VERMONT SUPERIOR COURT

 

 

 

CHITTENDEN UNIT
CIVIL DIVISION
BRADY C. TOENSING,
Plaintiff
v. Docket NO. 500?6?16 
THE ATTORNEY GENERAL OF 
VERMONT,
Defendant E3 9 8 2017

as: in autumn: mgr?

RULING ON DEFENDANT ?8 MOTION FOR SUMMARY JUDGMENT

This action for declaratory and injunctive relief arises from a public records
request. Plaintiff Brady C. Toensing seeks copies of communications between certain
state of?cials and employees and other individuals from the Office of the Attorney
General (Defendant). While Defendant produced records kept on the state computer
system, it did not search for or produce any responsive documents kept on private email
and text messaging accounts. Now before the court is Defendant?s motion for summary
judgment. Brady C. Toensing, Esq. represents himself. William E. Griffin, Esq.
represents Defendant.

The following facts are undisputed. On December 11, 2015, Toensing submitted a
public records request to the Attorney General?s Of?ce (AGO) seeking any
communications over a four-year period starting January 1, 2011, between nine listed
AGO of?cials and employees and 30 other individuals and organizations. The 
search identi?ed 13,629 emails that were subsequently consolidated into 1,129 email
chains. After the search was completed, the AGO reviewed the records and undertook a
rolling production of documents to Toensing. The AGO completed its response and
production of documents in April 2016, identifying documents it was withholding and
the grounds for doing so. In total, Defendant spent more than 250 hours of staff time
reviewing the documents and responding to the request. On April 28, 2016, Defendant
sent a ?nal consolidated response to Toensing?s request.

Toensing then ?led an administrative appeal with the Deputy Attorney General
on the grounds that the private email accounts and private text messaging accounts of
the nine listed AGO employees should have been searched for records responsive to his
request. That appeal was denied on June 17, 2016. Toensing contends that the Attorney
General?s Of?ce was obligated to search the private emails and text messages of AGO
staff and to produce documents that respond to his search request?that is, any

 

communications these state employees may have had on their personal accounts with
the identi?ed individuals and organizations.1

The threshold issue in this case is purely a question of law: whether the Public
Records Act requires an agency to search its employees? email and text message
communications on private accounts or devices, or to have its employees search those
accounts or devices, in response to a records request. This question, apparently one of
?rst impression in Vermont, primarily involves a matter of statutory interpretation. In
interpreting a statute, Vermont courts are guided by the following general rules of
statutory construction:

When interpreting statutes, the bedrock rule of statutory
construction is to determine and give effect to the intent of
the Legislature. We effectuate this intent by ?rst examining
the plain meaning of the language used in light of the
statute?s legislative purpose. If that plain language resolves
the con?ict without doing violence to the legislative scheme,
there is no need to go further. But if the literal meaning of
the words is inconsistent with legislative intent, the intent
must prevail. Such inconsistency occurs if applying the
precise wording of a statute produces results which are
manifestly unjust, absurd, unreasonable or unintended, or
con?icts with other expressions of legislative intent. The
legislative intent is most truly derived from a consideration
of not only the particular statutory language, but from the
entire enactment, its reason, purpose and consequences.
Finally, where there are similar statutes in other
jurisdictions, we are also guided by the interpretations of
those statutes.

Delta Psi Fraternity v. City of Burlington, 2008 VT 129, 7, 185 Vt. 129 (alterations in

original) (quotations and citations omitted); see also In re Carroll, 2007 VT 19, 1i 9, 181
Vt. 383 (noting that Vermont courts determine legislative intent by considering ?the
whole statute, the subject matter, its effects and consequences, and the reason and spirit
of the law?).

