision and language from a Vermont Supreme Court case that indicated the law only allowed costs for copying, not inspecting, documents.
In a 2011 email, Beth Robinson, then legal counsel to Shumlin who was later appointed to the Vermont Supreme Court, supported charging those who make extraordinary requests. “That isn’t because those requests are inappropriate or illegitimate; many of them are quite worthy. But our duty to all taxpayers, and all of the pressing claims on the state coffers, requires that we ask that those who make the most of the burdensome public records requests bear a portion of the cost.”
“This is not an ‘anti-transparency’ measure,” Robinson wrote, noting state park users “can reasonably be asked to help pay the costs of that service.”
Even though the state has a uniform fee schedule for charges, advocates said different agencies come up with different estimates of the time it will take to comply with a request. In many cases, the state is aided by a computer system that allows for specific searches. In other cases, written documents need to be found and copied.
Jen Duggan, who served as legal counsel at ANR and now works at the Conservation Law Foundation, said the biggest step forward would be to have all state government records automatically placed and available online. Finding paper documents is the biggest time-gobbler in fulfilling requests, she said.
“When you have electronic records and all the information is available, it’s not cumbersome to provide information. When you are looking for paper files in cabinet drawers, it’s a lot more cumbersome,” she said.
Another idea raised by journalists and advocates for more access to public records, including Condos, would be to have an ombudsman settle disputes about what would be released after a private review. That idea was among several discussed this year in the Legislature to gain more access to records, but was not approved.
During that discussion, advocates noted how difficult gaining access can be.
The Vermont chapter of the American Civil Liberties Union earlier this year highlighted several recent battles in arguing for reform, including Seven Days’ fight with the city of Burlington over records involving the sale of Burlington Telecom, a former Rutland Herald reporter’s suit with the Vermont Agency of Education over school bullying data, and VTDigger.org’s efforts to obtain documents from state officials in connection with the EB-5 scandal in the Northeast Kingdom.
The public records act has literally hundreds of exemptions that can cited to prevent disclosure. State government is required to approve or deny a records request within 10 business days. A denial can be appealed. However, as noted by former ANR Secretary Deb Markowitz, an appeal of a denial is typically reviewed by the same person who issued the denial or their boss.
Some of the requests are wide-ranging, daunting and viewed as fishing expeditions. Toensing, a Charlotte attorney and vice chair of the Vermont Republican Party, wants Sorrell, a Democrat, to turn over relevant records from his private email account and personal cellphone in connection with a series of allegations.
In one of Toensing’s cases against Sorrell, he requested communications over a four-year period between nine individuals in the attorney general’s office and 30 other individuals and organizations. That request produced 13,629 emails that were then consolidated into 1,129 email chains. The attorney general’s office said it spent more than 250 hours reviewing the documents and responding to a request by the Energy and Environment Legal Institute, which Toensing represents.
In 2011, the Legislature passed a law designed to help those seeking public documents, which allows people who are denied but later win in court to be entitled to recover legal fees. A judge ordered the attorney general’s office to pay $66,000 for improperly denying Toensing access to public records in three separate cases. (He settled for $50,000.) The AG’s office not only challenged whether EELI had prevailed, but argued his request to be paid $325 per hour was excessive. Superior Court Judge Mary Miles Teachout rejected that claim by the attorney general.
Another obstacle Griffin has put up is whether it makes sense for the state to provide records to groups that are perceived as potential adversaries, including the press. In a system where those seeking records are often at an inherent disadvantage — sometimes seeking a needle in a haystack and sometimes guessing what search terms to use — Griffin told a judge last year that not all petitioners are treated equally or impartially, including Toensing and the EELI.
“We get a request from [Energy and Environment Legal Institute] and so one thing we might consider is where are they — who are these people?” Griffin said in a transcript of a Superior Court hearing. “Where are they going with this? And we Google them and we find, you know, coal or Exxon or whatever — and so we’re thinking this is — we better — we better give this some thought before we — before we share information with this entity.”
