Brady Toensing argues a public records case before the Vermont Supreme Court in October 2018. Photo by Mike Dougherty/VTDigger
The Vermont Supreme Court says a lawyer can’t collect attorney fees since he represented himself in a public record case in which he largely prevailed against the Vermont Attorney General’s office.
At issue is what Charlotte attorney Brady Toensing says is well over $100,000 in lawyer fees racked up during long-running legal battle relating to former Attorney General William Sorrell conducting state business with lobbyists and others using his private email account.
Toensing prevailed in that lawsuit, with the state’s highest court reversing a lower court ruling that private email accounts are protected from public release. The justices in that case determined that exempting private accounts from the public records law would “encourage government officials to conduct the public’s business in private.”
Following that decision, Toensing, who represented himself in the case, sought to collect his attorney fees in waging that legal fight. The Vermont Supreme Court, in a ruling issued Friday, denied Toensing’s bid to have the Vermont Attorney General’s office pay those fees.
Toensing had contended he was due the fees based on the legislative history of Vermont’s Public Records Act and public policy reasons allowing a prevailing party to collect the money it spent in bringing the case. He said one of the reasons for awarding attorneys fees in such cases was to punish state agencies for improperly denying records.
“We do not find any of these arguments persuasive,” Justice Karen Carroll wrote in the high court’s unanimous decision.
Toensing, who is also the vice chair of Vermont’s Republican Party, said Friday that he hoped the decision does not keep others from pursuing matters of public interest.
“It may be something at which the Legislature wants to look and consider clarifying the law to explicitly allow such fees,” he said.
“My fees in this and the underlying case well exceeded $100,000,” Toensing added. “These cases are complicated and costly, and the state routinely utilizes attrition warfare to dissuade people from suing to uncover politically-embarrassing public records.”
Vermont Attorney General TJ Donovan said he’s relieved the case, which started in May 2015 as a public records request, is finally over.
“This has been going since before I assumed office,” said Donovan, who entered office after Sorrell in January 2017.
“This case was good in the sense that it brought clarity to the public records act — it doesn’t matter where the record is or where it’s stored, if it’s government business, it’s a public record,” Donovan said. “I give credit to Brady Toensing on that.”
Attorney General T.J. Donovan said the case set an important precedent. Photo by Glenn Russell/VTDigger
The attorney general then added, “The fact that the state doesn’t have to pay out attorney fees is always a good thing.”
Toensing, in his bid to collect the fees, pointed to a 2011 amendment to the Vermont Public Records Act requiring a public agency to pay legal fees when a public records requester is denied and then wins, or “substantially” prevails, in later court case.
Previously the legal standard permitted courts to award legal fees in such cases, but did not require it, with courts rarely required public agencies to pay.
“(Toensing) states that when the 2011 Amendment was proposed, the then-governor’s counsel told the Senate Committee on Government Operations that making attorney’s fees obligatory was necessary to ‘help give the law teeth,’” the high court’s decision stated.
“He cites comments by the state archivist to the same committee indicating that changing the fee provision from permissive to mandatory would improve access to public records,” the ruling stated, adding, “None of these comments or events even remotely suggest that the Legislature intended to provide attorney’s fees to self-represented attorneys.”
Toensing also argued that public policy favors awarding attorney’s fees to self-represented attorneys in public records case, contending it “will bolster the purpose of the law by ensuring an entire class of requesters enjoys the benefits of the mandatory fee provision” and by “punishing a recalcitrant agency.”
The high court disagreed in its ruling.
“The policy underlying the PRA’s fee provision, as other courts have found with respect to their comparable fee provisions, is not to reward successful litigants or punish recalcitrant agencies,” the decision stated, “but rather to encourage objectively well-informed, meritorious claims by awarding mandatory or permissive attorney’s fees, depending on the agencies’ response to the requests, to defray the cost of incurring those fees needed to obtain public records.”
In a separate ruling in July 2018, the Vermont Attorney General’s office was ordered to pay Toensing nearly $66,000 in legal fees in three cases in which it was found to have violated the state’s public records act.
Judge Mary Miles Teachout issued that ruling in the Washington County Superior civil court in three cases brought against the attorney general’s office by the Energy & Environment Legal Institute.
Brady Toensing won public records in the case, but not attorneys fees. Photo by Mike Dougherty/VTDigger
In one of the cases, the Free Market Environmental Law Clinic also was a plaintiff against the state. In two of those cases, former Attorney General Sorrell was named as a defendant, with the plaintiff’s contending that his personal email account may have records subject to public release under the law.
The two organizations represent business interests battling government entities over environmental issues. They had been seeking information about a group of state attorneys general offices — including Vermont’s — investigating Exxon Mobil’s alleged early knowledge and longtime denials of climate change.
Judge Teachout, in her ruling awarding the fees, pointed out that the organizations, represented by Toensing, prevailed.
Eventually, Toensing and the attorney general’s office settled on a $50,000 payment, instead of the $66,000 ordered by the judge, heading off an appeal of that decision to the Vermont Supreme Court by the attorney general’s office.
The case in which the ruling was issued Friday centered on a request by Toensing for public records related to campaign finance and pay-to-play allegations against Sorrell, the former attorney general.
The attorney general’s office did turn over thousands of emails to Toensing, but then balked when a request was made for records from the private accounts of Sorrell and eight other employees.
After Toensing prevailed, Chittenden County Superior Court Judge Robert Mello ruled that Toensing could not collect legal fees from the Vermont Attorney General’s office because he was representing himself, rather than the two industry groups as in the other cases.
That led Toensing to appeal that ruling to the Vermont Supreme Court.
Read the story on VTDigger here: High court says Vermont lawyer can’t collect fees from state in public records dispute.