The Public Records Act provides that ?[a]ny person may inspect or copy any

public record of a public agency . . . 1 V.S.A. 316(a). ?Public agency? or ?agency?
means ?any agency, board, department, commission, committee, branch,
instrumentality, or authority of the State . . . 1 V.S.A. 317(a)(2). ?[P]ublic record? or

?public document? is de?ned as ?any written or recorded information, regardless of
physical form or characteristics, which is produced or acquired in the course of public
agency business.? 1 V.S.A. 317(b). The Act?s statement of policy advocates for ?free and
open examination of records? despite the potential for ?inconvenience or

 

1 Toensing purports to dispute a number of Defendant?s undisPuted facts, but does not comply with Rule
56(c). Thus, those facts are deemed admitted.

 

embarrassment,? but also recognizes that ?[a]ll people . . . have a right to privacy in their
personal and economic pursuits, which ought to be protected unless speci?c
information is needed to review the action of a governmental of?cer.? 1 V.S.A. 315.

While the Act?s de?nition of ?public record? is undoubtedly broad?indeed, even
?sweeping,? see Herald Ass?n, Inc. v. Dean, 174 Vt. 350, 353 (2oo2)?its scope does not
extend so far as to mandate the search of state of?cials? or employees? private email or
text messaging accounts upon request. The Act permits one to inspect or copy ?any
public record of a public agency.? 1 V.S.A. 316(a) (emphasis added). ?Public agency? is
defined in terms of institutions, rather than individuals, which patently implies that a
record must be in the custody or control of the agency to be subject to search or
disclosure. 1 V.S.A. 317(a)(2). Language in other sections of the Act compels the same
result. See, 1 V.S.A. 316(g) public agency having the equipment necessary to
copy its public records . . (emphasis added); 316(i) an agency maintains
public records in an electronic format . . (emphasis added).

Perhaps more importantly, such an interpretation raises serious privacy concerns
that implicate the First and 14th Amendments as well as Article 11. For example, as
Defendant observes, the personal email accounts of elected officials in particular are
likely to contain communications related to political campaigns and elections. A search
of those emails would undermine the First Amendment?s traditionally stringent
protection of political speech. See, Citizens United v. Fed. Election Comm?n, 558
U.S. 310, 339?40 (2010); Bucklev v. Valeo, 424 U.S. 1, 14 (1976). The stated legislative
purpose of the Public Records Act plainly contemplates a balancing between ?free and
open examination of records? and the privacy rights of state of?cials and employees.
1V.S.A. 315. There is surely a privacy interest in one?s personal communications
conducted on private accounts. See Competitive Enter. Inst. v. United States Envtl. Prot.
Agency, 12 F. Supp. 3d 100, 123 (D.D.C. 2014) Court does not see why an agency
of?cial?s personal email address?in which he or she would obviously have a powerful
privacy interest?would become any less private [because] of the fact that it was used
when it should not have been?). Under Toensing?s logic, the private communications
accounts of any and all public of?cials and employees would be subject to search upon
request. Given the language of the statute and the stated purpose, that cannot be a result
the legislature intended or even contemplated.

Aside from the constitutional privacy considerations, implementation of such a
search and disclosure would be problematic at best, and the Act contains no provision
addressing those practical concerns. As Defendant points out, it is unclear how the State
could simply force its of?cials and employees to search their own private email or text
messaging accounts, or turn over access to such accounts to a third party. Such a search
would also likely be burdensome and subject to disparate methods of implementation,
depending on the various types of email and messaging systems involved and who
would conduct the search. Had the legislature intended the scope of the Public Records
Act to include that type of search, it would have provided additional procedures to deal
with these concerns.

 

Other authorities, which this court ?nds persuasive, further support this
conclusion. In one case cited by Defendant, a California appellate court held that
writings of city of?cials sent or received on their private devices and accounts and which
undisputedly related to city business were not ?public records? under the California
Public Records Act. City of San Jose v. Superior Court, 225 Cal. App. 4th 75, 89, 91
(2014).2 That conclusion relied heavily on the fact that, like Vermont?s Act, the
California Act de?ned ?agency? in terms of ?government bodies themselves,? and does
not mention ?individual members or representatives of any public body . . . Id. The
court also rejected the requester?s contention that the city had control over its
employees ?by virtue of the parties? relationship.? E. at 91. While the court openly
recognized the ?serious concern? presented by the fact that city council members could
?conceal their communications on public issues by sending and receiving them on their
private devices from private accounts,? it stated that ?such conduct is for our lawmakers
to deter with appropriate legislation.? E. at 90. 1

