A conservative legal group is accusing state Democratic officials of conspiring to flout public records laws in order to keep secret details of a campaign to bring racketeering charges against climate policy dissenters.
Democratic attorneys general led by New York’s Eric Schneiderman are seeking to block efforts to obtain documents about their efforts by invoking an overbroad claim to secrecy in ongoing legal proceedings, according to the Energy and Environment (E&E) Legal Institute.
"These activist AGs are trying to write themselves out from freedom of information laws their legislatures have written them into," E&E senior legal fellow Chris Horner said in a Wednesday statement.
According to Horner, "they are hiding behavior that seems to be precisely the sort of abuse lawmakers sought to expose to sunlight when deciding to cover their states’ chief law enforcement officers under FOIA laws, particularly their use of nearly limitless powers to chill opposition and damage political opponents."
Schneiderman and his team of state AGs have pursued a legal campaign against oil giant ExxonMobil since last year. They allege that the company misrepresented the dangers of climate change to its investors and the public, and enlisted nonprofit advocacy groups to advance their alleged fraud.
Schneiderman has subpoenaed Exxon, but neither he nor any other AG involved in the effort has so far taken legal action against the company or any other party to the alleged racketeering scheme.
Despite the absence of any litigation, Schneiderman and his collaborators worked behind the scenes to shield their work from public scrutiny by attempting to exempt it from state and federal open records laws under the theory that internal communications would compromise their legal efforts.
Attorneys general involved in the effort circulated a common interest agreement in March that detailed their cooperation in the Exxon matter. It explicitly prohibited signatories from sharing information about the legal campaign.
The agreement stipulated that if any relevant information "is demanded under a public records law, the party receiving the request shall … refuse to disclose any shared information unless otherwise required by law."
The agreement all but required every state AG’s office party to it to go to court to prevent any covered information from becoming public.
After a Schneiderman aide circulated a draft of that agreement, an employee of Vermont’s attorney general responded, "our office is okay with refusing to disclose covered documents if we can do so under our current law, but we really avoid taking on an affirmative obligation to always litigate those issues."
Others signed on eagerly. "No comments. I will sign," an aide to Rhode Island’s AG wrote in response.
E&E obtained those emails through a prior open records request, but it says that the language of the agreement is illegally preventing the group from obtaining records from subsequent requests.
In June, the Illinois attorney general’s office cited the common interest agreement in withholding documents from an E&E open records production. Those documents included materials handed out at a March meeting between Schneiderman and other AGs and, in a twist that Horner described as Kafkaesque, a copy of a revised agreement crafted at that meeting.
"They're hiding behind a contracted promise to withhold/make people sue, hiding even the contract promising this, and hiding even the parties involved in the contracted promise," Horner said in an email.
According to E&E, the language in original common interest agreement is so broad that it cannot be reasonably interpreted as an attempt to defend the integrity of the AGs’ legal arguments and strategies.
The agreement covers information related to legal campaigns against Exxon—though the company is not mentioned by name—but also covers much broader "topics" such as "conducting investigations of potential illegal conduct to limit or delay the implementation and deployment of renewable energy technology."
It also includes not only the attorneys general and their staffs, but also "certain outside advisors," who are not specified. Schneiderman and his team have been collaborating with environmentalist groups on their Exxon campaign for over a year.
E&E attorney Chaim Mandelbaum pointed to that provision as evidence that the agreement shields records from public view that are not, and cannot be, directly related to the AGs’ legal strategies.
"The AGs may investigate, but how can outside groups like the Union of Concerned Scientists have a role in that or ensuing litigation? They can't," Mandelbaum said in an email. "These outside groups also don't share a similar interest with the states."
The agreement’s broadness, and the fact that there is no ongoing litigation in the Exxon case, makes it impermissibly broad, according Mandelbaum. "There is no clear scope to this agreement."
Common interest agreements are common when different parties are collaborating on a legal action. But they require that litigation be ongoing or imminent. Neither is the case here, E&E says.
"A common interest agreement covers a case or set of related cases, where parties can be lined up on the same side," Mandelbaum explained. "Here, however, the NY AG's draft shows they put broad topic areas under the agreement, so they could discuss anything related to those areas without having to make them public. These areas are as much political topics are legal ones."