178 A.3d 1000
Vt.2017Background
- Brady Toensing submitted PRA requests to the Vermont Attorney General’s Office seeking communications (2011/2012–present) involving specified AGO employees and third parties, explicitly including records from private email/text accounts.
- The AGO engaged a contractor to search the State’s Microsoft Exchange archive and produced thousands of emails but did not ask employees to search or produce responsive records from their personal accounts.
- Toensing administratively appealed the AGO’s refusal to search private accounts; Deputy AG denied the appeal, asserting the PRA does not reach private accounts or that requester had not justified such a search.
- Toensing sued for declaratory and injunctive relief; the trial court granted summary judgment for the AGO, holding the PRA applies only to agency custody/control records.
- On appeal, the Vermont Supreme Court held the PRA covers records "produced or acquired in the course of public agency business" regardless of being stored in private accounts and remanded, directing the AGO to ask identified employees to provide any responsive public records from personal accounts (with reasonable procedures to protect privacy and exemptions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PRA covers records in employees' private accounts | PRA’s definition of public record (produced/acquired in course of agency business) reaches such records; requester need not first prove records exist in private accounts | Initially: PRA does not extend to private accounts; alternatively, AGO need not search employees’ private accounts absent specific evidence | The PRA covers records produced/acquired in agency business even if in private accounts; location/custody does not exclude them |
| What agency steps are required to search private accounts for responsive records | AGO must ask identified employees to search their personal accounts and provide responsive public records; agency bears burden of showing its search was reasonable | AGO: adopt FOIA-style burden-shifting — requester must present evidence showing particular private accounts were used for agency business before agency must search | Court: Agency must conduct a reasonable search; where requester specifies communications to/from named employees, agency must ask those employees to search personal accounts and produce responsive public records; agency may rely on employee representations and need not require affidavits absent evidence of misuse |
| Privacy and scope limits — does holding force disclosure of private/nonpublic communications? | Toensing sought broad access but limited to public records; disclosure limited by statutory exemptions | AGO warned of privacy intrusion and practical burdens | Court: Holding limited to records that meet statutory definition (produced/acquired in course of agency business); nonpublic personal communications remain protected; agency must protect exempt material and may use employee-led searches to minimize intrusion |
| Standard for adequacy of agency search and proof on review | Requester says sworn employee attestations or disclosure of responsive records suffice to show adequacy | AGO urged presumption that no agency business occurred on private accounts absent specific counter-evidence and adoption of burden-shifting test | Court: No categorical presumption for AGO; reasonable search includes asking specified employees to search personal accounts and provide a description of their search; affidavits not required absent evidence suggesting employees conducted agency business on private accounts |
Key Cases Cited
- City of San Jose v. Superior Court, 2 Cal.5th 608 (Cal. 2017) (personal-account records prepared in course of public business remain public records; agency should first notify employees to search their accounts)
- Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145 (D.C. Cir. 2016) (agency records do not lose status simply because an employee keeps them in a personal account)
- Nissen v. Pierce County, 183 Wash.2d 863 (Wash. 2015) (work-related texts on personal devices can be public records; employee’s good-faith search and affidavit can satisfy agency search obligation)
- Hunton & Williams, LLP v. U.S. Envtl. Prot. Agency, 248 F.Supp.3d 220 (D.D.C. 2017) (federal FOIA practice recognizing employee personal-account searches where facts indicate use for agency business)
- Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 12 F.Supp.3d 100 (D.D.C. 2014) (agency may be required to produce work-related emails in specific employees’ private accounts when requested)