A Connecticut Superior Court judge sided with the Attorney General’s Office and the Freedom of Information Commission (FOIC) over their decision to withhold documents related to Connecticut’s lawsuit against ExxonMobil requested via a Freedom of Information (FOI) request.
The FOIC had originally voted to require the release of the documents which included emails, common interest agreements – agreements between the AG’s office and outside parties to work together on litigation – and the use of privately-funded assistant attorneys general paid for by billionaire Michael Bloomberg through the State Energy & Environmental Impact Center at New York University School of Law.
However, the FOIC then reversed course and denied access to roughly 34 pages that had previously been approved for release, saying the documents were related to pending litigation and therefore not covered under Connecticut’s freedom of information laws.
More than 170 pages of Exxon lawsuit documents were released to Energy Policy Advocates (EPA), an organization that has been filing FOI requests in multiple states related to those states’ participation in lawsuits against major oil companies for allegedly withholding information related to their product’s effect on climate change. Those states, including Connecticut, are suing for climate-related damages under consumer protection laws.
The New Civil Liberties Alliance, a nonprofit civil rights foundation that focuses on the “Administrative State,” was also party to the lawsuit. Both argued that communications between the Attorney General’s Office and outside parties, including non-government attorneys, should not be withheld from the public and took the matter to court.
EPA argued these common interest agreements and documents have more to do with policy and political goals than litigation and that the FOIC’s reversal was “arbitrary and capricious.” The judge disagreed after viewing the documents privately.
“Because the court concludes that there is substantial evidence in the record supporting the commission’s determination that the redacted portions of the subject records are records of strategy with respect to pending litigation, the court dismisses this appeal,” Superior Court Judge J. Budzik wrote in his decision. “Generally, each of the records directly related to OAG’s consideration of how to enforce Connecticut’s environmental laws.”
Connecticut Attorney General William Tong announced the state’s lawsuit against Exxon in 2020. Although the case was filed in Connecticut Superior Court, it was then transferred to federal court.
Connecticut has successfully argued the case be remanded back to state court, as has happened in other states including Massachusetts and Rhode Island, where attorneys general feel they’ll have a better shot at success. Oil companies had argued to keep the matter in federal court where they have a history of success, including a 2011 decision by the U.S. Supreme Court.
According to Connecticut’s complaint, Exxon had conducted research affirming that fossil fuels contributed to climate change and had the responsibility to inform the public.
“ExxonMobil instead began a systematic campaign of deception to undermine public acceptance of scientific facts and methods relied upon by climate scientists who knew that anthropogenic (human-caused) climate change was real and dangerous to humanity,” Assistant Attorney General Matthew Levine wrote. “ExxonMobil executed this unfair and deceptive campaign in order to maximize profits by selling more oil and gasoline than consumers would have purchased had the reality of climate change been disclosed.”
In their court filings, Exxon argues that Tong is attempting to suppress speech in an attempt to influence energy and climate policy, issues that fall under the federal government’s purview.
“While purportedly brought under state law and in the name of consumer protection, this lawsuit by the State of Connecticut, acting through its attorney general, is the latest product of a multi-year plan developed by plaintiff’s attorneys, climate activists, and special interests designed to suppress political speech on matters of national public importance and to substitute, through litigation, the judgement of certain state attorneys general for that of the duly elected political branches of government,” Exxon wrote in their response to Connecticut’s complaint.
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