The Vermont Supreme Court held that “public records” under the Public Records Act (PRA) include any documents generated in the course of public agency business, even if the record is stored in a private account. The court held that failure to ask an employee to search a private account for public records, per PRA request, requires reversal for an adequate search.

On December 11, 2015, Brady Toensing filed a revised PRA request with the attorney general’s office (AGO) seeking records generated from January 1, 2011 forward. The request named nine employees and their communications with 27 individuals across three domains. The request specifically applied to records in employees’ private accounts, as well as agency accounts.    

The deputy AG denied the request, arguing that PRA does not extend to private accounts, the legislature never intended that the agency search private accounts, and Toensing did not provide sufficient justification to search a private account and violate privacy interests.

On appeal, Toensing moved for a declaration that records related to an individual’s employment with the agency are public records, and PRA requires a good faith search for records located even in private accounts. He moved for reversal of the denial where no good faith search was evident in the denial.

The Vermont Supreme Court agreed that “public records” include “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business,” and they continue to be public records subject to PRA provisions, even if stored in private accounts.

The court rejected the idea that privacy interest exempted private accounts from PRA disclosure. The court concluded that such a holding would incorrectly allow public agencies to hide records by placing them in private accounts.

The court also held that privacy interests were protected by notice given to public employees that public records should not be placed in private accounts because they would be subject to disclosure.

Private interests were also reduced by the conclusion that the agency does not have to review the private account. They can meet the reasonable search burden by showing that the employee is properly trained in segregating public and private records, and then relying on the employee’s own search with reasonable assurance of its adequacy.

The agency may also rely on the employee’s assertion that no agency business was conducted on a private account where policy discourages or prohibits conducting agency business on a personal account. Some evidence to the contrary would have to be presented to find the search was inadequate.

Where Toensing made a specific request to search even private accounts, and there is no evidence that the employees were asked to provide public records or search for such records in their private accounts, the court held that an inadequate search was conducted, so the summary judgment granted to the AGO was reversed and remanded with directions for the AGO to complete an adequate search and reconsideration by the trial court.

See: Toensing v. the Attorney General of Vermont, 2017 VT 99, Vt. A.3d(Vt. 2017). 

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