Brady C. 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 ...