NEFAC, Media Groups Argue Against Possible Loophole in Vermont Public Records Act


CONTACT Justin Silverman | 774.244.2365 |

The New England First Amendment Coalition recently joined an amici curiae brief in a case that could determine whether public officials in Vermont can skirt the state’s public records law by communicating through private email accounts.

The Vermont Supreme Court case, Toensing v. Attorney General of Vermont, follows a Feb. 9 ruling that documents otherwise subject to the Public Records Act could be kept secret if they are kept on a private email or text message server.

“Simply put,” argued NEFAC and fellow amici in the May 12 brief, “if a document is produced in the course of agency business, it is a public record, regardless of how it is created, how it is communicated, or where it is stored.”

Attorneys at Cornell Dolan in Boston and Gravel & Shea in Burlington, Vermont, filed the brief on behalf of NEFAC, the Vermont Journalism Trust, the Caledonian-Record Publishing Co., the Vermont Press Association and Da Capo Publishing.

In the brief, amici argued that when determining whether information is a public record, the only appropriate consideration is whether the documents were produced in the course of public agency business.

If the lower court ruling stands, amici wrote, a loophole will be created that “enables public officials to conceal public records simply by communicating on a private email server. This result will cripple journalists’ ability to gather information and hold government accountable.”

NEFAC frequently files and joins amici briefs in cases involving freedom of information and First Amendment rights. Most recently, the coalition argued for the right to record police in a case being heard by the U.S. Court of Appeals for the Second Circuit, the need for anti-SLAPP laws in the First Circuit, and the right to receive booking photos under the federal Freedom of Information Act.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.