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Secrecy Pact: the FOI Commission, climate litigation, and hidden documents

On May 25, 2022, the Connecticut Freedom of Information Commission (FOIC) did something fairly unusual: it changed its mind, reversing a unanimous decision made by the commission in January which had required the Connecticut Office of the Attorney General to turn over un-redacted documents related to the pursuit of climate litigation, likely involving Attorney General William Tong’s lawsuit against ExxonMobil.

The reversal was made sua sponte, a legal term meaning of one’s own accord, or voluntarily. The January decision involved two separate requests the commission had consolidated into one for the purpose of argument and discussion. In the reversal, the FOIC exercised its established power to voluntarily vacate or reconsider within 40 days. But the complete and unanimous reversal, with little explanation from the commission other than saying they reviewed the case and arguments, left the complainants baffled.

The FOI request was made by Energy Policy Advocates (EPA), a non-profit group with a dedicated mission “to bring transparency to the realm of energy and environmental policy.” EPA has filed FOI requests in 38 states, often accompanied by lawsuits, some of which have ended up in state supreme courts, with various outcomes. 

Environmental groups say EPA is merely a front for the fossil fuel industry, seeking to fight back against the mobilization of state attorneys general across the country, who are filing climate-change-related lawsuits against energy companies, similar to the settlements reached by states like Connecticut against the tobacco companies in 1998, for which the state received $471 million.

In Connecticut, EPA is also joined by the New Civil Liberties Alliance (NCLA), another non-profit that focuses on abuses by the administrative state, and was founded by Philip Hamburger, a professor and constitutional scholar at Columbia’s School of Law.

At issue are common interest agreements and email correspondence between the Attorney General’s Office and parties outside the state of Connecticut. The common interest agreements are essentially agreements made between states’ attorneys general agreeing to work together on litigation and outlining the scope of the work. Under a common interest agreement, the AG’s communications with those parties outside the state become privileged communications and protected from disclosure.

The CT AGs office denied their request for copies of the common interest agreements and provided roughly 178 pages of emailed correspondence but also 34 pages of redacted communications. EPA wanted the redactions removed and wanted copies of the common interest agreements the AG’s office had withheld. 

In both instances, the FOIC hearing officer reviewed the requested documents in camera – meaning privately – and determined that neither were protected or privileged information because at the time of request there was no pending claim or litigation, and the AGs office “failed to prove that any of the records were exempt from disclosure pursuant to the attorney-client privilege as it pertains to a common legal interest among parties.”

Matthew Hardin, an attorney for EPA, says he believes these common interest agreements signed by Connecticut with multiple other states are not valid because they relate to shared political and policy goals, rather than specific litigation.

“We don’t think they’re valid agreements because they aren’t really anticipating specific litigation, they just sort of had shared goals, they wanted certain political outcomes, we don’t think these agreements are in any way legally recognized,” Hardin said. “When Connecticut signs an agreement it’s basically a secrecy pact, and I’m not saying secrecy pacts are always illegal but they’re often illegal and I’d like to know how this one is written, so we requested the agreement.”

“If you show us the agreements and they say specifically we’re only going to talk about this particular case filed in this particular court then that would be one thing,” Hardin said. “But I don’t think that’s what they say, and I think that’s why they’re fighting so hard to keep these secret.”

EPA has now filed suit in Connecticut Superior Court against the FOI Commission and the Attorney General’s Office seeking to overturn the FOIC’s reversal on the grounds that it was “illegal, arbitrary, and capricious” because the reversal was inconsistent with the previous decision with little to no explanation for the change.

“The decision of the Commission was improper and illegal in that it abused its discretion and based its decision upon the flimsiest of explanations, entirely reversing its previous course of action and an initial Hearing Officer’s report with no explanation, rather than basing its decision on the overwhelming evidence presented by the appellant or on the respondent’s failure to carry its burden of proof,” the court complaint says.

EPA’s lawsuit sets up a court case with expansive implications involving the litigation of several states against some of the world’s largest corporations and aided by various privately funded activist groups on both sides of the argument.

