The Energy and Environment Legal Institute, a nonprofit based in Washington, D.C., has sued over communications between the attorneys general of Vermont and New York State.
Bill Sorrell, the former Vermont attorney general, was part of a Climate Change Coalition of 19 states that considered investigating Exxon Mobil over allegations that the oil giant for decades hid research about the tie between fossil fuel consumption and the dangers of global warming, and, in so doing, deceived investors and the public.
The Vermont and New York attorneys general shared information under a common interest agreement that shields communications between attorneys from disclosure requirements when they are preparing to file a lawsuit.
The agreement said there could be a lawsuit at some point, but a case was not filed.
When the Energy and Environment Legal Institute requested records shared between the Vermont and New York attorneys general, Vermont issued a blanket denial. The institute appealed the decision and later filed a lawsuit.
Matthew Hardin, an attorney for Energy and Environment Legal Institute, says because Vermont shared information with New York state and then didnโt actually file a lawsuit the attorney general has no right to withhold the records.
โYou canโt share something and then say itโs secret,โ Hardin said in an interview.
In a hearing last week, Bill Griffin, the chief assistant attorney general, told a Washington County Superior Court judge that state records are broadly protected under the attorney-client privilege exemption of the Vermont Public Records Act.
Judge Mary Miles Teachout said that by Griffinโs reasoning โanything that happens in the Attorney Generalโs Office would all fall within that umbrella [attorney client privilege] that youโre claiming whether or not thereโs a common interest agreement.โ
โThatโs right,โ Griffin said. โWeโre not relying — thatโs free-standing, apart from any common interest agreement.โ
โSo is that your argument?โ Teachout asked. โThat the Attorney Generalโs Office never has to comply with any public records request because it is the attorney for the state of Vermont?โ
โWe have to determine what is in the interest of the state,โ Griffin said.
Griffin also explained that not all requesters are the same. The Vermont Attorney Generalโs office finds out who is asking for records before releasing documents.
โWe get a request from [Energy and Environment Legal Institute] and so one thing we might consider is where are they — who are these people?โ Griffin said in a transcript of the hearing. โWhere are they going with this? And we Google them and we find, you know, coal or Exxon or whatever — and so weโre thinking this is — we better — we better give this some thought before we — before we share information with this entity.โ
โOr it might be a news organization and we think, well, what are they going to do with it?โ he continued. โWell, theyโre going to publish it to the world. So that would be — I mean, that would be my mental impression and, you know, letโs exercise some caution. Is there some public interest publishing this information at this time? Probably not.โ
Hardin, the lawyer for Energy and Environment Legal Institute, said that the AGโs office was arguing that โeverything is confidential, except for the things that they choose to disclose.โ
โThey disclose what they feel like and they donโt disclose what they donโt feel like,โ Hardin said. โAnd now itโs come out in oral argument that one of the things that they do to determine whoโs entitled or who they will provide public records to is they do a Google Search.
โSo my clients donโt have rights under the Public Records Act because a Google search conducted by Attorney Generalโs employees says that theyโre bad people, basically, and I just donโt think thatโs what the law is,โ Hardin continued. โI believe that the law is neutral. I believe that it applies to all of the citizenry.โ
Hardin said Energy and Environment Legal Institute asked 10 attorneys general involved in the Climate Change Coalition whether they were asked to share communications and if so, whether they agreed to do so or not.
โWe wanted to know how many times Vermont consented or not to sharing,โ Hardin said.
Vermont denied the instituteโs public records request while other states responded without protest, he said.
โThe attorney generalโs office, essentially, wishes that it were exempt as a blanket matter from the Vermont Public Records Act, but thatโs not — thatโs not how the legislature wrote the law,” Hardin told the judge. “They have to claim the same exemptions every other agency is entitled to and they just donโt fit in this case.โ
In a rebuttal at the end of the hearing, Griffin walked back his statements about how the AGโs office treats requesters. โWe agree totally with the suggestion that the access to records law applies equally to all of — all requesters,โ Griffin said. โI didnโt mean to suggest otherwise and Iโm not suggesting otherwise.โ
In an interview, newly elected Vermont Attorney General TJ Donovan defended Griffinโs comments about the AG’s review of requesters.
“I think Griffin was unequivocal about the fact that access to public records applies equally to everyone,” Donovan said. “And this issue of Googling … is just to provide context. It’s not a determining factor about whether or not the records requested is granted or denied, it’s just to say, who are these guys.”
Donovan says his office reserves the right to withhold documents under attorney client privilege.
“The state of Vermont is our client in matters that we are involved in,” Donovan said. “At some point in time, we will assert attorney-client privilege.”
There is no bright line rule, however, Donovan said. Decisions about what records are released is “very fact and case specific.”
Private email case also pending
The lawsuit with Energy and Environment Legal Institute is not the only records case Griffin and the AGโs office is facing right now.
Brady Toensing, a Charlotte attorney who is local counsel for the institute, sued Donovanโs predecessor Bill Sorrell over access to government communications on private email accounts.
The original request was made in December 2015 for communications over a four-year period from Jan. 1, 2011 between nine officials with the Vermont Attorney Generalโs office and employees and 30 other individuals and organizations.
The AG identified 13,629 emails and provided the records to Toensing over the course of a year. The response was completed in April 2016. Toensing later filed an appeal on the grounds that the AG did not search private email accounts and text messaging accounts for correspondence about government business.
Public records from government email showed that Sorrell went on junkets paid for by corporations and received donations from lobbyists, according to reports from Seven Days newspaper.
Sorrell received a $10,000 campaign contribution from a law firm he later hired.
Toensing sued for private email records in June 2016.
On Feb. 8, the Chittenden County Superior Court ruled that public records created or placed on private email or text messaging accounts are not subject to search or disclosure under state law.
The trial court ruled that searches of private accounts โraised constitutional privacy concerns.โ
โUnder Toensingโs logic, the private communications accounts of any and all public officials and employees would be subject to search upon request,โ the court wrote. โThat cannot be a result the legislature intended or even contemplated.โ
Last month, Toensing appealed the decision to the Vermont Supreme Court.
In a filing with the high court, Toensing says โthe trial court described its own ruling, which allows state employees to โavoid valid public records requests merely by conducting official work-related communications on private email and text messaging accounts,โ as โa serious and frankly, disturbing concern.โโ
Toensing cites a California case in which a judge ruled that elected officials shouldnโt be allowed to use a third party email address on a personal computer to โshield public records related to township activity.โ
The San Jose ruling is one of a half dozen state and federal decisions Toensing used to press his case with the Vermont trial court.
Judge Robert Mello, of Chittenden County Superior Court, said these cases โoffered no helpful guidance to the present case.โ
Toensing argues Melloโs ruling was based on โa narrow reading of what constitutes a public record under the Vermont Public Records Act.โรขยยจ
