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.
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Public officials need to stop using private emails for public business. Same with cell phones. That is how we keep the constitutional protections against searches and seizure and our public records laws. Duh and done.
RE: “Vermont Superior Court judge has given state officials an easy way to circumvent the public records law.”
Not so fast. Judge Mello clearly read and applied VSA Title 1, Sub Chapter 3 as its written. And Vermont law relies, in great part, on the tenants in The Freedom of Information Act, 5 U.S.C. 552. If there is a ‘gift’ in play, it’s not by Judge Mello.
If Secretary Condos is truly concerned, he should cite the specific affronted provisions in these statutes. And Seven Days should require the citations before substituting the editorial declaration in the story’s headline and above referenced sentence as ‘news’.
The custodian of the records, created or received, no matter what device it was created on. Use of personal email addresses to create messages on work matters happen all the time. Setting the tone at the top means local governments will use this definition created at the state level as protection from investigation.
Government officials use private email accounts in conducting government business for one reason: to thwart the open records laws, to hide public records from the public, to keep their bribe-taking secret, to keep their unseemly deals from being exposed to light of day. And now they’ve got a judge who admits that the use of private email for public business is “disturbing,” but who chooses to interpret the Vermont public records law in a way that essentially tells these government officials: go ahead, keep using your private email accounts for government business and no one will find out what you’re doing.
I read Judge Mello’s interpretation of the law. It could just as well have gone the other way.
I have no beef with private email. Private email is fine. Private email is lovely. Private email is beautiful. Private email is for PRIVATE shit. Private email is not for your GOVERNMENT shit.
I say, make it a felony and an impeachable offense for any Vermont government employees, especially governors, lieutenant governors, and attorneys general, to be caught using a private email account to discuss their GOVERNMENT business, and let’s see what happens.