Amicus Brief: MN AG Ellison's "Troubling Position" to Keep Bloomberg-Related Records Secret - Climate Litigation Watch

Amicus Brief: MN AG Ellison’s “Troubling Position” to Keep Bloomberg-Related Records Secret

Non-profit transparency groups Public Records Media and the Minnesota Coalition on Government Information held a press conference Wednesday to announce they filed an amicus brief with the Minnesota State Supreme Court in Energy Policy Advocates v. Ellison, a Government Data Practices Act (open records) case over emails pertaining to Ellison’s involvement in the climate litigation industry.

That case addresses Ellison’s move to expand Minnesota law, claiming a sweeping version of “common interest” exemption to the waiver of privilege, in order to keep from the public his Office’s correspondence pertaining to multi-state progressive AG efforts to impose the climate agenda through the courts, to bring on privately hired, Michael Bloomberg financed attorneys to assist with that campaign, and to work with other third parties toward the same end.

CLW readers know that Ellison was recruited to sue private companies over alleged climate change offenses by “attorneys advising Rockefeller family fund [sic]” — the RFF project called Center for Climate Integrity — working with RFF and through a local ‘cutout’ engaged for the purpose called Fresh Energy. That suit was filed on behalf of the Office of the Attorney General by two Bloomberg-provided attorneys, seemingly provided to Ellison at least in part for that purpose.

A trial court ruled against Energy Policy Advocates, which was then overruled by a State Court of Appeals panel. The AG requested State Supreme Court review, to forestall release of the records at issue and create this new exemption to waiver in Minnesota, allowing the OAG to work with outside parties beyond the scrutiny of the taxpayer who, Minnesota law makes clear, is the AG’s client.

Calling Ellison’s move a “troubling position,” the groups cite to Madison, Jefferson and Stan Lee in arguing that the people depend on access to government data to hold the Attorney General and his office accountable, that Ellison holds an office with sweeping authority that is otherwise unchecked but-for the public, and Ellison is clearly reinventing the law.

The filing comes as a blow to the AG and coalition of interests marshaled to help keep AG correspondence secret. “MNCOGI board member and spokesperson Don Gemberling is Minnesota’s leading authority on the Data Practices Act’s proper operation, having overseen compliance with the Act at every level of state and local government for over thirty years as Director of the Information Policy Analysis Division at the Minnesota Department of Administration.” (citation omitted)

Notable quotes (citations omitted):

Two centuries ago, James Madison observed that liberty requires elected leaders to “be kept in dependence on the people.” Madison later observed that people cannot “be their own governors” unless they “arm themselves” with knowledge of their leaders’ actions. This led Madison to conclude: “[a] popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy.”

In Minnesota, the “attorney general” is “chosen by the electors of the state.” Minn. Const. art. V, §1. The people are then the primary control on the AG, exercising this control at the ballot box. See id., art. V, §4. But as Madison recognized, any real exercise of electoral control depends on the people’s ability to look behind the government curtain—a reality made even more imperative here by the AG’s broad powers. …

These disclosures honor Thomas Jefferson’s wisdom that the way to achieve an informed electorate is by “giv[ing] them full information of their affairs through the channel of … public papers, and to contrive that these papers should penetrate the whole mass of the people.”

That right now stands in direct jeopardy. In this case, OAG asks the Court to adopt new, aggressive views on the scope of OAG data available to the people about OAG’s policy-making activities. If the Court accepts this invitation, the people’s access to OAG communications (like the ones detailed above) stands to disappear. Amici thus urge the Court to follow the plain text, structure, history, and purpose of the Data Practices Act, all of which directly repudiate OAG’s troubling position. 

With the AG’s “great power … come[s] great responsibility.” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 465 (2015) (quoting S. LEE & S. DITKO, AMAZING FANTASY NO. 15: SPIDER-MAN, p. 13 (1962)). It falls to the people, in turn, to monitor the AG’s activities and ensure that the AG remains “a responsible state officer who … act[s] in the public interest.” Longcor v. City of Red Wing, 209 Minn. 627, 635 (1940). 

The case is not yet scheduled for argument.