Vermont Attorney General Sued to Compel Release of Improper Secrecy Pacts with other Attorneys General - Climate Litigation Watch

Vermont Attorney General Sued to Compel Release of Improper Secrecy Pacts with other Attorneys General

AGO entered at least six contracts giving other states’ AGs veto power over Vermonters’ right to see Vermont public records, forcing requesters to sue; claims the pacts themselves are secret

MONTPELIER, VT, April 27, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Vermont Office of the Attorney General (AGO) under Vermont’s Public Records Law, on behalf of the transparency group Energy Policy Advocates (EPA). The lawsuit, filed in the Superior Court for Washington County by GAO board member and attorney Matthew Hardin, aims to compel the AGO to release several secrecy pacts with other state AG offices. This suit was brought after AGO made the remarkable claim that it has contracted its way out of the legal obligation to provide the public with their own records.

On March 27, 2020, EPA requested four categories of records, only one category of which is at issue in this lawsuit. Specifically, EPA requested that AGO provide copies of certain “common interest agreements” signed in 2019 or 2020 concerning the “climate” agenda.

AGO denied this request, claiming that six purported common interest agreements are exempt from disclosure as attorney-client communications or attorney work product. EPA filed the required administrative appeal, which AGO upheld in favor of itself on April 23, 2020, stating, “The agreements are subject to attorney-client privilege because they are confidential communications between the parties’ attorneys to facilitate the rendition of legal services to clients. In addition, the agreements constitute attorney work product because they were prepared by attorneys in anticipation of litigation. Furthermore, the agreements are subject to the common interest privilege as they were made in furtherance of the parties’ shared interests and strategies.”

The complaint notes that “Although 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 the exhibits mentioned above that it has entered into at least six purported “Common Interest Agreements” during 2019-2020, which it uses to shield records from the public eye, while nevertheless sharing such records with” third parties.

Hardin previously won several open records cases fighting “a bogus effort” by Vermont’s AGO to hide records from the public on the same topic, also including 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 today’s suit prove that AGO concluded that releasing records about its political alliances poses the greater risk, making requesters file suit after – as other public records show – 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 Hardin litigated:

“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.”

History, and that same unlawful bunker mentality, appears to be repeating itself here. 

About today’s suit Hardin noted, “The Attorney General is improperly hiding contracts with other states, entered into on behalf of Vermont’s citizens yet designed to hide otherwise public records from those same citizens. The notion that a public office can shield from the public a contract, particularly one purporting to create a double wall of secrecy allowing that office to shield still more records from the public, has no support in Vermont’s Public Records Act or any other law.”

“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.

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