Vt. May Appeal Records Ruling

Saturday, July 07, 2018

The Vermont Attorney General’s Office may appeal the past week’s order by a judge who said the state must pay about $66,000 to cover legal expenses of groups that sought and were first denied access to documents under Vermont’s public records law.

Chief Assistant Attorney General William Griffin said in an interview he disagreed with the ruling issued by Judge Mary Miles Teachout in Washington Superior Court on the question of which side had “substantially prevailed.”

That phrase is key, because under a Vermont law passed in 2011, people requesting public records who see the request denied by a public agency but later win, or mostly win, a follow-up court case are entitled to recover their legal expenses from that agency.

“We haven’t made a decision, but (an appeal to the Vermont Supreme Court) is under consideration,” Griffin said.

The case stemmed from a long-running dispute over access to public records that began when two groups representing industry interests in matters of government environmental regulation sought information from several attorneys general about an investigation of oil giant Exxon Mobil by several state attorneys general.

The Vermont attorney general’s office denied requests from lawyer Brady Toensing for the Energy & Environment Legal Institute and the Free Market Environmental Law Clinic, and four court cases followed. In one, Judge Robert Mello of the Chittenden Superior Court ruled that Toensing could not collect legal fees because he was representing himself; Toensing has appealed that ruling to the Vermont Supreme Court. The three Washington County cases involved Toensing’s representation of the two industry-friendly groups.

Griffin on Thursday said he believed the state had substantially prevailed in the Washington County cases — erasing any justification for paying its opponents’ legal fees. And he cited a previous Washington Superior Court case on a public records request by WCAX in which Judge Helen Toor denied the television station’s request for legal fees. “Each side succeeded on a portion of the case,” the judge wrote. “Neither ‘substantially prevailed.’ ”

Griffin said Toensing had asked to take sworn statements, or depositions, from three members of the attorney general’s office — the process is known in the legal world as taking depositions. The court denied that request, Griffin said.

The state also prevailed in the disclosure of records, Griffin said. Of the 193 documents sought and initially blocked from release, Toensing and his clients received just four.

The judge allowed the state to deny 98 percent of the documents requested.

Toensing disputed this interpretation, saying the judge reviewed the disputed documents in her chambers and ordered the state to hand over the documents most responsive to the plaintiffs’ requests.