U.S. Right to Know v. University of Vermont

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2021 VT 33

No. 2020-110

U.S. Right to Know Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division

University of Vermont September Term, 2020

Helen M. Toor, J.

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.

¶ 1. COHEN, J. 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—

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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.

¶ 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).

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¶ 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).

¶ 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,

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

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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, Inc. 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 under the PRA. 2017 VT 99. We answered that question

affirmatively, noting that “[t]he PRA does not define ‘public record’ in reference to the location

or custodian of the document, but rather to its content and the manner in which it was created.”

Id. ¶ 14; see also Trombley, 160 Vt. at 108, 624 A.2d at 862 (evaluating whether documents were

exempt from disclosure “based on their content rather than where they are filed”). We also stressed

the limited reach of the PRA to allow public inspection of public records—“those produced or

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acquired in the course of public agency business.” Toensing, 2017 VT 99, ¶ 22 (quotation marks

omitted). We rejected the plaintiff’s suggestion that “any and all communications with or

documents related to” named state employees were disclosable. Id. (alteration omitted) (quotation

marks omitted). And we disavowed the suggestion that the PRA reaches any records related “in

any way” to the employees’ employment at the state agency or related “in any way” to public

business. Id. (quotation marks omitted). We drew a distinction between public records and

nonpublic records and noted that subjecting the latter to public disclosure would raise concerns

about the “constitutional privacy interests of state employees, would not further the public policy

of open government, and would expand the PRA beyond its intended purpose.” Id. ¶ 23.

¶ 14. We clarify two aspects of Toensing in light of UVM’s suggestion that the location

of a document is irrelevant to whether the document is a public record, and USRTK’s reliance on

the professor’s scope of employment. First, we did not hold that the location of a document is

irrelevant to whether the document is a public record. We were concerned with communications

related to agency business but stored in private accounts. See id. ¶ 9. We relied on the definition

of “public record,” which emphasizes the production or acquisition of a document “in the course

of public agency business,” and the purpose of the PRA, which is to ensure that the people can

“review and criticize” government actions—a purpose that would be defeated if government

officials could effectively hide government discussions in private accounts. See id. ¶¶ 14, 20-21

(quotations omitted). Thus, we had to look not just at the location of the records at issue but also

determine whether their content reflected government business. Though not dispositive, whether

an agency possesses a particular document is certainly a relevant factor in deciding whether the

document is a public record.

¶ 15. Second, we did not hold in Toensing that our public-records analysis turns on

whether the record was created within the scope of the government officer’s employment. We

relied on a Washington Supreme Court case concluding that agency employees’ text messages in

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private cell phones were subject to that state’s Public Records Act because agencies “ ‘act only

through their employee-agents’ and therefore ‘a record that an agency employee prepares, owns,

uses, or retains in the scope of employment is necessarily a record prepared, owned, used, or

retained by’ the agency.” Id. ¶ 17 (quoting Nissen v. Pierce County, 357 P.3d 45, 52-54 (Wash.

2015)). While other courts and state legislatures have adopted a “scope of employment” test to

establish whether a document is a public record, see, e.g., Pulaski County v. Ark. Democrat-

Gazette, Inc., 260 S.W.3d 718, 721 (Ark. 2007), we have not adopted this test and do not do so

here, cf. Herald Ass’n, 174 Vt. at 354-55, 816 A.2d at 473-74 (rejecting arguments that public

records were only those related to Governor’s duties or official acts).

¶ 16. With these principles in mind, we turn to the PRA’s statement of policy for further

evidence of the Legislature’s intent. There, the Legislature announced that “[o]fficers of

government are trustees and servants of the people and it is in the public interest to enable any

person to review and criticize their decisions even though such examination may cause

inconvenience or embarrassment.” 1 V.S.A. § 315(a). “All people,” however, “have a right to

privacy in their personal and economic pursuits, which ought to be protected unless specific

information is needed to review the action of a governmental officer.” Id. The Legislature then

described public records, a description which, though not a conclusive definition, provides

evidence of what the Legislature intended to capture with the term “public record.”

Public records contain information that allows government
programs to function, provides officials with a basis for making
decisions, and ensures continuity with past operations. Public
records document the legal responsibilities of government, help
protect the rights of citizens, and provide citizens a means of
monitoring government programs and measuring the performance
of public officials. Public records provide documentation for the
functioning of government and for the retrospective analysis of the
development of Vermont government and the impact of programs
on citizens.