In September of 2020, Connecticut Attorney General Tong filed a lawsuit in State Superior Court against ExxonMobil.

The suit alleges Exxon misled consumers about the threat of climate change caused by fossil fuels and engaged in a decades-long “systematic campaign of deception to undermine public acceptance of the scientific facts and methods relied upon by climate scientists who knew that anthropogenic (human-caused) climate change was real and dangerous to humanity.”

The suit alleges that the one degree Celsius increase in average global air temperatures has contributed or will contribute to negative impacts on Connecticut residents, businesses, natural resources, wildlife and critical ecosystems, and has caused or will cause drought, flooding, severe storms, illness, infectious disease, death and damage to existing infrastructure.

The total damages requested by the AG’s office are unknown and would have to be determined by a court, but Tong did request $5,000 “for each and every willful violation of the Connecticut Unfair Trade Practices Act.”

Connecticut was not the first or only state to initiate a lawsuit against Exxon and other oil companies. Rhode Island and New York filed similar suits in 2018, Massachusetts in 2019 and Minnesota, Washington D.C., Delaware and Connecticut in 2020, according to the State Energy & Environmental Impact Center at the New York University School of Law. New Jersey recently joined the fray as well on October 18 of this year, suing Exxon and Chevron.

The lawsuits all have a few things in common aside from their targets: namely, they were all brought in state court and alleged violations of consumer protection laws or deceptive practices. New York’s lawsuit, which alleged Exxon had deceived investors on the risks climate change posed to their company, was quickly shot down.

The others, most notably Rhode Island whose AG is probably furthest along in the action, have all continued along a similar pattern: the state files in state court, the oil companies file to have the case heard in federal court and the state attempts to force the case back into state court where they feel they have a better chance at winning.

That’s because this is not the first time that Connecticut and some of those other states have embarked on legal proceedings to seek financial restitution for climate change from energy companies. 

In 2004, Connecticut filed suit against American Electric Power Company and several others in federal court alleging the companies’ contribution to climate change created a public nuisance causing injury to persons and property.

The lawsuit eventually made its way to the U.S. Supreme Court in 2011 where it was dismissed in a unanimous 8-0 decision, with one Justice abstaining. The opinion was issued by Justice Ruth Ginsberg who wrote that, essentially, that judges could not determine what constitutes a reasonable amount of carbon-dioxide emissions and that it should be left to Congress and the Environmental Protection Agency.

This time around, state officials are trying a different strategy. Having obtained documents that allegedly show Exxon and other oil companies sought to deceive the public regarding climate change, they file suit based on state consumer protection laws and push for the cases to be heard in state court where they may have a better chance at victory.  

And this is precisely where Connecticut’s case stands now: waiting to find out whether it will be heard in federal or state court. Rhode Island and Massachusetts have successfully had their cases moved back to state court, although the oil companies are fighting those decisions.

There was something else the State of Connecticut and several other states embarking on these lawsuits have in common: special assistant attorneys general supplied by billionaire Michael Bloomberg through the State Environmental Energy & Impact Center at NYU.

Bloomberg created the Impact Center in 2017 with $6.1 million donated by his philanthropic organization Bloomberg Philanthropies. The Impact Center created a fellowship program that supplies state attorney generals with a fully-paid-for special assistant attorney general to work on environmental litigation.

Connecticut applied for a SAAG in 2019 and ended up with two of them. One was Benjamin Cheney, a graduate of the University of Connecticut School of Law, who was listed as a special assistant attorneys general in Tong’s filing against Exxon in 2020. Cheney has since been hired by the State of Connecticut and is no longer a fellow.

SAAGs were also supplied by the Impact Center to Massachusetts, Delaware, Minnesota, New York and Washington D.C. among others. SAAGs are listed on the lawsuits by New York, Minnesota, Washington D.C. and Delaware.

Margaret Little, senior counsel for NCLA says there exists a potential lawsuit over the use of privately funded SAAGs, noting “you cannot have outside monies coming into an arm of government that has not gone through the treasury and been allocated to that agency through an appropriation.”

