Vermont high court says private emails can be public records
By WILSON RING
Oct. 20, 2017
MONTPELIER, Vt. (AP) — The Vermont Supreme Court ruled Friday that the state's public records law can extend to state employees' private email accounts if messages in them otherwise meet the state's definition of public records.
The ruling suggests methods the state can use to ask employees if they have messages that would be subjected to Public Records Act.
"This approach strikes a balance between protecting the privacy of state workers and ensuring the disclosure of those public records necessary to hold agencies accountable," said the decision, written by Justice Beth Robinson.
Both Charlotte attorney Brady Toensing, who brought the case to the Supreme Court after a lower court ruled in favor of the state, and Vermont Attorney General T.J. Donovan called the ruling a victory.
"It is common sense and a complete vindication," said Toensing. "It is a huge victory for open government, which is the foundation of our democracy and the entire purpose of the law."
Donovan said the ruling was a victory because it protects state employees while establishing clear guidelines about how to handle public records requests for information on private systems.
"By providing guidance going forward about what is a public record, what standard state government should be doing to comply with the public records act, that's a win for open government and transparency," Donovan said.
Donovan said his office would develop procedures to comply with the ruling.
Vermont policy requires state employees to use their government email for public business unless they receive special permission to use personal accounts. The state changed its email policy in 2015 after it became public that former Secretary of State Hillary Clinton used a private email account to conduct public business.
The Vermont case began in 2011 when Toensing, who frequently files public records requests, sought the records of a number of state employees and their electronic communication with outside groups.
Those records were produced in early 2016, but Toensing said they did not include communication from private email accounts. The state refused to provide the additional records because on grounds that the state public records law did not extend to private accounts or electronic devices.
Toensing took his case to the Superior Court, arguing that documents in private email systems that deal with state business should be subject to the public records law. The Superior Court agreed with the attorney general's office.
Toensing then appealed to the Supreme Court.
"We conclude that the (Public Records Act's) definition of 'public record' includes digital documents stored in private accounts, but emphasize that it extends only to documents that otherwise meet the definition of public records," the high court's ruling said.