Id. § 315(b).

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¶ 17. It is clear that by choosing the words “in the course of public agency business,” the

Legislature sought to shed light on government business, not the personal endeavors of state

employees. Thus, an essential factor in determining whether a given record is a public record is

whether its content reflects government—as opposed to personal—business. In that analysis, we

look to the Legislature’s description of public records for such considerations as whether the record

contains information bearing on a government function, provides government officials with bases

for making decisions, serves to ensure continuity with past government operations, or documents

responsibilities of government actors. Other necessary factors to examine are the circumstances

surrounding the record’s creation, for example, by whom, for whom, and for what purpose the

record was created; the role the record played in the functioning of the agency; and the record’s

location. Additional factors may become relevant in a given set of facts and underlying the

analysis is the Legislature’s instruction to construe the PRA liberally in favor of disclosure. See

id. § 315(a).

¶ 18. Applying these factors, we hold that Dr. Fukagawa’s emails are not public records.

To begin, the emails were sent using UVM’s server and they are stored on that server. As noted,

these facts are relevant but not dispositive. There is wide consensus among state courts applying

their open-records laws that the location of emails in public servers is insufficient by itself to make

them public records. See, e.g., Serv. Emps. Int’l Union Loc. 925 v. Univ. of Wash., 447 P.3d 534,

540 & n.5 (Wash. 2019) (rejecting argument that regardless of content, any message stored on

agency server would necessarily meet definition of public record and citing cases); Associated

Press v. Canterbury, 688 S.E.2d 317, 331 (W. Va. 2009) (holding that “a personal e-mail

communication by a public official or public employee, which does not relate to the conduct of

the public’s business, is not a public record subject to disclosure” and surveying case law from

other jurisdictions). Federal courts interpreting the FOIA similarly recognize the distinction

between personal and public records even when the records at issue are stored at a public agency.

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See, e.g., U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 145 (1989) (observing that FOIA

equivalent of “public record” does not include government employees’ personal records “even

though the materials may be physically located at the agency”); Consumer Fed’n of Am. v. Dep’t

of Agric., 455 F.3d 283, 287, 289 (D.C. Cir. 2006) (recognizing that location is insufficient by

itself to distinguish between agency and personal records and applying multiple-factor test

including creation, possession, control, and use of document by agency). The facts that the emails

were sent using the University’s server and currently reside there do not control our analysis.

¶ 19. Turning to the content of the emails, it is undisputed that the emails relate to Dr.

Fukagawa’s work on the journals and committees, not her work at UVM or other UVM-related

matters. Therefore, the content of the emails does not reflect government business. The content

reflects the personal endeavors of a government employee. We fail to see how these emails, sent

to and from entities unaffiliated with UVM, and concerning those entities’ affairs, contain

information bearing on UVM’s functions, provide university officials with bases for making

decisions, serve to ensure continuity with past university operations, or document responsibilities

of UVM officials. This factor weighs heavily against a conclusion that the emails are public

records.

¶ 20. As relevant to the circumstances surrounding the creation of the emails and the role

they played in the functioning of UVM, we next consider the connections USRTK draws between

the University and the professor’s work on the journals and committees. USRTK first observes

that the University’s email policy requires employees to use their UVM email account only for

UVM business, except for “occasional and incidental non-University matters.” We are told that if

Dr. Fukagawa sent thousands of emails to these entities using her UVM email account, then she

must have done so as part of UVM business, not “occasional and incidental non-University

matters.” The argument is unpersuasive. Whether a given record is a public record cannot turn

on the internal policies an agency chooses to implement at a particular time, on the extent to which

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agency employees abide by those policies, or on the subjective assessment of employees as to

whether they are conducting public business. To do so would be to hand the determination of what

constitutes a public record over to the same government actors from whom disclosure is sought.

As the Legislature recognized, government officials may have incentives to withhold documents

from public scrutiny, including inconvenience and embarrassment. See 1 V.S.A. § 315(a).

Accepting USRTK’s argument would undermine the Legislature’s policy of open government.

