VTPOLI

State: Public records law generally excludes private email accounts

Burlington Free Press

MONTPELIER - The state of Vermont argued Wednesday that government employees' personal email accounts should be shielded, in most cases, from the reach of the state public records law.

"Does accepting state employment mean that any member of the public can compel a search of your personal email and text messaging accounts on demand?" Solicitor General Ben Battles asked at the Vermont Supreme Court in Montpelier.

Associate Justice Marilyn Skoglund, center, asks a question during a public records case hearing at the Vermont Supreme Court on June 7, 2017.

Vermonters should assume that all matters of public record can be found in the government email system, Battles argued, unless there's evidence to the contrary.

Vermont changed its email policy in 2015 after the controversy over former Secretary of State Hillary Clinton's private email account, and over concern that state employees were relying on personal email accounts.

State employees are now expected to use their government email address unless they receive special permission to use a personal account.

AG's office cites broad exemption from public records law

The arguments about emails came as the Attorney General's Office defended its response to a public records request from Brady Toensing.

Attorney Brady Toensing argues Vermont's public records law applies to state officials' private email accounts during oral argument at the Vermont Supreme Court on June 7, 2017.

Toensing, an attorney based in Charlotte and Washington, D.C., who serves as vice-chairman of the Vermont Republican Party, wanted to see state employees' communications with more than two dozen people.

The Vermont Secretary of State's Office and other observers have historically said that all government-related emails are public records, regardless of whether they reside on government accounts or personal accounts.

Toensing sued the state after the Attorney General's Office declined to ask state employees whether theirpersonal email accounts contained any responsive public records, and he appealed again to the Supreme Court when a lower courtdecided in favor of the state.

The Vermont Press Association, a group of news organizations that includes the Burlington Free Press, filed a brief at the Vermont Supreme Court in support of Toensing's appeal.

"This case is about ensuring an open government, which is a fundamental principle of our democracy and the law's sole purpose," Toensing said at Wednesday's hearing.

“If it is true, as the trial court found, that our public records law does not reach public records on non-governmental accounts," Toensing continued, "and that a government employee can abate its reach simply by setting up a private email account, then our law is fundamentally undermined, and we should abandon any pretense of claiming to have an open government."

Chief Justice Paul Reiber, center, listens as the Vermont Attorney General's Office presents its case during a public records discussion at the Vermont Supreme Court on June 7, 2017.

Battles argued in a brief filed with the court that the state is not arguing that government employees should evade public-records law by using private email accounts.

He also argued that "the Court should recognize a presumption that state employees do not use their personal email accounts to conduct official business and require that a public records requester rebut that presumption."

Associate Justice Harold Eaton asked whether the state should be allowed to ask employees about their use of personal accounts.

"Have you ever conducted state business on your personal computer, yes or no?" Eaton said. "What’s the invasion of privacy there?"

Battles did not directly answer the question, but said any search of a personal email account would raise the possibility of lawsuits and invasions of privacy.

Attorneys Robert Hemley, left, and Brady Toensing listen to the Vermont Attorney General's Office case during oral argument at the Vermont Supreme Court on June 7, 2017.

Battles also argued that the Legislature should update and clarify the public records law in response to the email dispute.

The high court's decision is expected to have significant implications for Vermont's government transparency laws.

Gov. Phil Scott, who was elected on a platform of transparency and accountability, believes Vermonters requesting government records should have to prove that state employees are using personal accounts for government business before getting access to those records.

"Unless it's proved that they’re doing it," Scott said at an April news conference, "I don't think that we should be able to have carte blanche in going into their personal accounts."

Contact April McCullum at 802-660-1863 or amccullum@freepressmedia.com. Follow her on Twitter at @April_McCullum.
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