George Orwell
Given the furor last year over Hillary Clinton’s use of a private email account while she was secretary of state, it is perhaps surprising that the court’s intervention was required to make the point that documents that are subject to Vermont’s Public Records Act must be disclosed whether they exist in a government archive or reside in an employee’s private email account, so long as they do not otherwise qualify for an exemption under the law.
But in February, a Superior Court judge had reached the opposite and alarming conclusion that the law applied only to documents in the custody of an agency, and that it would be an invasion of privacy to subject employees’ personal email and text accounts to the records act.
This decision was appealed to the Supreme Court by Brady Toensing, a lawyer who lives in Charlotte and is a partner in a high-powered Washington law firm. Toensing, who attended Hanover High School, is also vice chairman of the Vermont Republican Party, and his numerous public records requests in recent years have proven to be a thorn in the paw of Vermont Democrats. In this case, the target was then-Attorney General William Sorrell and other officials in his office. Toensing requested documents from them whether they existed in the state system or in their private email accounts. The attorney general’s office provided documents that were in its custody but declined to search the personal email accounts.
In reversing the lower court decision, the Supreme Court unanimously concluded that the law’s definition of a public record “includes digital documents stored in private accounts,” but emphasized “that it extends only to documents that otherwise meet the definition of public records.” To reach a different conclusion is almost unimaginable, for it would invite officials to routinely conduct the public’s business privately, beyond the reach of public scrutiny. Certainly no one would think that if a public official removed files from her office and stored them at a private residence they would no longer be regarded as public records subject to disclosure.
Moreover, Vermont revised its policy on internet use in 2015 in response to the Hillary Clinton disclosures. It now says that employees with state email accounts must not routinely use their personal email accounts to conduct state business unless the secretary of administration approves; and that a public record is any record produced or acquired in the course of agency business, whether it resides in a state-provided system or a personal account. This is sound policy and should provide a model for Vermont municipalities, which are also subject to the Public Records Act.
In making this ruling, the Supreme Court was not deaf to the privacy concerns raised at the trial court level. It declared that, “Any discussion of requiring, or even allowing, a public agency to ‘search’ the private email accounts of its employees would trigger privacy concerns of the highest order.” It went on to provide some guidelines. In the case at issue, the court said, the obligation to search for the records would be satisfied if the officials and employees whose records were sought were properly trained to distinguish between public and nonpublic records; if the agency made a good faith request to those officials to provide any records subject to disclosure; and if they responded “in a manner that provides reasonable assurance of an adequate search.”
Obviously, it would be more straightforward if government officials simply confined their transactions of the public’s business to their publicly provided email accounts, but just as obviously, there may be occasions when this is difficult in the digital age. But those occasions ought to be exceedingly rare. We think the court’s guidance strikes an appropriate balance while unequivocally affirming the public’s right to obtain information with which to hold government accountable.