¶ 21. Next, USRTK observes that UVM benefits from, encourages, expects, and

promotes the professor’s work on such journals and committees. It maintains that UVM has

adopted guidelines and promotion criteria that compel professors to pursue the editorial and

committee work at issue. It further notes that UVM employs eleven people at the College of

Medicine to promote the work of the College’s faculty in order to attract donors and students and

spends thousands of public dollars in this promotional work. These considerations, it argues, make

Dr. Fukagawa’s emails the business of UVM.

¶ 22. The connections USRTK draws between UVM and the professor’s work on the

journals and committees are too tenuous to make these emails public records. We do not doubt

that UVM derives considerable benefits from the external work at issue here and that it spends

public funds leveraging those benefits. But these emails concern the private workings of entities

unaffiliated with UVM and thus “shed no light on how the government is conducting its business

or spending taxpayer money.” Griffis v. Pinal County, 156 P.3d 418, 422 (Ariz. 2007) (en banc).

We might be persuaded otherwise if the records at issue quantified or described the extent of UVM

professors’ involvement in journal and committee work—a memorandum, for example, prepared

for the purpose of promoting the professors’ outside roles and the expertise they acquire therefrom,

or retention and promotion assessments outlining a professor’s editorial and committee

accomplishments. Such records would be made for UVM and would have a role in the functioning

of UVM. Documents reflecting the fact that professors do this type of outside work may allow

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public inspection of UVM business. But the emails themselves, concerning the private affairs of

these unaffiliated entities, were not created for UVM and serve no role in the functioning of the

University.

¶ 23. Though we construe the PRA as liberally as possible in favor of disclosure, there

are limits to how generously we can construe the Act if we are to remain faithful to the distinction

between public and private records. The only factor that militates for a finding that the emails are

public records is the location of the records. As discussed, this alone is not enough to make these

emails public records. At bottom, the emails reflect the communications of a state employee

engaged in a personal endeavor. That UVM benefits from these efforts, and spends public money

leveraging those benefits, does not change the fact that the content of these emails does not reflect

government business, the emails were not sent to or produced for UVM personnel, and the emails

themselves played no role in the functioning of the University.

¶ 24. We note in closing that our conclusion is consonant with the disclosure exemption

for records “produced or acquired by or on behalf of faculty, staff, employees, or students of

[UVM] or the Vermont State Colleges in the conduct of study, research, or creative efforts, . . .

whether such activities are sponsored alone by the institution or in conjunction with a

governmental body or private entity,” until published or otherwise released to the public. 1 V.S.A.

§ 317(c)(23). This exemption contemplates UVM or the Colleges’ involvement in the study,

research, or creative efforts—an involvement that would likely make records related to those

activities public records. Note the Legislature’s language: “sponsored alone by the institution or

in conjunction with a governmental body or private entity.” Id. The exemption assumes that UVM

or the Colleges are involved in and may sponsor the study, research, or creative efforts. If Dr.

Fukagawa’s emails had been produced or acquired in journal or committee work sponsored by

UVM, the emails may have been public records. The exemption may then have served the role of

exempting the public records from disclosure. Our conclusion in this case does not render the

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§ 317(c)(23) exemption superfluous. The exemption continues to protect records with sufficient

connection to UVM and the Vermont State Colleges by exempting them from disclosure. There

is no showing of such a connection here.

¶ 25. There is no genuine dispute of material fact. Because the requested records are not

public records under the PRA, they are not disclosable and UVM is entitled to judgment as a matter

of law.

Affirmed.

FOR THE COURT:

Associate Justice

¶ 26. EATON, J., dissenting. The majority goes a bridge too far in holding that the

documents requested by U.S. Right to Know (USRTK) are not agency records of the University

of Vermont (UVM) acquired in the course of its business for purposes of Vermont’s Public

Records Act (PRA). For several reasons, I do not agree with that conclusion.

¶ 27. There are some points on which I wholeheartedly agree with the majority, including

its discussion of the burden of proof, its rejection of the “scope of employment” test to determine

whether records are acquired in the course of agency business for purposes of the PRA, and its

recognition of the liberal construction to be afforded the PRA. See ante, ¶¶ 9, 15, 17. Where I

part ways with the majority is in its determination that the records in question were not “acquired

in the course” of UVM’s business and thus are not subject to the PRA. See ante, ¶¶ 18-23. I

disagree on that point and would remand to the trial court to determine whether one or more

exemptions from disclosure, such as 1 V.S.A. § 317(c)(23), apply to some or all of these records.

