For Immediate Release:
August 4, 2016
State AG ‘Secrecy Pact’ Aimed at Thwarting Transparency Laws Released;
E&E Legal Obtains Document From DC Following Litigation
Washington D.C. -The Energy & Environment Legal Institute (E&E Legal) has obtained a copy of the purported “Common Interest Agreement” led by New York’s Attorney General Eric Schneiderman and signed back in late April/early May by 17 state and territorial attorneys general. The agreement, however, runs counter to what a traditional Common Interest Agreement may cover. It was clearly drafted to obstruct open-records requests, while these AGs carried out a political campaign against their critics. Worse, the AGs have been working hard to keep the agreement itself a secret.
“It’s baffling that these AGs feel they can trample on their own states’ public records laws,” said David W. Schnare, E&E Legal General Counsel. “If they truly believe that they are engaged in anything other than a purely political campaign, they should have no problem explaining to the public what they are doing and subjecting their activities to the scrutiny their legislatures demanded.”
E&E Legal obtained the purported Common Interest Agreement after months of making Freedom of Information Act requests. The Competitive Enterprise Institute, which was targeted by the AGs’ campaign, also made direct requests. Finally, during E&E Legal’s litigation with the District of Columbia, the document was handed over. The time and effort it took to obtain the document; the arguments made to defeat efforts to obtain it; and the AGs’ reluctance even to acknowledge the existence of such an agreement, all raise more questions about what these AGs are hiding.
Signers of the Common Interest Agreement include: California, Connecticut, District of Columbia, Washington State, Massachusetts, Illinois, Maryland, Maine, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Virginia, US Virgin Islands, and Vermont.
Key Information about the Common Interest Agreement.
A Common Interest Agreement requires that there be 1) litigation, or the reasonable anticipation of litigation, 2) that the parties share a similar interest, and that 3) there be a clearly defined scope to the agreement. Here the AGs from many different states, apparently working with outside interest groups, came together to claim privilege for documents without the required shared reasonable anticipation of litigation, but in anticipation of open records requests.
While an AG may undertake an investigation, there is no evidence that most of these AGs have done so. In fact, the majority of the signatory AGs have disclaimed any investigation. Moreover, outside groups like the Union of Concerned Scientists and green-group lawyers with whom E&E Legal revealed are consulting with the AGs have no official role in a state-led investigation and therefore don’t share what would be considered a similar interest with the states. In other words, these are activists groups with a single focus and no interest in the collateral damage they do. The states are supposed to care very much about that. Yet it seems the AGs are seeking to keep their communications with such parties hidden from the public through the purported Common Interest Agreement.
Noted E&E Senior Legal Fellow Chris Horner, “This is far less a proper common interest agreement than a sweeping cloak of secrecy, one this ‘informal coalition’ is trying to cast over all discussions of their use of law enforcement to impose the ‘climate’ agenda. Including with outside activists and even donors.”
He added, “It was drafted not in anticipation of any particular litigation but in obvious anticipation of open records requests. We have already revealed they’ve colluded on this use of their law enforcement powers to wage a political campaign with political activist groups and activist lawyers. This is wrong and in the end will be fully exposed. Perhaps that is why so many of the AGs have already walked away from this abusive campaign. It’s certainly why they are trying to keep it all secret.”
Common Interest Agreement is Overly Broad.
Common interest agreements must be tailored to specific legal actions, which the AGs’ agreement doesn’t do. It is overly broad and covers discussions related to numerous topics, including defending federal programs to “limit greenhouse gases,” or actions to prevent any delays to the implementation of renewable energy technologies, among other sweeping subject areas. This goes against common interest doctrine, as well as open records laws, which state legislators passed to keep AGs accountable.
The AGs’ agreement appears to be more of an effort to obtain a “Get Out of FOIA Free card,” rather than a suit or any discrete or formal project.
AGs Claim Privilege for Sharing Investigation Information with Select Outside Parties.
The agreement allows the AGs to share information with any outside party if agreed upon in advance by all signers. Given the extent that environmental activist organizations have helped orchestrate this campaign, E&E Legal has filed numerous public records requests seeking all records from the AGs’ offices suggesting, consenting, or objecting to the inclusion of any outside party in this cabal of abusive law enforcement offices. It is also seeking any information relating to the investigations that was shared with outside groups.
From the Beginning, AGs Were Concerned About Schneiderman Rhetoric; Months Later, the AGs No Longer Appear Interested.
Even from the beginning, particularly during the press conference in March with Al Gore, many AG offices raised concerns about investigations, as revealed in several open records productions obtained by E&E Legal. Now, months later, most of the AGs appear to have backed away from any interest in using racketeering laws against political opponents of their climate agenda. As a result, E&E Legal is seeking all withdrawals from the pact as provided for in the agreement. If an AG’s office has not withdrawn, it should explain why.
AGs’ Reasons for Keeping the Common Interest Agreement Away From The Public.
Prior to obtaining this document through litigation with the District of Columbia’s Attorney General, E&E Legal encountered a series of seemingly panicked and even unlawful excuses from the AGs’ offices to keep the public from seeing a purported deal.
For example, the Rhode Island Office of Attorney General claimed that attachments aren’t part of an email chain and therefore they didn’t have to disclose the agreement.
Perhaps the most absurd excuse came from Iowa’s Attorney General, who claimed that despite declining to become a party to the agreement, it was still covered by the common interest privilege. They also claimed that despite neither writing nor editing the agreement, that it was their attorney work product, so they didn’t have to hand it over.
“Attorneys general are supposed to be the ultimate guardians of the law in their states,” said Craig Richardson, E&E Legal Executive Director. “Instead, these particular AG’s have abandoned this critical role and are actually secretly colluding to prosecute those who dare disagree with a political ‘climate change’ agenda pushed by their benefactors, making this action particularly egregious.”
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.