As Toensing observes, the language of the California Act at issue in San Jose is
not identical to the Vermont Act. The California Act provides that ?every person has a
right to inspect any public record,? and de?nes ?public record? to include ?any writing
relating to the public?s business if it is ?prepared, owned, used, or retained by any state
or local agency.?? Id. at 86?87 (citing Cal. Gov?t Code 6252(e), 6253(a)). Toensing
thus argues that the California Act is narrower, as the Vermont Act de?nes ?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.? 1
V.S.A. 317(b). But this contention fails to consider that the Vermont Act is also
narrower in that it provides a right to access ?any public record of a public agency,?
1 V.S.A. 316(a) (emphasis added), while the California Act refers only to ?any public
record . . . Cal. Gov?t Code 6253(a). Both statutes permit access only to records of
public agencies; that requirement is simply phrased differently in the respective
statutes.

Another case, relied upon in San Jose, is similarly persuasive. See In re
Silberstein, 11 A.3d 629, 632?33 (Pa. Commw. Ct. 2011). In Silberstein, someone
requested electronic communications between citizens and commissioners serving on
the township board. The township, as in the present case, produced writings in its
possession and control, but did not consider those writings made on computers
maintained solely by a commissioner. The requester argued that elected of?cials should
not be permitted to shield public records related to township activity by using a third-
party email address on a personal computer, and that public officials are ?agency actors
. . . subject to . . . [t]ownship control.? m. at 632. -

 

2 The court observes that the San Jose decision has been pending appeal for over two years since the
California Supreme Court granted review in 2014. See Gig of San Jose v. Superior Court, 326 P.3d 976
(Cal. 2014). The current or potential legal status of an out?of?state decision does not prohibit this court
from citing it as persuasive authority nor, in this context, does it diminish its persuasive value. Indeed,
courts may even rely on dissents as persuasive precedent. See, Kerrigan v. Comm?r of Pub. Health,
289 Conn. 135, 246 (2008) (?Although the decision of the California Supreme Court and the dissenting
opinion of Chief Judge Kaye [in a New York Court of Appeals decision] re?ect the minority position, we
believe that they nevertheless represent the most persuasive sister state precedent?).

 

The appellate court af?rmed the trial court?s ruling that those communications
were not ?public records? under ?Right-to?Know Law.? 1d. at 633. The
law provides that commonwealth and local agencies ?shall provide public
records in accordance with this act.? 65 Pa. Stat. 67.301, 67.302. The law further
de?nes ?record? as ?[i]nformation, regardless of physical form or characteristics, that
documents a transaction or activity of an agency and that is created, received or retained
pursuant to law or in connection with a transaction, business or activity of the agency,?
and de?nes ?public record? as record . . . of a Commonwealth or local agency? that
is not exempt or privileged. 65 Pa. Stat. 67.102. The court reasoned:

distinction must be made between transactions or
activities of an agency which may be a ?public record? under
the [Right?to?Know Law] and the emails or documents of an
individual public office holder. As pointed out by the trial
court, Commissioner Silberstein is not a governmental
entity. He is an individual public of?cial with no authority to
act alone on behalf of the Township.

Consequently, emails and documents found on
Commissioner Silberstein?s personal computer would not fall
within the de?nition of record as any record personally and
individually created by Commissioner Silberstein would not
be a documentation of a transaction or activity of York
Township, as the local agency, nor would the record have
been created, received or retained pursuant to law or in
connection with a transaction, business or activity of York
Township. In other words, unless the emails and other
documents in Commissioner Silberstein?s possession were
produced with the authority of York Township, as a local
agency, or were later rati?ed, adopted or con?rmed by York
Township, said requested records cannot be deemed ?public
records? within the meaning of the [Right?to?-Know Law]as
the same are not ?of the local agency?.

