Montpelier
The central issue is the application of the state’s public records law to private email and text message accounts belonging to public officials.
A lower court ruled earlier this year that private accounts are protected from public scrutiny.
That ruling creates a “gigantic” loophole in the law, according to Bob Hemley, a First Amendment lawyer with Gravel and Shea. Helmley represents a group of media outlets and transparency advocates, including VTDigger, that filed an amicus brief in the case.
The case, Toensing v. the Attorney General of Vermont, stems from a request by Brady Toensing, the Vermont GOP vice chairman, for public records related to campaign finance and pay-to-play allegations against former Attorney General William Sorrell.
The state Attorney General’s Office gave Toensing thousands of emails but balked when he then sought records from the private accounts of Sorrell and eight other employees.
A Superior Court judge backed the state’s interpretation of the law.
In testimony on Wednesday, Toensing told the justices that this case is about “ensuring open government,” which he said is a fundamental principle of democracy and the “sole purpose” of Vermont’s public records law.
“If it is true what the trial court found, that our public records law does not reach public records on nongovernmental accounts, and a governmental employee can evade its reach simply by sending on a private email account, then our law is fundamentally undermined,” Toensing said.
Solicitor General Benjamin Battles, representing the Attorney General’s Office, appeared to concede that documents on the private accounts of government employees can be subject to the public records law.
But he attacked Toensing’s request as unreasonable and overly broad.
Such a request would force the attorney general to invade its employees’ privacy without any indication that relevant public records do exist on private accounts, he said.
“We are assuming for the sake of argument that you can have a public record on a personal email system,” Battles told the justices. “We’re saying with that assumption his request does not justify production here, because the (Attorney General’s Office) performed a reasonable search, and (Toensing) hasn’t come forward with any evidence to show the search is unreasonable.”
Toensing said the attorney general is trying to create a “burden of rebuttal” that doesn’t exist in the public records law and would be “unreachable in most cases.”