A Vermont Superior Court judge has given state officials an easy way to circumvent the public records law. In response to a lawsuit, Judge Robert Mello ruled in February that government agencies don't have to search private email accounts or private cellphones when responding to public records requests.
The suit's plaintiff, Brady Toensing, appealed the decision Monday to the Vermont Supreme Court, arguing that the ruling creates a "gaping loophole" in the state's public records law.
It's the latest in a long-running battle that Toensing, a Charlotte attorney and the vice chair of the Vermont Republican Party, has waged against former Democratic attorney general Bill Sorrell. Toensing sued the Vermont Attorney General's Office last year after it rejected his request to search "nongovernmental" email accounts and text messages for records. He was looking for communications Sorrell may have had with lobbyists.
Mello himself noted the loophole his ruling created, but said it's up to the legislature — not the courts — to fix the problem.
"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 seriously and, frankly, disturbing concern," he wrote in his decision.
Secretary of State Jim Condos also expressed alarm about the decision.
"If the judge's interpretation were to stand, there's nothing that would stop any government official from using a private email or private cell phone to do business," he told Seven Days. "It really flies in the face of public records [statute]."
Vermont law defines a public record as "any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business." Toensing argues that this definition is "unlimited by location or possession."
In his decision, Mello acknowledged that the definition is "undoubtedly broad," but he concluded that it didn't encompass public documents stored in private accounts.
Mello ruled that the act addresses public agencies, not individuals, which "patently implies that a record must be in the custody or control of the agency to be subject to search or disclosure."
Searching employees' private accounts, he also noted, would raise "serious privacy concerns" that could undermine the U.S. Constitution's First and 14th amendments.