OPINION

Editorial: No hiding behind private email

Free Press Editorial Board

The Vermont Supreme Court made the right call by making clear that the government cannot escape public scrutiny by hiding behind private email accounts.

The state’s highest court ruled on Oct. 20 that public records stored on government employees private email accounts are subject to Vermont’s public records law.

The decision settles an issue about the reach of the public records law that has dragged on too long. The court came down on the side of government transparency and accountability.

The underlying message is that those who work for the state must stop using private email for official government business.

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Associate Justice Beth Robinson, in her opinion on behalf of the court, stated that “records produced or acquired in the course of agency business are public records under the PRA (Public Records Act), regardless of whether they are located in private accounts of state employees or officials or on the state system.”

The ruling came in connection with a lawsuit filed by Brady Toensing, an attorney based in Washington, D.C., and Charlotte who is a past vice chairman of the Vermont Republican Party. Toensing had sought emails including those in non-government private accounts involving then-Attorney General William Sorrell and others at the Vermont Attorney General’s Office.

The Attorney General’s Office argued that seeking emails held in personal accounts raises privacy concerns. Superior Court Judge Robert Mello ruled that the public records law only applied to information in government possession.

However, in his Feb. 9 ruling, Mello said, “To be sure, the idea that state officials and employees can avoid valid public records requests merely by conducting official work-related communications on private email and text messaging accounts is a serious and, frankly, disturbing concern.” He left the remedy in the hands of lawmakers.

Instead, the Supreme Court delivered that remedy saying government employees must make “an adequate search” of their private accounts for anything that might be a public record. The justices addressed the privacy concern by saying that the employees are not compelled to turn over their passwords or otherwise open their accounts for a search by others.

The state Supreme Court merely confirms what should be apparent to any reasonable Vermonter, save those select few in government who never seem to grasp the basic principle of open government.

The ruling makes clear that where information is kept does nothing to alter its status as a public record.

Contact Engagement Editor Aki Soga at asoga@freepressmedia.com. Join the conversation online at BurlingtonFreePress.com or send a letter to the editor to letters@freepressmedia.com.