E&E Legal Letters XV: Records Show NY AG Keeps Some Very Convenient Company

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by Matthew Hardin, FME Counsel

In the New York County Supreme Court in lower Manhattan, E&E Legal and several citizens groups recently discovered something remarkable: the New York Attorney General’s Office had corresponded with the scheduler for Tom Steyer, a democratic political donor, and Lee Wasserman, of the Rockefeller Family Fund, immediately prior to launching an unprecedented campaign to prosecute ExxonMobil for alleged heresy on the issue of global warming. Rather than turn over these records in response to requests from E&E, however, NYOAG attempted to shield the records behind the alleged “law enforcement” privilege.

The law enforcement privilege allows the state to shield records it obtains in the course of a criminal investigation. The purpose for this privilege is obvious: it prevents criminals from using transparency laws to determine what the police know about criminal enterprises. No one wants the Gambino crime family, for example, to be able to use open records laws to seek law enforcement files which might identify informants keeping the police apprised of criminal activities.

In New York, however, the law enforcement privilege is not being used to protect a sensitive investigation, but to prevent the political embarrassment of the state’s chief law enforcement officer, the New York Attorney General. As the Attorney General admitted in his briefs, Exxon’s attorneys have long been aware that Exxon is under investigation for alleged crimes against the climate change consensus. The New York Attorney General has served Exxon with numerous subpoenas seeking information about the company’s finances, including donations to non-profit groups. The company has responded by filing suit in federal court, seeking an injunction preventing the New York Attorney General from using his law enforcement powers to violate Exxon’s constitutional rights. In short, disclosure of the records at issue would not result in any secrets being let out or any harm to an ongoing law enforcement investigation.

Not only would disclosure not result in harm, however, but the records at issue have already been disclosed, to politically connected donors like Tom Steyer and the Rockefeller family. In short, the New York Attorney General’s office took the remarkable position that millionaire political donors have more rights to see government records than E&E Legal and New York citizens do.

Without even taking a look at the records New York’s Attorney General admits to sharing with wealthy political donors, however, a New York judge ruled on May 16, 2016 that any argument that the records were generated as part of a political campaign rather than a law enforcement investigation was “speculative.” The judge specifically discounted the dozens of interviews the New York Attorney General has held with media outlets, and the Attorney General’s own political goals as outlined in a letter he sent to other Attorneys Genera throughout the country, and denied the petition of E&E Legal and several New York citizens to release the records publicly.

We will continue to fight for the public’s right to know what politicians are doing behind closed doors with wealthy donors. Our attorneys filed an appeal on May 30, 2017, and expect to present evidence to the New York Supreme Court’s Appellate Division this fall.