Gravel & Shea Partner Bob Hemley claimed a win for government transparency last week. Representing a number of media clients, Hemley submitted an Amicus brief in the case of Toensing v. State of Vermont, which the Vermont Supreme Court decided on October 20, 2017.
In a unanimous decision, the Court held that the Attorney General—and in the future, all state agencies—must search the private e-mail servers of their employees when responding to a Public Records Act request. The case arose when, after receiving a request for documents related to allegations of improper campaign finance activities, the Attorney General’s office denied access to private e-mails.
At trial, the Attorney General argued that private e-mails are not subject to search, and the Civil Division of the Chittenden County Superior Court concurred. At oral argument, the Attorney General backed off his original position but maintained that the burden of demonstrating the necessity of a search should fall to the requester. The Supreme Court strongly disagreed.
As Hemley’s Amicus brief argued, the Supreme Court’s decision makes clear that private e-mails used for government business are public records and that state employees are required to produce them in response to a records request. To read the Supreme Court’s full decision, click here. For more on the Attorney General’s response to the decision, click here.