U.S. Right to Know v. Univ. of Vt., 20-110

Docket NºNo. 20-110
Citation255 A.3d 719
Case DateMay 14, 2021
CourtUnited States State Supreme Court of Vermont

255 A.3d 719


No. 20-110

Supreme Court of Vermont.

September Term, 2020
May 14, 2021

Stephen F. Coteus and Ronald A. Shems of Tarrant, Gillies, Richardson & Shems, Montpelier, for Plaintiff-Appellant.

Sharon Reich Paulsen, Vice President and General Counsel, and Meghan E. Siket, Associate General Counsel, Office of General Counsel University of Vermont, Burlington, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.


255 A.3d 720

¶ 1. In this Public Records Act (PRA) case we are asked to determine whether emails on a university's server sent between a professor and third-party entities, and concerning the work of those entities, qualify as "public records" subject to public inspection. U.S. Right to Know (USRTK) appeals from the superior court's grant of summary judgment in favor of the University of Vermont (UVM) after the court held that the emails USRTK requested from UVM are not public records. We agree that the emails at issue are not public records and accordingly affirm.

¶ 2. The following facts are uncontested. Professor Naomi Fukagawa is a retired professor of UVM's Larner College of Medicine who has served as an editor of two peer-reviewed academic journals—Nutrition Reviews and the American Journal of Clinical Nutrition. Dr. Fukagawa has also served on two advisory committees associated with the U.S. government and the University of Illinois at Urbana-Champaign. Although the journals and committees are not affiliated with UVM, before and after her retirement, Dr. Fukagawa used her UVM email account to correspond with individuals affiliated with the journals and committees.

¶ 3. In March 2018, USRTK, a nonprofit public-health research organization, made a PRA request to UVM, seeking emails on UVM's server between Professor Fukagawa and named persons associated with the journals and committees during a specified timeframe. UVM's search returned 10,140 potentially responsive emails. The parties agree that the emails are "almost exclusively related" to Dr. Fukagawa's editorial roles on the journals and her work on the committees. USRTK is clear that it is seeking Professor Fukagawa's emails related to her work on the journals and committees, not other emails caught in the requested search parameters.

¶ 4. In March 2019, UVM responded to the records request, asserting that the emails are not "public records" subject to disclosure under the PRA because the journals and committees are not affiliated with UVM and Professor Fukagawa corresponded with these entities in her personal capacity. Following an unsuccessful appeal to UVM's president and an ineffective amended request expanding the timeframe of requested emails, USRTK filed suit in the superior court to compel disclosure.

¶ 5. The superior court granted UVM's motion for summary judgment, ruling that the emails are not public records because they were not "produced or acquired in the course of public agency business." See 1 V.S.A. § 317(b) (defining "public record"). The court observed that the purpose of the PRA is to ensure that the public can review and criticize government—not private—action. Finding that the emails played no role in the University's business, the court concluded that there was no government role at issue in need of public inspection.

255 A.3d 721

¶ 6. On appeal, USRTK first argues that UVM bears the burden of proof to support its action of withholding the emails, a burden USRTK claims has not been met. USRTK then advances several premises in support of its argument that the emails are public records. First, it observes that the emails were sent using the University's email system. Second, it argues that the professor was acting within the scope of her employment, which it equates with "in the course of public agency business," because (a) UVM's email policy requires employees to use their UVM email account exclusively for UVM business, except for "occasional and incidental non-University matters," and (b) UVM benefits from, encourages, expects, promotes—and spends public funds promoting—the professor's work on such journals and committees.

¶ 7. This Court reviews a decision granting summary judgment without deference and applies the same standard as the superior court. Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 9, 177 Vt. 287, 865 A.2d 350. A grant of summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a).

¶ 8. The PRA seeks to provide the people a means of examining public records so they may review and criticize the actions of their government. See 1 V.S.A. § 315(a). To that end, the Act provides that "[a]ny person may inspect or copy any public record of a public agency." Id. § 316(a). "Public record" is defined as "any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business." Id. § 317(b). Certain public records are nevertheless exempted from public inspection for a host of reasons, such as confidentiality and privilege. See id. § 317(c). A person aggrieved by the denial of a request for public records may pursue relief in court, where the agency bears the burden of proof to sustain its action. Id. § 319(a).

¶ 9. As an initial matter, there is nothing for us to add here regarding the burden of proof. See Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 107, 624 A.2d 857, 861 (1993) ("In a dispute over access in the trial court, the burden is on the agency to sustain its action." (citing 1 V.S.A. § 319(a) )). The facts of this case are not disputed. The parties filed a joint statement of undisputed facts where they agree that the emails are "almost exclusively related" to Dr. Fukagawa's editorial roles on the journals and her work on the committees. The statement is also clear that USRTK is seeking Professor Fukagawa's emails related to her work on the journals and committees, not, for example, emails to these entities related to her work at UVM, which would present us with an altogether different case. Moreover, the parties do not dispute that UVM qualifies as a public agency under the PRA. See Animal Legal Def. Fund, Inc. v. Institutional Animal Care & Use Comm. of Univ. of Vt., 159 Vt. 133, 140, 616 A.2d 224, 227 (1992) (holding that UVM is subject to PRA). Accordingly, the only issue before us is whether, as a matter of law, the emails related to Dr. Fukagawa's work on the journals and committees are public records under the PRA.

¶ 10. We hold that the emails are not public records because they were not produced or acquired in the course of public agency business. We reach this conclusion based on the language and purpose of the PRA, our case law on the subject, cases from other state courts interpreting their open-records laws, and the federal courts’ interpretations of the Freedom of Information Act (FOIA).

255 A.3d 722

¶ 11. Whether the emails are public records is a question of statutory interpretation, an analysis in which we seek to effectuate the intent of the Legislature. Toensing v. Attorney General of Vermont, 2017 VT 99, ¶ 14, 206 Vt. 1, 178 A.3d 1000. We begin with the language of the statute, for we presume that the Legislature "intended the plain, ordinary meaning of the adopted statutory language." Id. (quotation omitted). We also construe the PRA liberally in favor of disclosure, mindful of its strong policy favoring access to public records. Norman v. Vt. Office of Court Adm'r, 2004 VT 13, ¶ 4, 176 Vt. 593, 844 A.2d 769 (mem.); 1 V.S.A. § 315(a). The "determinative factor" in the definition of "public record" is "whether the document at issue is ‘produced or acquired in the course of [public] agency business.’ " Herald Ass'n v. Dean, 174 Vt. 350, 354, 816 A.2d 469, 473 (2002) (quoting 1 V.S.A. § 317(b) ). We have examined this language before.

¶ 12. In Herald Association, newspaper publishers requested Governor Howard Dean's daily schedule, which contained public and private information. 174 Vt. 350, 816 A.2d 469. We rejected the Governor's argument that any portion of a public record containing information not directly related to the Governor's duties or official acts is not covered by the PRA. Id. at 354-55, 816 A.2d at 473-74. Instead, we focused on the language of the Act in determining that the records must be produced or acquired in the course of public agency business to qualify as public records. Id. at 354, 816 A.2d at 473. We held that the Governor's schedule was a public record because it was "an integral and essential part of the daily functioning of the Governor's office," as it was "necessary to facilitate the execution of the Governor's various duties and to communicate with staff and the Governor's security personnel." Id. Central to our decision were the circumstances surrounding the record's creation and the role the record played in the day-to-day functioning of the Governor's office. Id.

¶ 13. We also discussed the definition of "public record" in Toensing, where we had to determine whether public records stored in agency employees’ private email and text-messaging accounts were subject to disclosure...

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