Friday, October 20, 2017

Public Business, Private Accounts

The Vermont Supreme Court reversed a decision and concluded that the Office of the Attorney General must conduct a search of employee's private accounts where public business is involved. 

The undisputed facts are as follows. On May 12, 2015, plaintiff Brady Toensing submitted a PRA request to then-Attorney General William Sorrell. Among other things, plaintiff requested responsive records from “January 1, 2012 to present” from eleven employees and officials in the Office of the Attorney General (AGO). In particular, he asked for: “[a]ny and all communications with or documents related to” forty-four individuals and entities and “communications received from or sent to” any email addresses with one of four domain names. Plaintiff’s request stated that “[t]hese requests include, but are not limited to, communications  received or sent on a private email account . . . or private text messaging account.” Plaintiff submitted a revised request on December 11, 2015, that requested records from “January 1, 2011 to present” from nine state employees and officials and asked for “[a]ny and all communications with and documents related to” twenty-seven individuals and three domain names.

The court

We find the reasoning of the California and Washington Supreme Courts persuasive. We conclude that the critical question in this case is whether the AGO conducted a search that was reasonably calculated to uncover all relevant public records. We need not decide whether to formally adopt the burden-shifting advocated by the AGO because we conclude that even with a burden-shifting framework, the AGO’s search for responsive public records must be adequate in the first instance. We decline to adopt a legal presumption that, in the absence of specific evidence provided by the requester, no state business has been conducted through private accounts. Instead, we conclude that in this case the AGO’s search will be adequate if the specified officials and employees are trained to properly distinguish public and nonpublic records, the agency asks them to in good faith provide any responsive public records from their personal accounts, and they respond in a manner that provides reasonable assurance of an adequate search. This might be as simple as an affirmation that the employee, without exception, has not produced or acquired any records in personal accounts in the course of agency business, or that the employee has identified all potentially responsive records through a specified word search, and has segregated and disclosed all records produced or acquired in the course of agency business as opposed to communications of an exclusively personal nature...

Accordingly, if, in addition to searching the AGO’s own records as it has done, the AGO has policies in place to minimize the use of personal accounts to conduct agency business, provides the specified employees and officials adequate guidance or training as to the distinction between public and nonpublic records, asks them to provide to the AGO any responsive public records in their custody or control, receives a response and brief explanation of their manner of searching and segregating public and nonpublic records, and discloses any nonexempt public records provided, its search will be adequate. This approach strikes a balance between protecting the privacy of state workers and ensuring the disclosure of those public records necessary to hold agencies accountable.

In light of the above analysis, we direct the AGO to complete an adequate search in response to plaintiff’s records requests consistent with our analysis, and remand this case to the trial court for completion of the AGO’s response as well as consideration of attorney’s fees.

(Mike Frisch)

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