What’s ‘Due Process’? Email shows FOI Commission all on the same “Teams”
Possibly explains bizarre flip-flop after AG implied tough times ahead for errant FOI Commissions
As CLW readers recall, CT OAG not only sought (and got) a Bloomberg-provided activist attorney to help drive the donor’s agenda through the public’s office, but then filed suit against energy companies as part of the wave of AG suits and supportive filings that, curiously, proliferate with Bloomberg-provided activist attorneys. Now there’s much more to the story.
As prelude, in December Connecticut Insider‘s Marc E. Fitch initially wrote up a strange about-face performed last March by the Nutmeg State’s FOI Commission. That piece began:
“On May 25, 2022, the Connecticut Freedom of Information Commission (FOIC) did something fairly unusual: it changed its mind, reversing a unanimous decision made by the commission in January which had required the Connecticut Office of the Attorney General to turn over un-redacted documents related to the pursuit of climate litigation, likely involving Attorney General William Tong’s lawsuit against ExxonMobil.
The reversal was made sua sponte, a legal term meaning of one’s own accord, or voluntarily. The January decision involved two separate requests the commission had consolidated into one for the purpose of argument and discussion. In the reversal, the FOIC exercised its established power to voluntarily vacate or reconsider within 40 days. But the complete and unanimous reversal, with little explanation from the commission other than saying they reviewed the case and arguments, left the complainants baffled.”Marc Fitch, Yankee Institute, “Secrecy Pact: the FOI Commission, climate litigation, and hidden documents,” Inside Investigator
Sua sponte it may technically have been. But that May 25, 2022 reversal followed some pregnant hints dropped by the AG’s attorney in a rather exercised objection to having been ruled against (yet again). The senior OAG attorney’s presentation accused the requester even of “breaking in to the OAG’s communications” with a FOIA request, and saying “no attorney anywhere would release these documents because they would be privileged everywhere” (they’ve been released by many other OAGs, so that’s just bizarre). But also there was the riff that, as FOIC’s lawyer who would have to defend FOIC, the OAG wondered what if the CT FOI Commission’s FOIA troubles began to mount? (available here. The relevant consideration begins precisely at the one-hour mark; OAG begins at 1:04:20, and more specifically ca. 1:09:40, and he drops the hammer at 1:10).
OAG’s audio is garbled, but its message seems to have come through.
Suddenly, the Commission had a change of heart.
To recap, in short:
- Energy Policy Advocates originally prevailed, and the FOI Commission unanimously adopted a recommendation by Hearing Officer Reed that the AG had not met his burden to hide these records.
- The AG immediately moved to stay the decision, and FOIC barred EPA from presenting arguments; the AG’s Office dropped its hint about, well, imagine if let’s say you all were hit with FOIA requests…
- “At some unknown date or time FOIC staff apparently notified the Commission that it would reconsider its earlier decision. No communications with respect to this reconsideration are in the record, nor has the record established whether there were communications by OAG with the Commission, its staff or others. The Commission decided on May 12, 2022 to vacate its earlier decision and remand the matter to the former ombudsman for reconsideration. Remarkably, the Ombudsman, appointed without explanation, came to the exact opposite result of Hearing Officer Reed, without explanation for the reversal.” (quoting a brief recently filed by EPA with the Superior Court)
This second FOI matter, therefore, was a much less vexing legal question than the Commission had already ruled on in EPA’s favor previously, and was largely already settled.
Remarkably, OAG’s heavy-handed tactic of reminding the administrative judges that they were also among OAG’s clients seems to have worked. FOI Commissioner Fuzesi appeared to be particularly rattled at the prospect OAG suggested and steered a reversal. Rather than rule consistently with a decision it had also recently reached and in accordance with its own precedents on work product dating back to 2013, the Commission voted to remand this decision back to Committee staff for a rethink. So, on to court.
Making the much more detailed story relatively short, in preparation for a hearing on those CT FOIA requests, attorneys for Energy Policy Advocates were provided documents giving “reasons to suspect the Administrative Record in this matter may be incomplete.”
More specifically, turns out the FOI Committee had a private pre-hearing two days prior, on May 23, 2022 before the actual hearing in which the FOIC performed its remarkable acrobatics of coming around to the AG’s way of looking at things. Specifically, that meeting was arranged to discuss EPA’s case, outside the presence of EPA, its lawyers, or the public itself.
Energy Policy Advocates learned of this as its filing deadline neared, and so noted the development and attaching the email as an exhibit it in a brief to the state Superior Court, indicating we should expect further pursuit of this highly curious matter.