¶ 28. First, the importance of the policy behind the PRA cannot be overstated. That the

PRA is entitled to a liberal construction in making public records available to any person, which

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the majority freely acknowledges, augers strongly in favor of document disclosure. But I believe

the majority does not give sufficient consideration to this policy. See State v. Berard, 2019 VT

65, ¶ 12, n.1, 211 Vt. 39, 220 A.3d 759 (recognizing that to effectuate legislative intent, Court

must “consider the plain language of a statute in the context and structure of the statute as a whole,

rather than in isolation” (quotation omitted)). It is not simply a judicial interpretation of the policy

behind the PRA; rather, it is an express statement of legislative policy embedded within the PRA

itself.

Officers of government are trustees and servants of the people and
it is in the public interest to enable any person to review and criticize
their decisions even though such examination may cause
inconvenience or embarrassment. . . . Consistent with these
principles, the General Assembly hereby declares that certain public
records shall be made available to any person as hereinafter
provided. To that end, the provisions of this subchapter shall be
liberally construed to implement this policy, and the burden of proof
shall be on the public agency to sustain its action.

1 V.S.A. § 315(a). This strongly stated and crystal-clear policy should not be lightly cast aside.

See Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232, 233 (1983) (per curiam) (explaining that even

plain-meaning rule “is no more than an aid in our efforts to determining legislative intent,” and

like all other rules of construction, is undergirded by “the fundamental rule that we must ascertain

and give effect to the true intent of the legislature, for it is that intent which constitutes the law”).

¶ 29. If this statement of policy were not enough, the PRA further provides, in 1 V.S.A.

§ 315(b), that public records are “essential” to the administration of government for many reasons,

and “provide documentation for the functioning of government and for the retrospective analysis

of the development of Vermont government and the impact of programs on citizens.” As the

majority recognizes, see ante, ¶ 16, public access to agency records serves several vital functions,

including helping to safeguard the rights of Vermonters by furnishing a means through which to

monitor government programs and measure the performance of public officials. This principle

goes right to the heart of the relationship between government agencies and the public.

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¶ 30. We have consistently held that the PRA expresses a strong legislative policy in

favor of disclosure. Shlansky v. City of Burlington, 2010 VT 90, ¶ 12, 188 Vt. 470, 13 A.3d 1075

(explaining that “open access to governmental records is a fundamental precept of our society”);

see also Rutland Herald v. City of Rutland, 2013 VT 98, ¶ 12, 195 Vt. 85, 84 A.3d 821 (stating

that “the policy underlying the PRA clearly favors the right of access” (quotation omitted)); Price

v. Town of Fairlee, 2011 VT 48, ¶ 13, 190 Vt. 66, 26 A.3d 26 (noting that Legislature’s adoption

of PRA “reaffirmed the fundamental principle of open government that public officials are trustees

and servants of the people and . . . . [t]he PRA thus expresses a strong legislative policy favoring

access to public documents and records” (quotations omitted)); Wesco, Inc. v. Sorrell, 2004 VT

102, ¶ 10, 177 Vt. 287, 865 A.2d 350 (“The [PRA] represents a strong policy favoring access to

public documents and records.”). Yet the majority departs from the fundamental policy behind

the PRA in holding that the documents and records sought by USRTK are not public records.

¶ 31. Moving beyond the policy considerations of the PRA to the language of the Act

itself, the PRA makes available for inspection or copying any public record of a public agency—

such as UVM—subject to statutory exemptions from disclosure. 1 V.S.A. §§ 316(a), 317(b). The

definition of public records in the PRA is expansive, consistent with the forceful policy animating

the PRA itself. See Toensing v. Attorney General of Vermont, 2017 VT 99, ¶ 14, 206 Vt. 1, 178

A.3d 1000 (noting that we have “described this definition as ‘sweeping.’ ”). Section 317 defines

a “public record” or “public document” as “any written or recorded information, regardless of

physical form or characteristics, which is produced or acquired in the course of public agency

business.” 1 V.S.A. § 317(b). “Business” is a broad term, encompassing in this context an

agency’s overall role or function, but also reaching more discrete “field[s] of endeavor,” or even a

particular “immediate task or objective.” Business, Merriam-Webster Dictionary,

https://www.merriam-webster. com/ dictionary /business [https://perma.cc/572L-D7YK].