Silberstein, 11 A.3d at 633 (emphasis in original). In Silberstein, as in San Jose, the fact
that the statute permitted disclosure only of public records ?of? the agency was crucial.3
Similarly, here, the private emails and text messages of of?cials and employees of the

 

3 The court observes that Rightuto?Know Law further provides that records ?in the
possession of? an agency are presumed to be public records, and that a request for access requires an
agency to make a good faith effort to determine if the record requested is a public record ?and whether the
agency has possession, custody or control of the identi?ed record . . . 65 Pa. Stat. 67.901.
While the Silberstein court observed that these provisions represent ?safeguards to protect against the
possibility that an agency may attempt to shield public records from disclosure by simply storing the
records on a computer that is not in the physical possession of the agency,? that does not diminish the
persuasive value of that decision to this case.

 

Attorney General?s Of?ce are not public records ?of a public agency.? Consequently, they
are not subject to disclosure under Vermont?s Public Records Act.

Toensing cites a number of cases where courts have held or suggested that
communications in private email and text messaging accounts are records subject to
disclosure under the governing public records acts. This court does not find those cases
persuasive. In City of Champaign v. Madigan, 992 629, 639 (Ill. App. Ct. 2013),
an Illinois appellate court held that city council members? communications from
personally owned electronic devices made during city council meetings were subject to
disclosure under that state?s FOIA. However, that court also stated that communications
from an individual city council member?s personal electronic devices ?do not qualify as
?public records?? unless they pertained to public business and were effectively controlled,
in some manner, by the ?public body.? E. at 639. ?Thus, if the communication, which
pertains to the transaction of public business, was sent or received during the time a city
council meeting was in session, during the time the individual city council members
were functioning collectively as the ?public body,? then the communication is a ?public
record? and thus subject to at 639?40. Madigan does not present an
analogous framework to be of guidance.

McLeod v. Parnell, 286 P.3d 509 (Alaska 2012) involved former Alaska Governor
Sarah Palin?s use of personal email accounts to conduct state business. However, the
actual issue decided by the Alaska Supreme Court was whether ?public records? under
that state?s Public Records Act included those records which are ?appropriate for
preservation? under the state?s Records Management Act. It appears Alaska?s statutory
scheme in this area is unique and suf?ciently distinguishable from Vermont to be of no
useful guidance here.

In Bradford v. Dir., Employment Sec. Dep?t, 83 Ark. App. 332 (2003), a former

state of?cial sought unemployment bene?ts after he resigned from his position,
claiming he had good cause to leave because then-Arkansas Governor Mike Huckabee?s
staff asked him to violate the state?s FOIA by communicating with the governor at his
private email address rather than his of?cial one. In concluding that the claimant left
work voluntarily without work-related good cause, the court found ?nothing in the
that specifies that the communication media by which the public?s business is
conducted are limited to publicly owned communications.? I_d. at 345. The court also
noted that emails between the governor and others that involved the public?s business
were subject to public access ?whether transmitted to private email addresses through
private internet providers or whether sent to of?cial government email addresses over
means under the control of the State?s Division of Information Services.? at 345. As
no analysis was provided for this proposition, this court deems it unpersuasive.

Another decision cited by Toensing resulted from an action by the Competitive
Enterprise Institute challenging the sufficiency of the response to a FOIA request
for information related to former EPA administrator Lisa aekson?s use of a secondary
email account to conduct government business. Competitive Enter. Inst. v. United
States Envtl. Prot. Agency, 12 F. Supp. 3d 100 (D.D.C. 2014). It unclear how that
decision helps Toensing?s cause in any way. The ?secondary? email account at issue

 

there was not a personal email account, but an account which the EPA administered and
which used an ?epa.gov? domain. I_d. at 107. Therefore, it has no relevance to the present
case. In upholding the redaction of personal email addresses from certain documents,
the court there suggested that requesters would not be impeded by the redaction ?since
they can simply ask for work-related emails and agency records found in the speci?c
employees? personal accounts; requesters need not spell out the email addresses
themselves.? 1d. at 122. As Defendant correctly observes, however, this statement is
dicta and offers no useful analysis.