“Or it might be a news organization and we think, well, what are they going to do with it?” Griffin continued. “Well, they’re going to publish it to the world. So that would be — I mean, that would be my mental impression and, you know, let’s exercise some caution. Is there some public interest publishing this information at this time? Probably not.”
Griffin’s comments caused such a stir that Attorney General TJ Donovan, who succeeded Sorrell in 2016, sought to walk them back, saying Griffin “was unequivocal” that access to public records applies equally at all. Googling a petitioner, Donovan told Seven Days “is just to provide context. It’s not a determining factor about whether or not the records request is granted or denied, it’s just to say, who are these guys?”
In the Toensing cases, the AG’s office adopted several different arguments against giving up documents. Representing an oil industry group, Toensing accused Sorrell, the state’s top law enforcer, of improperly colluding with other state’s attorneys general about an investigation of ExxonMobil. He also filed a complaint alleging Sorrell improperly took an $10,000 donation from a law firm he hired to work on a potentially lucrative case. Sorrell, who stepped down in 2016, was cleared by an independent review of campaign finance allegations but the investigation did not address whether he violated the law. State police opted not to investigate.
One of the first lines of defense the attorney general’s office took with Toensing was the hard-line view that all records involving its office were off limits. They likened the AG’s office to a law firm whose records are protected by attorney-client privilege. In July 2017, Judge Teachout rejected that argument, noting some records clearly needed to be kept private but that other correspondence should be disclosed.
According to sources, another related way attorneys for the state have tried to limit access to records is to have correspondence copied to a lawyer so the state can claim an attorney-client exemption. VNRC policy director Jon Groveman said he advised against copying attorneys in an attempt to avoid the disclosure of documents noting only documents where an attorney is providing legal advice or where an attorneys legal thinking on a matter is set forth are exempt from disclosure. Copying attorneys alone does not automatically make a document exempt from disclosure, he said.
Later in the Toensing case, the AG’s office argued the only correspondence subject to PRA were those in employee state accounts and that private emails or texts were not subject to public records requests. Judge Robert Mello agreed the private accounts were off limits but also recognized the danger.
“To be sure, the idea that state officials and employees can avoid valid public records requests merely by conducting official work-related communication on private email and text messaging accounts is a serious and, frankly, disturbing concern,” Mello wrote. His decision, he said, “does not seek to diminish that concern” but to highlight the need for the Legislature to address the issue.
Last October, the Supreme Court overturned Mello, maintaining that correspondance on private accounts where state business was conducted should be disclosed. In the ruling, Justice Robinson was categorical that private accounts where state business was conducted are subject to review. She noted the state’s employee policy puts workers “on notice” not to use their personal accounts for state business and that a “public record” is any document produced doing state business, whether on a state or personal account. Robinson emphasized only emails involving state business had to be disclosed and said some of what Toensing was seeking went beyond that scope. Requiring disclosure of nonpublic records would raise serious privacy concerns, Robinson wrote.
“The notion that state employees have a privacy interest in records that are by law public records — those produced or acquired in the course of agency business — is incongruous,” Robinson wrote.
Toensing suggested, and the court agreed, that having employees review their own accounts and turn over relevant emails and texts, as opposed to having the attorney general’s office conduct the review, would protect privacy concerns.
But in court pleadings since, Toensing and Griffin have been arguing whether the review Sorrell conducted of his private emails was sufficient.
Sorrell’s initial search of his private Gmail account produced more than 5,000 “potentially responsive” emails, according to Griffin, who asked Toensing in February to narrow his request. Griffin wrote the high court had already found “the search terms you have chosen are facially overbroad and will return private records” that don’t involve state business.
In a February exchange, Toensing and Griffin tangled over whether Sorrell should do a manual review of his emails, whether an outside vendor needed to be hired to do the review, and whether Toensing would give up his claims after Sorrell completed the review. That review never happened.
