[I]n a victory for open records advocates, a Washington Superior Court judge has ruled that the Vermont attorney general’s office cannot categorically deny public access to documents.
Judge Mary Miles Teachout ordered the AG’s office to release records to the Energy and Environment Legal Institute in 30 days. The institute, a nonprofit based in Washington, D.C., sued over communications between the attorneys general of Vermont and New York state.
In a related case, Teachout has ruled that former Vermont Attorney General Bill Sorrell must give up records created on a private email account, and because he is no longer a public official, Sorrell is now a defendant in the lawsuit. As a defendant, he will be compelled to release records and submit to a deposition.
Matthew Hardin, an attorney for the Energy and Environment Legal Institute, requested records shared by Vermont and New York attorneys general.
Sorrell and the New York attorney general were 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 attorneys general, Vermont issued a blanket denial, using the confidentiality and privilege exemptions in the Vermont Public Records Act.
The Hardin appealed the decision and later sued.
The AG’s office argued that releasing the records would violate attorney-client privilege rules that protect the privacy of the client. The client, in this case, is the state of Vermont.
In a hearing last spring, Bill Griffin, the chief assistant attorney general, told the court that the AG’s office “exercises caution” before releasing records to the media and requesters with a political slant. Griffin says requesters are Googled before the AG responds to requests.
“It might be a news organization and we think, well, what are they going to do with it?” Griffin said. “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.”
Hardin said the AG’s office was arguing that “everything is confidential, except for the things that they choose to disclose.”
Judge Teachout ruled that the obligation of the AG’s office to be transparent with the public trumps privacy.
She cites the Public Records Act, which says that the government must provide for “free and open examination of records.” The law refers to the Vermont Constitution, which says that “Officers of the government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.”
While certain exemptions to the law may be claimed, enabling government officials to deny or redact records, Teachout ruled that those exceptions to the law must be interpreted narrowly.
Attorney-client privilege, she wrote, may not be extended to the administrative and operational functions of state government.
“Because the categorical claims of both confidentiality and privilege are too broad, the Vermont Attorney General’s motion for summary judgment is denied,” Teachout wrote.
The Vermont attorney general’s office has 30 days to submit all non-exempt records requested by the Energy and Environment Legal Institute.
Griffin said in an interview that the AG’s office will provide the records.
“We are going to do the right thing,” Griffin said. “We will be looking at it over the next couple of weeks and try to fulfill our professional responsibility and address the court’s concerns.”
Griffin said the decision in the second lawsuit, in which Sorrell will be compelled as a defendant to release private email records and testify, “was a surprise.”
“As you are probably aware, they filed the motion in February after he left office,” Griffin said.
Griffin argued that Sorrell’s private email records couldn’t be released because he was no longer the Vermont attorney general.
Hardin said when the AG’s office denied the records request he moved to attach Sorrell to the lawsuit, which sought government and private email communication.
“He will have to file an answer, respond to a subpoena and sit for a deposition,” Hardin said. “I look forward to deposing Bill Sorrell and seeing what he says about his gmail accounts.”
Sorrell said in an interview that he wants the truth to come out about his work on the climate change issue.
“I never tried to bypass the state records law with private email,” Sorrell said. Any emails he received on his private account were forwarded to his government email, he said.
“If this group thinks I am part of a cabal of liberal AGs who believe climate change is real and greenhouse gas emitters bear responsibility, I am of that view, but there was never any conspiratorial attempt to use private email.”
Hardin said the judge’s ruling on private email is a game changer for open records advocates.
Brady Toensing, a Republican activist, is suing the AG’s office over private email in a case that is now before the Vermont Supreme Court.
VTDigger, the Caledonian Record, and other newspapers filed an amicus brief in Toensing’s case.