A more recent decision involved a FOIA action brought against a federal agency
for refusal to search a private email account maintained by its director at a
nongovernmental organization. Competitive Enter. Inst. v. Of?ce of Sci. 8: Tech. Policy,
827 F.3d 145 (DC. Cir. 2016). The DC. Circuit found that to be an improper
withholding of alleged agency records, noting that the agency head controls what
would otherwise be an agency record, then it is still an agency record and still must be
searched or produced.? 1d. at 149. The court also observed that the government?s
argument was ?inconsistent with the purpose of Lil. at 150. (?If a department
head can deprive the citizens of their right to know what his department is up to by the
simple expedient of maintaining his departmental emails on an account in another
domain, that purpose is hardly served. It would make as much sense to say that the
department head could deprive requesters of hard-copy documents by leaving them in a
?le at his daughter?s house and then claiming that they are under her 
However, the DC. Circuit offered no analysis of any statutory language in explaining its
decision. Furthermore, as Defendant observes, that case involved an organizational
email account rather than a personal email account, so the same personal privacy
concerns at issue here were not implicated.

Finally, Landmark Legal Found. v. E.P.A., 959 F. Supp. 2d 175 (D.D.C. 2013) is
similarly unhelpful. There, the plaintiff sought records regarding proposed rules and
regulations, including those contained on personal email accounts. However, the EPA
failed to dispute allegations that personal accounts were being used to conduct official
business, and apparently presented no argument that FOIA does not extend to searches
of personal email. See id. at 182?83. Consequently, there was no legal analysis of that
issue. Like the other cases cited by Toensing, Landmark offers no helpful guidance to
the present case.

To be sure, the idea that state of?cials and employees can avoid valid public
records requests merely by conducting of?cial work-related communications on private
email and text messaging accounts is a serious and, frankly, disturbing concern.
Through its decision today, the court does not seek to diminish that concern, but only to
point out that it ?is a matter for the Legislature, not the courts, to decide.? San Jose, 225
Cal. App. 4th at 96; see also id. at 97 (?The obstacles noted by petitioners?the legal and
practical impediments attendant to the extra task of policing private devices and
accounts?would also be addressed more appropriately by the Legislature or the agency,
not the courts?); Madigan, 992 at 640 (?If the General Assembly intends for
communications pertaining to city business to and from an individual city council
member?s personal electronic device to be subject to FOIA in every case, it should

 

expressly so state. It is not this court's function to legislate. Indeed, such issues are
legislative matters best left to resolution by the General 

The court concludes that the communications on private email and text
messaging accounts requested by Toensing are not subject to search or disclosure under
the Public Records Act. Because of its resolution of this issue, the court need not address
the other issues raised by the parties.

Quiet
Defendant?s Motion for Summary Judgment is granted.

SO ORDERED.

Dated at Burlington this 8th day of February, 2017.

     

Robert A. Mello
Superior Court Judge

 

 

4 Toensing?s allegation that the Attorney General?s Of?ce selectively responds to public records requests
for private email communications is also concerning. Certainly, the Public Records Act itself does not
strictly preclude state agencies from searching or disclosing employees? or officials? emails located on
private accounts in response to a records request. If it does so, an agency or other government entity
should be consistent in its approach. In any event, this does not inform the court?s analysis of whether the
Public Records Act mandates a search or disclosure of such communications.

 

VERMONT SUPERIOR COURT

 

 

 

UNIT
CIVIL DIVISION

BRADY C. TOENSING,

Plaintiff

v. Docket No. 500-616 
THE ATTORNEY GENERAL OF
VERMONT,

Defendant

FINAL JUDGMENT

The court having granted Defendant?s Motion for Summary Judgment, judgment
is hereby entered for The Attorney General of Vermont.
SO ORDERED.

Dated at Burlington this 8th day Of February, 2017.


n. f?

R?6bert A. MellO
Superior Court Judge