In late June, Toensing told Griffin that “it appears these games are designed to frustrate and delay a full and proper response … and are consistent with the attrition warfare tactics you have employed in response to requests or requesters you disfavor.”
In July, Toensing complained to Griffin about the “obstinance” of the attorney general’s office in complying with his requests.
“The odyssey for the production of public records began more than three years ago and is a needless and expensive forced journey entirely of the AGO’s making. The AGO’s refusal to abide by its legal obligations has cost hundreds of hours and tens of thousand of dollars in resources, both mine and the taxpayers. Yet the obstinance continues,” Toensing told Griffin. He went on to accuse the office of paying “lip service” to the goals of the Public Records Act while promoting its importance to open government and transparency.
In August, Griffin shot back that the AGO’s office and Sorrell had “at all times worked in good faith” to respond to Toensing’s requests.
“Your characterization of the AGO’s advice to Mr. Sorrell is inaccurate. I reviewed (the Vermont Supreme Court ruling) with other attorneys within the AGO and advised Mr. Sorrell that he was required to comply with the decision. Mr. Sorrell’s separate counsel also reviewed (the case) and advised Mr. Sorrell about his obligations. Mr. Sorrell himself also reviewed (the case). Mr. Sorrell was thoroughly advised about his obligations under (the case) and responded to your production in a manner consistent with those obligations,” Griffin wrote Toensing.
When Toensing questioned why there was a discrepancy found between the number of emails Sorrell exchanged with a lobbyist and the number turned over, Griffin said the other communications were private.
“Public officials are not required to stop having private lives to hold office. They are allowed to communicate privately with individuals about private matter,” Griffin wrote.
In the letter, Griffin also rejected Toensing’s suggestion for a private, third-party review to see if the emails were public or private, reminding him the Supreme Court raised concerns when it said “any discussion of requiring, or even allowing, a public agency to ‘search’ the private email accounts of its employees would trigger privacy concerns of the highest order.”
Griffin could not be reached this week for comment. Assistant Attorney General Josh Diamond said Friday that the attorney general’s office has acted in good faith throughout the Toensing case and with others. He downplayed the time it has taken to resolve the Toensing litigation.
“Each case is unique based up on the litigant and the subject and the issues involved. The cases involving Mr. Toensing and his clients have been litigated vigorously by those parties and sometimes it takes time to resolve those matters,” Diamond said, adding the office was trying to balance the public’s right to know while also protecting privacy. He touted an AG website set up since Donovan took office that shows public records requests and their outcomes as a sign of transparency.
Text messages were also included in the court decisions. When Toensing asked Griffin to confirm that Sorrell and others had reviewed their private texts to see if any state business was conducted on their personal phones, Griffin gave this response.
“Mr. Sorrell does not have any text messages from the relevant time period. In April 2016, his phone was destroyed by water damage during a fishing trip. As a result, Mr. Sorrell does not have text messages from the period prior to the trip,” Griffin wrote several weeks ago.
Sorrell said this week that he was fly-fishing with buddies on the Farmington River in Connecticut wearing hip waders when he “went in a little deeper than anticipated” and later discovered his phone, in a chest pocket, was soaked.
“It was in about two inches of water,” Sorrell said Wednesday. He was able to later retrieve his photos from the internet cloud but said had no backup for his text messages. (Diamond said Friday he was not aware of any additional efforts by his office to try and retrieve the text messages.)
“I wish I’d at least had a big fish on. Or I needed to be a few inches taller that day,” Sorrell said.
Sorrell said when he replaced the phone, he purchased a $40 waterproof kit.
He scoffed at the idea of texting on his private phone to go after ExxonMobil or to conduct state business.
“I wasn’t using text messages to get around state records, so I didn’t think it was a big deal. I just thought it was unfortunate that I’d lost my phone,” Sorrell said.
Asked about the ongoing dispute between Griffin and Toensing, Sorrell sounded surprised.
“I thought it was over,” he said.
Later he added: “It’s in my rearview mirror unless I hear something else.”
