Toensing v. Internet Domains

The Vermont Supreme Court issued a decision last month saying that personal email used for government business is subject to Vermont’s Public Records Act. The case was Brady C. Toensing v. the Attorney General of Vermont. The decision was unanimous.

The case was about a state official (the attorney general), but the decision also applies to local officials, such as selectboard members (me) and all other officials in my town of Cambridge, Vermont, many of whom are volunteers. Does this decision mean that lawyers will be searching our personal email accounts for public records? No.

Paragraph 36 of the decision (at the link above) lays out the court’s expectations (AGO = Attorney General’s Office):

36. 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.

Officials may be asked to search their own personal email accounts in response to a legitimate request under the Public Records Act, but that is all.

Elizabeth Kruska, an attorney in Woodstock, further explains the Vermont Supreme Court’s decision in this excellent article on VTDigger:

SCOV Law Blog: Public records on private emails

The article includes this advice:

And now for the editorial portion: It seems the safest way to prevent this sort of thing from happening is to just not send business emails from a personal account.

I agree! That is good advice. Sometimes, however, especially with local government, an issue arises that I believe has not received sufficient attention.

Email addresses typically use the same Internet domain as the corresponding website. As I noted in an earlier blog post, towns in Vermont use a confusing variety of Internet domains for their websites, including .org, .com and .net. For example, my town’s website is cambridgevt.org and a typical email address for town business is selectboard@cambridgevt.org.

I believe that all government websites in the United States should use the .gov domain. Government is not a charity (.org) or a business (.com) or a network (.net). Government is, well, government – the overarching rulemaker for all parts of public life. And the designers of the Internet thoughtfully provided an appropriate domain (.gov).

I also believe that all government officials should use a .gov email address for all government business. Yes, it is possible to comply with the Toensing decision, and follow Attorney Kruska’s advice, without a .gov email address. But it is so much cleaner and less confusing with a .gov email address.

Citizens should know that whenever they see “.gov” they are dealing with government, whether it is a website or an email. Equally important, they should know that when they see some other domain such as .org or .com, they are NOT dealing with government. Government officials should develop the habit of doing all government business via a .gov email account.

Local governments in Vermont have a long ways to go to standardize on .gov websites and email addresses, but Vermont state government generally sets a good example. A few years ago, most parts of state government standardized on vermont.gov for both websites and email addresses. For example, the website for the Office of the Attorney General is ago.vermont.gov and you can email that office at ago.info@vermont.gov.

What is one of the exceptions to this desirable standard? Alas, the judiciary in Vermont. The “official website of the Vermont Court System” is vermontjudiciary.org.

The photo at the top is the Vermont Supreme Court building in Montpelier (credit).

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One Response to Toensing v. Internet Domains

  1. Lee Paulin says:

    I think we all have to realize that anything said in a social media setting is public domain. If you want to keep it private then you don’t publish it on open channel.

    Like

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