Vermont Attorney General Again Sued Over Records Involving Coordination With AGs, Activists - Climate Litigation Watch

Vermont Attorney General Again Sued Over Records Involving Coordination With AGs, Activists

GAO Files Suit against Vermont AG to Compel Release of Records Reflecting Work with Third Parties, Including Activists and Activist Attorneys General 

Public records show AGO has entered numerous secrecy pacts with other AGs, all are closely coordinating to keep public records from the public, all claiming to have contracted away the public’s open-records rights

MONTPELIER, VT, June 2, 2020 – Today Government Accountability & Oversight, P.C. (GAO) filed suit over Vermont Attorney General T. J. Donovan’s refusal – in coordination with other state attorneys general (AG) offices – to release correspondence reflecting his office’s work with outside activists, and those same AGs, to advance a shared political agenda. The suit against the Office of the Attorney General (AGO) under Vermont’s Public Records Act, on behalf of the transparency group Energy Policy Advocates (EPA).

The action in the Superior Court for Washington County, the second EPA suit against AGO filed in recent weeks by the public interest law firm, aims to compel AGO to release records which these AGs have coordinated to withhold. AGO has shared most of the public records sought, with others outside of state government. AGO claims it can shield some or even most of these from disclosure because it has entered agreements to not disclose them. As EPA’s complaint notes, there is no Vermont law suggesting that that’s how any of this works.

The complaint notes that “[a]lthough the Public Records Act reflects the legislative intent of making records available to the public on a liberal basis, and Chapter 1, Article 15 of the Vermont Constitution provides that only the legislature has the power to suspend the laws of the State of Vermont, AGO has admitted in various fora, including this Court in a related matter, that it has entered into at least seven purported ‘Common Interest Agreements’ during 2019-2020, which obligate AGO to consult with and obtain consent from other parties about possible release of Vermont records. AGO uses these pacts to shield records from the public eye, while nevertheless sharing such records with actors not employed by the State of Vermont.”

GAO board member and attorney Matthew Hardin filed the suit. Hardin previously won several open records cases fighting “a bogus effort” by AGO to hide records from the public on the same topic as the records it is presently shielding from scrutiny, a matter which also involved a similar secrecy pact among the same parties (the New York courts rightly acknowledged that purported common interest agreement was no such thing, and not privileged, in Competitive Enterprise Institute v. The State of New York. N.Y.App.Div., 161 A.D.3d 1283 (2018), 76 N.Y.S.3d 640). 

About that pact, Vermont’s Deputy AG Scot Kline had written to New York’s AGO expressing concern over adopting “an affirmative obligation to always litigate” record requests looking into their efforts. The actions prompting both recent EPA suits prove that AGO ultimately concluded – even after the New York court’s ruling – that releasing records illuminating its political alliances poses the greater risk than being caught making requesters “always litigate”, after contracting to give other states’ AG offices a veto over the release of Vermont records. 

The Caledonian-Record, in an editorial “AG Smackdown,” captured a key and highly relevant moment from those prior AGO open records cases:

“We get a request from [a group] and so one thing we might consider is where are they — who are these people?” [Chief Assistant Attorney General Bill] Griffin said in a transcript of the hearing. “Where are they going with this? And we Google them and we find, you know, coal or Exxon or whatever — and so we’re thinking this is — we better — we better give this some thought before we — before we share information with this entity.”

“Or it might be a news organization and we think, well, what are they going to do with it?” he continued. “Well, they’re going to publish it to the world. So that would be — I mean, that would be my mental impression and, you know, let’s exercise some caution. Is there some public interest publishing this information at this time? Probably not.”

To Griffin’s first argument, Vermont Judge Mary Miles Teachout asked… “So is that your argument?… That the Attorney General’s Office never has to comply with any public records request because it is the attorney for the state of Vermont?”

To which Griffin replied “We have to determine what’s in the best interest of the state.”

Again, as Judge Teachout ruled in that case, that’s not how this works. Nonetheless, EPA has obtained records confirming the AGOs raised “who is making making [sic] the request” when discussing coordinating their responses to EPA. Other public records obtained by EPA leave no room for doubt whether these pacts are being used to hide records and show that, far from claiming privileges only where necessary, AGOs are laboring to construct such claims.

AGO not only maintains that these purported contracts entered into on behalf of the state shield certain public records from disclosure, but are themselves beyond public scrutiny. This refusal is particularly remarkable in that the agreements have all been shared with other states; EPA has learned that some are with private parties. That was the subject of EPA’s suit filed in late April.

Public records obtained by EPA show that the pacts involve assisting the “climate nuisance” tort bar and have recently been invoked to hide coordination with former senior Obama Environmental Protection Agency appointees and career employees turned activists. All of these efforts seek to use the courts to revive and impose a shared, failed policy agenda.

“The public has a right to know how its institutions are being used, and what contracts it enters into in the public’s name,” said Hardin, who is also Energy Policy Advocates’ counsel in public records suits in Washington State, Maryland, and the District of Columbia.

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement