VT Supreme Court: State employees must disclose records on personal email

The Vermont Supreme Court has ruled that the state public records law requires government employees to disclose public records stored on their personal email accounts and phones.

The court's unanimous decision Friday overturns a lower court ruling and clarifies the balance between personal privacy and government accountability, winning praise from both sides of the case.

The high court clarified that the Vermont Public Records Act does not require government employees to turn over the keys to their personal accounts for a public records search, a possibility that raised serious privacy concerns. Instead, employees must be asked to conduct "an adequate search" of their own personal accounts.

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Associate Justice Beth Robinson wrote for the court that "records produced or acquired in the course of agency business are public records under the PRA, regardless of whether they are located in private accounts of state employees or officials or on the state system."

The case began when attorney Brady Toensing requested emails and other communications from nine state employees and officials, including messages that were sent from personal email or text messaging accounts.

The Attorney General's Office did not share any records from employees' personal accounts, arguing that the office was not required to take any steps to find public records there because of privacy concerns.

The case went to Vermont Superior Court Judge Robert Mello, who ruled that officials could effectively avoid the reach of the public records law by sending messages on personal accounts, unless the Legislature decided to close the loophole.

Toensing appealed to the Vermont Supreme Court with support from the Vermont Press Association, which includes the Burlington Free Press, and other journalism organizations.

The Vermont Supreme Court sided with Toensing while placing some limits on the scope of his request. 

Toensing was relieved by the result.

"It's a complete vindication," Toensing said Friday, "and it's a huge victory for open government, which is the foundation for our democracy."

Attorney General T.J. Donovan echoed the sentiment, praising the Supreme Court for giving guidance on how the government should respond to public records requests. Donovan said his office will now develop a protocol for asking state employees to search their accounts.

"I think this is a great decision," Donovan said. "I think this is a victory for the state. I think it’s a victory for open government. I think it’s a victory for personal privacy."

The Vermont Press Association also cheered the ruling, calling it a "victory for open government, transparency and accountability."

The case has been sent back to the Vermont Superior Court so that the Attorney General's Office can "complete an adequate search." The lower court will also award attorney's fees.

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The high court ruling could impact the course of a similar public records case in Vermont Superior Court involving former Attorney General William Sorrell's use of a personal email account. Sorrell is scheduled to sit for a deposition in that case Monday.

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