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Looking at the totality of the circumstances, as I believe we should, these records were acquired

by UVM in the course of its business.

¶ 32. First, these records are not personal records of Dr. Fukagawa, clandestinely stored

on the UVM computer system without UVM’s knowledge or consent. While employed as a

professor at UVM, Dr. Fukagawa stored the requested records on her uvm.edu email account.

UVM has a policy regarding personal use of the UVM computer system which explains that

information-technology resources such as a university email account are “critical” to “the success

of our community members in their . . . teaching, scholarship, and service.” The policy allows for

employees’ “occasional and incidental” use of the system for “non-University matters.” It was

admittedly not enforced, allowing for the storage of these records in the UVM computer system.

UVM professors use the UVM computer systems for their noninstructional use, which was well-

known to UVM and which it permitted, in violation of its own unenforced policy. At the same

time, UVM recognizes and warns the users of its computer system that email and other documents

stored on UVM computer equipment are subject to public-records laws and may be requested by

and disclosed to members of the public. While we recognized in Toensing that the location of

requested records for PRA purposes is not determinative, see 2017 VT 99, ¶ 14, the storage of the

records in the UVM computer system would not have been possible had UVM foreclosed it by

enforcing its policy. Similarly, the warning UVM provided to its computer users of potential

application of the PRA to records stored on the UVM computer system would not have been

necessary if UVM did not recognize that location of records within its system might expose those

records to disclosure under the PRA.

¶ 33. More importantly, however, these records were acquired in the course of UVM’s

business because UVM’s policies expected and encouraged professors, such as Dr. Fukagawa, to

do scholarly work on non-UVM academic journals and committees and gave consideration to that

work in making faculty promotions and in granting tenure. The work documented in these records

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was an aspect of UVM’s promotion matrix for professors. UVM also expected or could reasonably

have anticipated that a professor’s scholarly work would be done using UVM’s computer system,

especially since UVM turned a blind eye to how its system was used while concurrently

encouraging the work generating those documents. The requested records are exactly the kind of

documents UVM expected and encouraged its professors to generate to be considered for

promotion, and are stored exactly where UVM permitted and expected them to be stored.

¶ 34. I do not disagree with the majority’s articulation of the factors relevant to

determining whether a given record concerns government business. Ante, ¶ 17. However, on the

record before us, I cannot agree with the underlying conclusion that the emails are not public

records because they “concern the private workings of entities unaffiliated with UVM and thus

‘shed no light on how the government is conducting its business or spending taxpayer money.’ ”

Ante, ¶ 22 (quoting Griffis v. Pinal County, 156 P.3d 418, 422 (Ariz. 2007) (en banc)). The record

reflects that the emails sought by USRTK related to Dr. Fukagawa’s editorial roles and work on

advisory committees. This was work the University encouraged through its evaluation metrics

and facilitated through its information-technology services. Further, as the majority

acknowledges, UVM subsequently expended public funds to leverage the work for “considerable

benefit[].” Ante, ¶ 22. In this context, the fact that the records concern the workings of

unaffiliated entities cannot mean they are categorically incapable of shedding light on how UVM

conducts its business or spends taxpayer money.

¶ 35. My conclusion that the emails at issue are public records is reinforced by the

existence of § 317(c)(23), the PRA exemption for “data, records, or information produced or

acquired by or on behalf of faculty . . . of [UVM] . . . in the conduct of study [or] research . . .

whether such activities are sponsored alone by the institution or in conjunction with a

governmental body or private entity” until publication, patent, or other disclosure by UVM or an

authorized agent. 1 V.S.A. § 317(c)(23). The exemption applies to, among other things,

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“correspondence.” Id. Were correspondence generated or received by UVM faculty in the conduct

of academic research categorically beyond the purview of documents produced or acquired in the

scope of agency business, then the Legislature’s inclusion of this language in § 317(c)(23) would

be mere surplusage. Doncaster v. Hane, 2020 VT 22, ¶ 20, __ Vt. __, 229 A.3d 1026 (“We

presume that language is inserted advisedly and that the Legislature did not intend to create

surplusage.” (quotation omitted)). Cf. 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) (concluding PRA

applies to UVM because if it did not “there would be no need to carve out an exception for student

records”). I presume that the Legislature included § 317(c)(23) advisedly because it contemplated

that material similar to that at issue here would meet the statute’s definition of a public record.

