Vt. Supreme Court: Private emails of public officials are fair game

By Alan J. Keays and Anne Galloway

The Vermont Supreme Court last week 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. “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,” he said.

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.”

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.”

Vermont Secretary of State Jim Condos called the supreme court decision “both practical and idealistic.” 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 – a principle already part of the state email policy for employees.

The ruling cites state email policy, which warns state workers not to use personal email to conduct state business without approval from the secretary of the Agency of Administration. The policy also 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.”

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