For Immediate Release:
July 6, 2016

Contact:
Craig Richardson
Richardson@eelegal.org
703-981-5553

New Documents Confirm: “Climate RICO” AGs Attempting to Write Themselves Out of Transparency Laws to Hide Abusive Campaign

Washington, DC – New responses from state Attorneys General offices (OAGs) obtained by the Energy & Environment Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic (FME Law) confirm that the coalition of Democratic Attorneys General using racketeering laws to investigate universities, climate scientists, free market think tanks and energy companies are hiding behind a contract with each other — also apparently with outside activists helping the campaign — to avoid releasing public records relating to their pursuit of political opponents.

This confirms suggestions in prior emails, obtained under state open records laws, that the AGs had entered what they are calling a Common Interest Agreement (CIA), with green activists and other AGs, and are using this contract of nondisclosure among themselves to keep public records regarding their RICO push from the public.

CIAs are common instruments, but what the AGs and green groups have attempted is not; nor is keeping the pact itself from the public normal.  To be legitimate, parties to a common interest agreement must have imminent litigation, a clear scope and clearly shared interests.  Instead, documents obtained to date show that these AGs and their green-group colleagues with inherently disparate interests have entered not a legitimate CIA, but a pact of secrecy, covering broad topics, not specific matters, simply to avoid scrutiny of otherwise public records relating to their extraordinarily controversial abuse of political opponents’ First Amendment rights.

“We have confirmed that the Democratic AGs are citing a Common Interest Agreement to avoid releasing crucial information to the public, as they continue their abuse of power”, said David W. Schnare, E&E Legal General Counsel. “The earlier draft we obtained showed the desire to exempt AGs’ correspondence, which are deemed public records by their legislatures, from open records laws if they related not just to defense of the Obama administration’s EPA rules, but to investigations and nearly anything else they might not want released involving “fossil fuels”, “renewable energy”, or “climate”.”  It appears these terms survived in a new agreement.

This pact of secrecy, written by New York’s Eric Schneiderman, promises to alert each party about, and force requesting parties to sue for satisfaction of, public (or media) records requests seeking information about this abuse of office in going after opponents of the “climate” agenda.

This revelation, and that these AGs think they can hide from the public even the names of outside activists with whom they have contracted a promise to stonewall FOIA requests, as well as the vow of secrecy itself, raises more questions about the scope and intentions behind the investigations.

“In short, these activist AGs are trying to write themselves out from freedom of information laws their legislatures have written them into,” said E&E Legal senior fellow Chris Horner.  Horner continued, “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.”

In March, E&E Legal obtained documents showing that NY Attorney General Schneiderman’s office circulated a CIA to a coalition of AGs participating in a press conference with Al Gore to announce their cooperation on a wide array of possible steps to protect the Obama administration’s “climate” agenda, from defending EPA rules to investigating “fossil fuel” companies. Staff from Vermont’s OAG raised concerns in an email, specifically their discomfort about contracting a default promise to make requesters of public records sue to obtain the information.

Vermont OAG clearly became more comfortable with this position after revelations of the first open records act release blew up in all their faces, now forcing E&E Legal to sue in an ongoing case to obtain further public records.

That first release also revealed a March 30, 2016 email from NY OAG indicating it would circulate a new agreement prior to their April 12 organizing call. Clearly it did so, and activist AGs signed on, possibly also with activist groups but regardless promising to keep their work with these “outside consultants” from the public and the media.

Late last week, in response to an E&E Legal appeal of withholding records relating to the Illinois Attorney General’s Office involvement in the RICO push, that office told E&E Legal that it was withholding the disclosure of certain records because “a common interest agreement (Agreement) was entered into by the Office of the Illinois Attorney General and the other affected stakeholders related to a number of the withheld records. Under the terms of that Agreement, particular categories of documents are to remain confidential.”

In an earlier email, Rhode Island OAG Special Assistant Attorney General Gregory Schultz emailed his agreement to sign an April 12, 2016 CIA, though by that time no office had yet acknowledged the existence of such a pact.  Indeed, the New York, Vermont and California OAGs denied public records requests by the Competitive Enterprise Institute (CEI) for any such contracts to secrecy. Thus, the states have decided that they can not only write a contract making public records invisible to the citizenry, but prevent citizens from even taking a look at the contract itself.

Yesterday, Rhode Island offered further, facially absurd reasons for not providing the agreement itself, a wholly separate issue and even more facially abusive than claiming records are exempt from FOIA laws because one OAG promised another, and some green-group activists, that it wouldn’t release them.

What are these crusading AGs afraid of the public learning about their investigations?  Why are they invoking absurd claims to try and withhold documents — and writing themselves a blank check to self-exempt from the FOIA laws their legislators apparently thought those with the authority to exercise police powers had better be subject to?  Why are they making parties sue to obtain these public records, which even Vermont’s OAG acknowledged was improper?

The obvious answer to all of this is that they are afraid of the embarrassment they will suffer once people see what they hastily agreed to, which also subjects these offices to potential civil rights lawsuits and other countersuits by those they’ve targeted.

“E&E Legal expects to do whatever is necessary to get these public records before the public, to educate on this unprecedented abuse of power”, said E&E Legal’s Executive Director Craig Richardson. “All that we have found indicates that these AGs and their outside activist partners will make litigation necessary at every turn.”

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

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