Brady C. Toensing
The Attorney General of Vermont
Appeal from Superior Court, Chittenden Unit, Civil Division
Robert A. Mello, J.
C. Toensing of diGenova & Toensing, Washington, DC, for
J. Donovan, Jr., Attorney General, and David Boyd, Assistant
Attorney General, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and
Morris, Supr. J. (Ret.), Specially Assigned
1. In this appeal, we address whether plaintiff, a
substantially prevailing self-represented litigant in a case
brought under the Vermont Access to Public Records Act (PRA),
is entitled to attorney's fees because he is an attorney.
The civil division of the superior court denied
plaintiff's request for attorney's fees. On appeal,
plaintiff argues that he is entitled to attorney's fees
based on the plain language of the relevant PRA provision,
the purpose of the Act, and the public policy underlying the
Act. We join the vast majority of jurisdictions construing
similar acts in concluding that the PRA's plain language
and purpose foreclose granting attorney's fees to
substantially prevailing self-represented litigants,
regardless of whether they happen to be attorneys.
Accordingly, we affirm the superior court's decision.
2. The facts are not in dispute. In May 2015, plaintiff
submitted a PRA request to defendant, the Vermont Attorney
General at the time, seeking, among other things, several
years of responsive records from multiple employees and
officials in the Office of the Attorney General (AGO)
regarding communications with, or documents related to,
various individuals and domain names. Plaintiff's request
included communications received or sent on state
employees' private email accounts. The AGO retained an
outside contractor at plaintiff's expense to identify
emails subject to plaintiff's request and produced
records on a rolling basis but ultimately denied the request
with respect to communications sent through its
employees' private emails. Plaintiff filed a PRA action
in superior court, seeking declaratory and injunctive relief.
The superior court granted the AGO's motion for summary
judgment, and plaintiff appealed.
3. On appeal, we reversed the superior court's summary
judgment ruling and remanded the matter for further
proceedings. We held "that the PRA's definition of
'public record' includes digital documents stored in
private accounts but . . . only [those] documents that
otherwise meet the definition of public records."
Toensing v. Attorney General, 2017 VT 99, ¶ 1,
206 Vt. 1, 178 A.3d 1000. Recognizing the need to strike a
balance between protecting state workers' privacy and
making state agencies accountable for their actions, we
determined that an adequate search would require the AGO to
have in place policies: (1) minimizing the use of personal
accounts to conduct agency business; (2) training employees
to distinguish between private and public records; (3)
requiring employees to provide public records within their
control and to explain how those records were segregated from
nonpublic records; and (4) providing for the disclosure of
requested nonexempt public records submitted by state
employees from private email accounts. Id. ¶
36. Accordingly, we required the AGO in this case "to
ask specified state employees to provide public records from
their personal accounts in response to plaintiff's public
records request." Id. ¶ 1.
4. On remand, plaintiff filed a motion for costs and
attorney's fees pursuant to 1 V.S.A. § 319(d)(1),
which provides that "the court shall assess against the
public agency reasonable attorney's fees and other
litigation costs reasonably incurred in any case under this
section in which the complainant has substantially
prevailed." Defendant opposed the motion, arguing that
self-represented litigants may not recover attorney's
fees under the plain language of the statute, that neither
party substantially prevailed in the litigation, and that
plaintiff may not recover the costs that he seeks.
5. The superior court granted plaintiff's motion in part
and denied it in part. The court concluded that plaintiff had
substantially prevailed in the litigation and thus was
entitled to costs other than computer-assisted research
costs, which the court considered to be a component of
attorney's fees. However, upon examining the language of
§ 319(d), analogous federal Freedom of Information Act
(FOIA) cases, and the U.S. Supreme Court case relied on in
those cases, the superior court concluded that substantially
prevailing self-represented plaintiffs may not recover
attorney's fees under the PRA, even if they happen to be
attorneys. Accordingly, the court denied plaintiff's
request for attorney's fees. The court also ruled that
plaintiff is not entitled to recover attorney's fees for
work performed by his law firm colleagues at his direction
because there was no independent attorney-client
6. On appeal, plaintiff argues that the superior court erred
in ruling that § 319(d)(1) does not allow the assessment
of attorney's fees to a self-represented licensed
attorney who substantially prevailed in a PRA action.
Defendant supports the superior court's decision with
respect to attorney's fees and does not challenge the
court's conclusions that plaintiff, as the substantially
prevailing party, is entitled to costs other than
computer-assisted research costs.
7. The issue in this appeal, which concerns statutory
interpretation, is a pure question of law that we review
without deference to the superior court's decision.
In re D.C., 2016 VT 72, ¶ 6, 202 Vt. 340, 149
A.3d 466 ("Questions of statutory interpretation are
pure questions of law that we review de novo."
(quotation and alteration omitted)). Our paramount task in
construing statutes "is to ascertain and implement the
legislative intent." McClellan v. Haddock, 2017
VT 13, ¶ 13, 204 Vt. 252, 166 A.3d 579. In determining
that intent, we first look to the plain language of the
statute. Id. If the legislative intent is clear from
that language, we enforce the statute according to its terms;
however, if the language is ambiguous, we may infer intent
from the statute's subject matter, purpose, effects, and
consequences. Id.; see Herald Ass'n, Inc. v.
Dean, 174 Vt. 350, 354, 816 A.2d 469, 474 (2002)
("Where the Legislature's intent can be ascertained
from the plain meaning of the statute, we interpret the
statute according to the words the Legislature used.").
"The Legislature is presumed to have intended the plain,
ordinary meaning of the adopted statutory language."
Springfield Terminal Ry. v. Agency of Transp., 174
Vt. 341, 346, 816 A.2d 448, 453 (2002). Accordingly,
"[w]ords not defined within a statute are given their
plain and ordinary meaning, which may be obtained by
consulting dictionary definitions." Brisson Stone,
LLC v. Town of Monkton, 2016 VT 15, ¶ 19, 201 Vt.
286, 143 A.3d 550; accord Pease v. Windsor Dev. Review
Bd., 2011 VT 103, ¶ 18, 190 Vt. 639, 35 A.3d 1019
(mem.) (construing term in PRA).
8. In its entirety, § 319(d) provides as follows:
(1) Except as provided in subdivision (2) of this subsection,
the court shall assess against the public agency reasonable
attorney's fees and other litigation costs reasonably
incurred in any case under this section in ...