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Vermont public officials can't hide public documents on private email servers, Vermont Supreme Court rules after Cornell Dolan amici briefing

· First Amendment,Appeal,Vermont,Litigation

A few years, a Vermont resident named Brady Toensing filed a public records request with the state Attorney General's office, trying to figure out who was lobbying the Attorney General.

The AG answered that there were no documents. Well, Toensing asked, did you search their private email addresses? No, the AG responded, and we're not going to.

Toensing took the AG to court and, in a startling decision, the judge said the AG was right - there was no need to search public officials' private email.

The ramifications of that decision could be devastating. Public officials could hide any embarrassing documents simply by using private email accounts.

VtDigger, a leading Vermont news site, immediately saw the threat and agreed with Cornell Dolan's Timothy Cornell that an amici brief should be filed with the court, spelling out why the decision violated the Vermont Constitution. The Caledonian Record, Seven Days, the Vermont Press Association, and the New England First Amendment Coalition quickly joined as well.

With Robert Hemley of Gravel Shea PC as local counsel, Timothy Cornell delivered an amicus brief to the court that delved into the history of the Public Records Law in Vermont, and showed why a public document is a public document, regardless of where it is found.

If a board of selectmen meet in a private house, that would still be considered a public meeting, the brief argued. So why should an email be treated differently? After all, the public official who wants to protect their private email can avoid this simply by making sure all public business is done on their public email.

In a landmark decision on Friday, the Vermont Supreme Court agreed that public officials must produce documents that can be considered public records, if they are on their private emails. The opinion is located here.

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