by Matthew Hardin, FME Counsel
When Attorneys General from seventeen states banded together in a political crusade to “investigate” and threaten to prosecute those who disagree with their climate change agenda, E&E Legal decided to pull back the curtains to expose what the states were really looking for, and what might have spurred these investigations, which trample the First Amendment rights of dissenting scientists and policy researchers. We submitted requests under various transparency laws in dozens of states, seeking correspondence between those involved, as well as certain activist groups like the Democratic Attorneys General Association. E&E is aggressively advancing its campaign to force transparency and accountability, which will likely continue through the winter.
Not surprisingly, several states denied our requests for correspondence relating to their scheme. Citing attorney-client privilege or the similar attorney work-product doctrine, Iowa, New York, Vermont, and Virginia all denied E&E Legal access to public records they shared with each other. While it is doubtful that their political undertaking to investigate dissent is a legitimate use of law enforcement resources, it is only the tip of the illegality of these states’ cavalier actions. Because each state has its own, unique constitution, a state attorney general may only act on matters pertaining to his own state. Thus, each state’s attorney general cannot represent another state’s attorney general, and such correspondence is not protected by attorney-client privilege or related doctrines. Appallingly, states across the country are essentially breaking their own transparency and open records laws, laws which Attorneys General are sworn to protect and enforce.
To expose the tyrannical efforts of Democratic Attorneys General to use the criminal justice system to prosecute political opponents, and in the face of massive stonewalling and improper denials of E&E Legal’s open records requests, E&E Legal has been forced to turn to the courts. We currently have suits pending in New York, Rhode Island, and Vermont. More lawsuits will undoubtedly follow in other states that continue to hide public records that E&E Legal and the general public are entitled to.
E&E Legal’s first of three current suits in New York was recently heard by Justice Arlene Bluth of the New York Supreme Court. At a hearing on November 29th, Justice Bluth heard arguments relating to New York Attorney General Eric Schneiderman’s use of private email accounts, which the office refuses to search for documents responsive to E&E Legal’s request. More revealingly, the Court was presented with evidence that employees of the New York Attorney General’s office may have communicated with Schneiderman through private email accounts belonging to members of his staff and campaign aides instead of his two work email accounts. E&E Legal expects the New York Supreme Court to rule on the first of three pending lawsuits in the near future, and will continue fighting for records in the other two lawsuits against New York in the upcoming months. We will not rest until the New York Attorney General’s Office provides a full accounting of its activities to the taxpayers.
In addition, E&E Legal currently has two cases pending in Vermont as a result of Attorney General Bill Sorrell’s refusal to produce records evidencing his participation in the “climate denier” targeting scheme. Specifically, E&E Legal requested records shared between the New York Attorney General and the Vermont Attorney General’s Office. After Vermont refused to even begin processing our initial request without first seeking fees substantially higher than permitted under state law, we were forced to sue in Washington County Superior Court. E&E Legal prevailed in an initial hearing on September 15th, at which the Court ruled that Sorrell had failed to comply with the Vermont Public Records Act, and subsequently ordered the Vermont Attorney General to produce the requested records. Later that day, E&E Legal filed a second suit against the Vermont Attorney General for wrongfully withholding records sought in another request filed by E&E Legal. Thus, Bill Sorrell has made it abundantly clear that he will not comply with his own state open records laws unless forced to do so by E&E Legal and the courts. E&E Legal is currently engaged in motions in both pending suits in Vermont, and expects a court ruling by January. Just like we are in New York, E&E Legal will continue the fight to hold the politically-motivated Vermont Attorney General accountable so that the American people can see the extent of this scandal for themselves.
A rare example of an Attorney General’s office involved with the climate coalition complying with its state’s transparency laws was recently showcased in Virginia. Although Virginia Attorney General Mark Herring initially denied E&E Legal’s two requests for information under Virginia law in part, he quickly backtracked after we filed suit in the Circuit Court for the City of Richmond, almost immediately providing all the records his office previously withheld, in full and unredacted form. E&E Legal is encouraged by the Virginia’s cooperation, and hopes that other state Attorneys General will follow its example.
While politicians seeking to abuse their power to silence free speech prefer to keep their activities hidden from the American people, E&E Legal will not back down. Our attorneys will travel the country for the next several months to urge courts to enforce the very state laws that state officials themselves are refusing to enforce or abide by. And we will previal.