Judge Matthew Budzik heard arguments between Energy Policy Advocates (EPA), the Attorney General’s Office and the Freedom of Information Commission (FOIC) yesterday in New Britain Superior Court over the FOIC’s rare reversal in requiring the AG’s Office disclose a “handful” of documents related to climate change litigation and communications with outside parties.

At issue are documents and emails related to Attorney General William Tong’s pursuit of litigation against Exxon Mobil and the use of assistant attorneys general funded by billionaire Michael Bloomberg through the State Energy & Environmental Impact Center at the New York University School of Law throughout the country for the sole purpose of pursuing climate litigation.

Energy Policy Advocates, represented by attorney Matthew Hardin, and the New Civil Liberties Alliance (NCLA), represented by Margaret Little, had requested emails and common interest agreements between the AG’s office and outside parties. Common interest agreements are agreements with outside parties to work on litigation together – in this case, numerous lawsuits filed by AGs across the country against major oil producers over their impact on climate change.

While Connecticut’s AG’s office released 178 pages of documents pertinent to EPA’s request, they withheld roughly 34 pages of communications. EPA took the matter to the FOIC and following a private review of the redacted documents, the FOIC hearing officer recommended they be released, and the commission voted to uphold that finding.

Shortly thereafter, however, the commission changed its mind, remanded the matter to an ombudsman and then determined that the documents were related to pending litigation and therefore were not applicable under Connecticut’s freedom of information laws.

EPA argues that the use of privately funded attorneys general by states is not in the public’s best interest, regardless of what they are being paid to do. Hardin often draws a comparison, saying the public, particularly in Connecticut, might be alarmed if perhaps the National Rifle Association were funding AAGs to push back against gun laws.

In court, Hardin argued that the FOIC’s reversal was “arbitrary and capricious” and is protecting emails and other documents sent to parties outside the state – not only other attorneys general but also private attorneys like Matthew Pawa who has pushed AG Offices to pursue litigation against oil producers. They also argued that FOIC had gone against their own procedures in the way they issued the reversal.

The FOIC, like other Connecticut state agencies, is allowed to change its mind within a specific time frame, but Hardin argued the commission’s methods in this case were “extraordinary and irregular.”

The AG’s Office and attorneys for the FOIC argued that they were within their rights to change course and allowed the EPA to make its case to the commission before issuing their second decision. 

While the FOIC determined the documents were not subject to disclosure because they were related to pending litigation, the AG’s Office also argued they constituted work product, attorney-client privilege and common-interest as well, all of which would be similarly exempt from disclosure.

AAG Daniel Salton argued that if the documents even appear “facially” as related to pending litigation or attorney client privilege they are exempt from disclosure, while Hardin argued that making such a facial determination is “an incredibly high burden.”

Hardin also argued FOIC’s second decision was not properly made, but FOIC’s attorneys said such claims lack merit – “There’s nothing to it,” said attorney Mary Kate Smith.

The EPA has been pursuing similar documents in states across the country with limited success, but essentially arguing that climate litigation pursued by state Attorneys General is being paid for, in part, by outside parties – more of a political and policy strategy and goals than one related to enforcement of state laws.

Tong filed Connecticut’s lawsuit against Exxon in 2020 alleging the company knew the dangers of climate change but intentionally misled the public in order to continue pushing oil. It was one of numerous similar lawsuits that have been filed by other states, several of which, including Connecticut’s, were filed with the assistance of the Bloomberg-funded attorneys.

Following a loss at the U.S. Supreme Court over similar allegations in 2011, states have taken a different tact, filing the suits under state consumer protection laws and, thus far, a number of those states have been successful in getting the cases out of federal court and into state court, where AG’s feel they have a better chance for success.

Massachusetts and Rhode Island have both successfully had their cases placed in state court and SCOTUS recently declined to take up Suncor v. Boulder, keeping the lawsuit in state court. Tong saw the decision as good news for Connecticut’s lawsuit: “The law is clear – these cases belong in state court,” Tong said in a press release.

“We’re saying show us the agreement you made with people outside of Connecticut to keep Connecticut records secret and they won’t even show us the agreement so that we can argue whether that agreement is valid or not, much less the emails with people outside the state of Connecticut,” Hardin said in a previous interview with Connecticut Inside Investigator. “Connecticut’s attorney general is emailing all sorts of people outside the state, outside the attorney client relationship, and trying to hide that under Connecticut law. That doesn’t make sense to me.”

Judge Budzik, who disclosed that he previously worked as a Connecticut AAG, has reviewed the contested documents and said he will issue a decision in the coming weeks.

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