“The problem is that if somebody you agree with can do this, somebody you disagree with can too,” Hardin said. “If Mike Bloomberg can buy himself AAGs so can other groups. If the NRA did it, I think a lot of people would change their minds. I think that shows the underlying problem: it’s not about who’s doing it it’s about the underlying principle of the government is supposed to work for us.”

But with the dissemination of privately funded SAAGs and very similar litigation coming from different states, it’s not difficult to understand how some groups like EPA might see a coordinated effort by state attorneys general that may or may not be within the letter of the law regarding common interest agreements. With their battle to access the Connecticut Attorney General’s communications, they’re seeking to understand the extent of the coordination.

“You can have policy goals, that’s what politics is about,” Hardin said. “But when you have politics as opposed to litigation, that’s what the open records laws are all about, to show how political discussions take place.”

“I think that if these common interest agreements just said, ‘we’re going to talk about this particular case in the U.S. District Court,’ that would not be something the state would hide,” Hardin said. “Because, in fact, everybody knows that; you can just go to the district court’s docket and look it up.”

Energy Policy Advocates have already been successful in obtaining some common interest agreements in other states that include Connecticut, most recently from Vermont, where they currently have a case before the State Supreme Court seeking email communications, similar to their request in Connecticut.

But Hardin believes Connecticut has many more common interest agreements related to energy policy and litigation, necessitating the FOI request and subsequent lawsuit following the FOIC’s sua sponte reversal.

According to the court complaint and transcript of the hearing, the FOI commission admitted that not all members had viewed the documents in question before reaching their new conclusion; furthermore, one commissioner “affirmatively denied that the Commission was reconsidering its own previous decision at all and indicated that the Commission was merely disapproving the decision of a Hearing Officer,” according to the court complaint.

According to the meeting minutes from the January 26, 2022 hearing, the FOIC adopted the hearing officer’s report, and “voted to stay the enforcement of the orders until the respondents perfect an appeal within the time allowable under law.”

But there was no appeal. Instead, the FOIC “unanimously voted to reconsider their final decisions,” according to the meeting minutes from March 9, and direct their staff to reconsider the legal arguments and issues in light of another FOI complaint made by EPA against the AG’s Office. In that case, the Commission decided to remand the matter to staff “for further consideration of legal argument presented regarding the attorney work product doctrine, and the common legal interest privilege,” according to minutes.

In essence, the commission indicated that it wanted to be consistent in handling the cases, not ruling that such documents could be disclosed in one case but not in another when there were many similarities, according to video from the March 9 meeting.

“These are the recommendations from staff after reviewing the records, not conducting additional proceedings, simply reviewing the records, reviewing all the legal arguments, and putting this back before you again, yes, in this new format or with new outcome,” said FOIC Executive Director and General Counsel Colleen Murphy during the May 25 hearing overturning the previous decision. “I appreciate that it’s a complete change, but upon review and following the direction of the Commission these are the staff recommendations.”

Commissioner Christopher P. Hankins said he examined the documents “and they do fit well within the pending litigation exemption.” FOIC Chairman Owen P. Eagan agreed the documents were exempted. 

The hearing officer who authored the initial recommendations that the Commission order the release of the documents was not available as he had since left employment with the FOIC.

EPA filed their lawsuit against the Freedom of Information Commission and the Office of the Attorney General in July of 2022.

The FOIC quickly filed a motion to strike arguing EPA cannot combine two administrative appeals – namely the two FOI requests in question – into one appeal and that, if the motion to strike is upheld, EPA would have failed to properly file appeal within the legal time frame.

EPA is arguing, however, that because the two requests are so similar and because the FOI Commission voted to consolidate both cases during their hearings. They requested the motion to strike be denied or, at the very least, allow them to replead. 

“This is the first time anybody has argued these should be separate and the commission is sort of nominally in this lawsuit. It’s not their records at issue, so why the commission would seek to short circuit an appeal in the Superior Court is something we don’t understand at all,” Hardin said. “It’s just an odd situation and, also, I think its atypical for the commission to take aggressive postures in court like this. The AG has its attorneys, the AG is in court, if the AG wants to take an aggressive posture that’s one thing but the commission itself to try to short circuit an appeal, I think that says a lot.”