¶ 36. The majority posits that correspondence generated in the course of research

“sponsored” by UVM—such that it is exempt from disclosure under § 317(c)(23)—would “likely”

first meet the definition of a public record. Ante, ¶ 24. The majority concludes that the existence

of the exemption does not undercut its holding that Dr. Fukagawa’s emails are not public records.

But the facts of this case illustrate the circularity of this logic: it is impossible to discern from the

summary-judgment record before us whether the research at issue was “sponsored” by UVM in

conjunction with separate entities. This is so because, although disclosure exemptions are to be

construed narrowly, see Price, 2011 VT 48, ¶ 18, the term “sponsor” is a broad one, encompassing

not only the provision of financial support or assumption of responsibility, but also the act of

promoting, advocating for, or even favoring a venture. Legal Definition of Sponsor, Merriam-

Webster Dictionary, https://www.merriam-webster.com/dictionary/sponsor#learn-more

[https://perma.cc/82E9-4CWS]; see also Sponsor, Black’s Law Dictionary (11th ed. 2019).

Certainly, UVM is both incentivizing its professors to engage in such research and spending money

to use the work involved for its own promotional purposes. Despite the questions this raises as to

the applicability of the exemption, with a broad brush, the majority paints all records similar to

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those at issue here as beyond the public’s reach. This holding means that no court will have

occasion to consider the more specific question of whether UVM, in any sense of the word,

“sponsored” the research at issue in conjunction with another entity. I do not believe that the

Legislature intended to thus collapse the courts’ inquiry. Rather, § 317(c)(23) evinces a legislative

expectation that materials like Dr. Fukagawa’s emails will meet the broad definition of public

records, and their disclosure should therefore hinge on the finer factual distinctions to be drawn in

applying the exemptions.

¶ 37. In fact, the majority tacitly acknowledges the close relationship between the records

in question and the University’s business in explaining that they might reach a different conclusion

“if the records at issue quantified or described the extent of UVM professors’ involvement in

journal and committee work.” Ante, ¶ 22. But the distinction it draws finds no support in the

statutory language, which describes public records as those “produced or acquired in the course of

public agency business.” 1 V.S.A. § 317(b) (emphasis added). Had the Legislature intended to

limit the definition of public records to deliberative materials and exclude the source materials

upon which such analysis is necessarily based, it could easily have omitted the words “or acquired”

therefrom. See Smith v. Town of St. Johnsbury, 150 Vt. 351, 355, 554 A.2d 233, 237 (1988)

(“Where the meaning of the words chosen is plain, we must give effect to the words chosen.”).

¶ 38. Here, it is undisputed that UVM benefitted from the scholarly faculty work in terms

of its academic reputation and in faculty and student recruitment, two aims which indisputably fall

under the wide umbrella of UVM’s “business.” See supra, ¶ 31. The academic work done by

faculty was promoted by UVM to the general public through publications it created discussing the

results of that work, which were made and disseminated at a financial cost to UVM, through a staff

it hired for that purpose. When UVM emphasizes and tracks the scholarly work done by its

professors and seeks to benefit not only from that work, but the records documenting it—records

which UVM receives and stores in its computer system—those are records “acquired in the course

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of UVM’s business.” I do not believe it is a proper application of the PRA to allow UVM to rely

on the existence and content of the scholarly work documented in the requested records when it

suits its purposes, such as in promoting the University, but to claim the documents are not records

“acquired in the course of their business” when public disclosure does not suit its purposes.

¶ 39. In short, UVM made this type of scholarly work part of the job of professors seeking

tenure, allowed the records generated in the course of such pursuits to be stored in their computer

system, and used the work thus documented in its consideration of faculty promotions and in

promoting the University in the academic and public communities. Given these factors, UVM

should not now be heard to say records concerning that work are not records produced or acquired

in the course of UVM’s business, especially when the lens afforded to the determination of that

issue is a liberal construction in favor of disclosure.

¶ 40. A categorical holding that these are not agency records falling within the scope of

the PRA goes too far. I would remand for the reasons stated for consideration of exemptions to

disclosure under the PRA and therefore respectfully dissent.

Associate Justice

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