Toensing v. The Attorney General of Vermont

         On Appeal from Superior Court, Chittenden Unit, Civil Division

          Robert A. Mello, J. Brady C. Toensing of diGenova & Toensing, Washington, D.C., for Plaintiff-Appellant. Thomas J. Donovan, Jr. Attorney General, and Benjamin D. Battles, Solicitor General, Montpelier, for Defendant-Appellee.

          Robert B. Hemley of Gravel & Shea, P.C., Burlington, and Timothy Cornell of Cornell Dolan, P.C., Boston, Massachusetts, for Amici Curiae Vermont Journalism Trust, Caledonian-Record Publishing Co., New England First Amendment Coalition, The Vermont Press Association, and Da Capo Publishing, Inc.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. At issue in this appeal is whether, under the Vermont Access to Public Records Act (PRA), a government agency must ask state employees to determine whether they possess public records in digital form in their personal accounts when a requester specifically requests communications between specified state employees and third parties, including records that can be found only in the individual state employee's personal account. We conclude that the PRA'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. On the facts of this case, the agency was required to ask specified state employees to provide public records from their personal accounts in response to plaintiff's public records request. Accordingly, we reverse and remand.

         ¶ 2. The undisputed facts are as follows. On May 12, 2015, plaintiff Brady Toensing submitted a PRA request to then-Attorney General William Sorrell. Among other things, plaintiff requested responsive records from "January 1, 2012 to present" from eleven employees and officials in the Office of the Attorney General (AGO). In particular, he asked for: "[a]ny and all communications with or documents related to" forty-four individuals and entities and "communications received from or sent to" any email addresses with one of four domain names. Plaintiff's request stated that "[t]hese requests include, but are not limited to, communications received or sent on a private email account . . . or private text messaging account." Plaintiff submitted a revised request on December 11, 2015, that requested records from "January 1, 2011 to present" from nine state employees and officials and asked for "[a]ny and all communications with and documents related to" twenty-seven individuals and three domain names. Per an agreement with plaintiff, the AGO retained an outside contractor at plaintiff's expense to conduct a search of the State's Microsoft Exchange Enterprise Vault to identify emails responsive to plaintiff's request.

         ¶ 3. The contractor the AGO hired to search for records identified 13, 629 responsive emails in the state system, which it consolidated into 1129 email chains. The AGO produced records on a rolling basis from February 5, 2016, through April 28, 2016. The AGO's final response, embodied in a letter from Chief Assistant Attorney General William Griffin, identified the responsive documents the AGO had provided, and described the documents it had withheld on the ground that they were not public records or were public records exempt from disclosure under the PRA.

         ¶ 4. In May, plaintiff wrote Chief Assistant Attorney General Griffin indicating that during the course of his numerous communications with the AGO, he had emphasized that his request encompassed communications sent to and received from the private accounts of the identified state employees, but that it did not appear that the nine AGO employees had searched for and produced responsive emails and text messages from their personal accounts. He added that, if the AGO was denying his request to the extent it included responsive records and text messages in personal accounts, the AGO should treat his letter as an administrative appeal of that denial.

         ¶ 5. After plaintiff confirmed that the only ground for appeal he was asserting in connection with the AGO's response to the records request was the AGO's refusal "to produce, or even search for, responsive public records that may be kept on private email or text messaging accounts, " Deputy Attorney General Susanne Young denied plaintiff's administrative appeal. The denial rested on three bases. First, that the PRA only addresses records generated or received by a public agency, and does not extend to private accounts or electronic devices that are not accessible to the agency. Second, there is no basis to conclude that the Legislature would have expected state agencies to conduct searches of the private accounts of state officials and employees, given the law's attempt to balance the interest of public accountability against privacy interests. Third, even assuming that an agency may be obligated in some cases to attempt to search a private account, plaintiff did not provide a sufficient justification for his request in this case.

         ¶ 6. Plaintiff filed an action in the superior court seeking declaratory and injunctive relief in connection with the AGO's denial. Among other things, he sought a declaration that responsive records "that are related in any way to the individual's employment at the state agency" are public records subject to release under the PRA, "regardless of whether those records are stored on a government or private account." He further requested a declaration that the PRA "requires a good-faith search for records" and that the AGO must release the requested records "or segregable portions thereof subject to legitimate exemptions." He sought an injunction compelling the AGO "to produce (or order its employees to produce) all records responsive to plaintiff's [PRA] requests, subject to legitimate withholdings." The AGO conceded in its answer that it had declined to search private e-mail or text messaging accounts in response to plaintiff's public records request.

         ¶ 7. In August, the AGO filed a motion for summary judgment, arguing that communications stored on private email and text messaging accounts are not public records under the PRA. If the court determined that information stored in private accounts was subject to the PRA, the AGO argued that an individual who requests public records stored in private accounts should have to show, first, that agency business was conducted using private accounts and, second, that a search of those accounts was necessary to review agency action. In his opposition, plaintiff emphasized that on the record in this case, asking employees to search their own accounts for responsive records, and then disclosing those records, with an index of those withheld on account of exemptions, would be sufficient to meet the state's obligation to conduct a good faith "search" in response to his records request.

         ¶ 8. The trial court granted the AGO's motion in February 2017. The court concluded that the PRA only applies to public records "of a public agency, " and that accordingly "a record must be in the custody or control of the agency to be subject to search or disclosure." The court added that subjecting personal accounts to the PRA would lead to the invasion of the privacy of state employees and officials, and that implementation of such a requirement would raise practical concerns. It acknowledged that allowing state officials and employees to avoid the PRA by communicating through private accounts "is a serious and, frankly, disturbing concern, " but determined that it was up to the Legislature to resolve this problem.

         ¶ 9. On appeal, plaintiff argues that communications related to agency business but stored in private accounts are public records subject to the PRA. He argues that the language of the PRA as well as public policy support this position. He also contends that the PRA places the full burden of proving that a search for responsive records was reasonable on the agency conducting the search, and that placing any burden on the requester to make a threshold showing that public records are stored in private accounts before the agency is required to ask employees if they have public records stored on private accounts would be contrary to the language of the statute and legislative intent.

         ¶ 10. The AGO has shifted its argument on appeal, and no longer contends that records that otherwise fit the definition of public records are not subject to the public records law when they are stored in private accounts. Instead, the AGO maintains that in this case it was not required to take any steps to identify potentially responsive public records found on private accounts of state employees, and that its process for responding to plaintiff's request was sufficient.

         ¶ 11. When reviewing a trial court's grant of summary judgment, we "apply the same standard as the trial court." Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 9, 177 Vt. 287, 865 A.2d 350. Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the ...