The Attorney General’s Office, however, did follow up, supporting the motion to strike and arguing EPA was “cherry picking” quotes to support bringing both requests under one appeal.

“The plaintiff engages in selective cherry-picking of the transcripts in an effort to demonstrate consolidation,” the AG’s office wrote in their legal filing. “Transcripts of both the hearing officer and the FOIC itself clarify that such was for the purpose of argument, and not consolidation of both cases into a single decision.”

EPA has moved to argue against the motion to strike in what may end up a long court battle that could potentially end up in higher courts, if EPA’s record in other states is any indication.

The FOI battle between EPA the FOIC and the Attorney General’s Office is just the latest in a multi-year effort by EPA to show the climate change litigation pursued against oil companies by state attorneys general is, in effect, being led by outside activist groups, private attorneys, billionaire foundations and politicians looking to punish oil producers.

The documents EPA obtains through FOI requests are published on Climate Litigation Watch, a project of Government Accountability and Oversight (GAO), a nonprofit of which Hardin is a board member. GAO’s website, much like Climate Litigation Watch, is largely dedicated combating climate change litigation through filing FOI requests and publishing their findings. 

According to the organization’s 990s, if GAO is being funded by the oil companies, they aren’t funded with much: GAO’s annual income has ranged from a high of $1.3 million in 2018 to a little over $570,000 in 2020. It’s not a lot to fund attorneys filing FOI requests and waging court battles in states across the country, which have access to hundreds of attorneys and essentially unlimited public funds.

The publication of EPA’s FOI requests and documents show records for Connecticut dating back to 2016, including Connecticut Assistant Attorney General and head of the Environment Department, Matthew Levine, signing off on a common interest agreement for the Climate Change Coalition of state Attorneys General two years before William Tong was elected Attorney General and Tong’s recruitment of Special Assistant Attorneys General from the Bloomberg-funded Impact Center for work on environmental litigation.

The AG’s office under former Attorney General George Jepsen was also involved in talks about Exxon with attorney Matthew Pawa, an influential Massachusetts-based attorney who litigates major environmental cases and gave a “What Exxon Knew – And What It Did Anyway” presentation to various state Attorneys General. Although Jepsen was not available for the presentation, Pawa sent it along to the AG’s office.

These also are not the first FOI requests EPA has made of the Connecticut Attorney General’s Office, rather, it’s the latest in a string of them, but it is the first involving a voluntary change of the FOIC’s decision and a court case over their document requests.

Obviously, a lot of money is on the line. Oil companies, like Tobacco companies, have deep pockets and states could see a revenue stream similar to the settlements states like Connecticut have seen with Tobacco companies and the pharmaceutical companies that marketed opioids. 

The common interest agreements and communications between parties that EPA seeks in Connecticut are part of a broader, nationwide legal and political battle where there’s a lot of gray area, associations and accusations between the groups on both sides of the argument and the legal matters at hand. 

The EPA believes acquiring and releasing these documents will show these lawsuits are really a matter of political vilification of energy companies at the hands of activist groups, university professors and, essentially, Democrat politicians – although that may prove unsurprising to most. Whether the politics can be parsed from legal issues in cases such as these might be a matter of splitting hairs. 

The states Attorneys General, on the other hand, likely see nothing but upside by riding a wave of worldwide sentiment against oil companies in the name of fighting climate change. A legal victory would also be seen as a political victory and, as much as the two are supposed to be distinct, politics and policy more and more converge in the court system.

The EPA feels confident their position of transparency is what is best for all parties involved. If there is no inappropriate collusion, there should be no problem sharing the information.

“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. That’s remarkable, too, because this is a law that’s supposed to protect Connecticut taxpayers,” Hardin said. “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.”

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Marc E. Fitch, Senior Investigative Reporter

Marc E. Fitch

Marc worked as an investigative reporter for Yankee Institute and was a 2014 Robert Novak Journalism Fellow. He previously worked in the field of mental health is the author of several books and novels, along with numerous freelance reporting jobs and publications. Marc has a Master of Fine Arts degree from Western Connecticut State University.

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