Vt. Supreme Court: Right to Public Records Extends to Private Email Accounts, ‘Crucial’ to Accountability

NEFAC, Media Groups Filed Amicus Brief Arguing for Transparency


CONTACT Justin Silverman | 774.244.2365 | justin@nefac.org

The Vermont Supreme Court ruled today that access to public records on private email accounts is required under the state’s law, calling such access “crucial to holding government actors accountable for their actions.”

The New England First Amendment Coalition praised the decision in Toensing v. Attorney General of Vermont as it prevents a possible loophole in the state’s Access to Public Records Act (“PRA”) and makes it more difficult for officials to act in secrecy.

“This is a major win for transparency,” said Justin Silverman, NEFAC’s executive director. “We have long believed that Vermonters are entitled to public records even if they are in a private email account. These records are the public’s business. They allow us to monitor our government and to hold our officials accountable.”

The case involved a public records request for emails that resided in the private email accounts of several government officials. The officials argued that the Vermont public records law only required them to disclose emails that were on a state server, even if the requested emails pertained to government business. A lower court agreed and ruled that private email accounts were outside the scope of the state’s public records law.

In an amicus brief filed in May, NEFAC and media groups argued that if the lower court’s ruling stood, a loophole would 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.”

The state’s Supreme Court today, however, ruled that the location of a public record should not determine whether the public should have access to that record. According to the court:

“[R]ecords produced or acquired in the course of agency business are public records under the PRA, regardless of whether they are located in private accounts of state employees or officials or on the state system. . . . Exempting private accounts from the PRA would not only put an increasing amount of information beyond the public’s grasp but also encourage government officials to conduct the public’s business in private.”

The ruling is in line with several recent decisions in other states to determine whether a record is public based on the content of the record and not its location. The California Supreme Court ruled in March that public officials can not shield government business by using personal email accounts. The Washington Supreme Court in 2015 unanimously ruled that a public employee’s work-related text messages on a private cellphone are public records. In Delaware last week, the Attorney General decided that emails otherwise accessible under the state’s public records law are public even if they are in a private email account.

“Today’s decision strengthens the public’s right to know and helps prevent secrecy,” Silverman said. “Vermont is now in the good company of other states that have had similar rulings recently. We hope this trend continues.”

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.