GAO Files Lawsuit against Michigan Attorney General Nessel Over Records Involving Secrecy Pacts, Relationships With Outside Activists & Tort Bar Recruiting AGs
AG caught unlawfully using fees as barrier to access public records; tripled demand after coordinating with other AG offices under ‘Get Out of FOIA Free’ pacts; suit asks for sanctions
LANSING, MI, May 28, 2020 – Yesterday, on behalf of the transparency group Energy Policy Advocates (“EPA”), the public interest law firm Government Accountability & Oversight, P.C. (“GAO”) filed suit over Michigan Attorney General Dana Nessel’s refusal – in coordination with other state attorneys general offices – to release records about her office’s work with outside activists, the tort bar, and ideologically aligned state AGs to advance a shared political agenda.
The suit addresses the Department of the Attorney General’s (“DAG”) dealings with tort lawyers, green groups and former senior Obama administration officials on matters including a coordinated effort with AGs to file suit to impose the “Green New Deal” through the courts; investigate and sue energy companies over “climate change”; and block pipeline construction.
The Freedom of Information Act suit also seeks withheld information involving bills from an outside consultant brought on as a “Special Assistant Attorney General”, who became liaison to the AG’s Office for all such parties as well as Michael Bloomberg’s AG operation.
Key among the withheld information are numerous purported “common interest agreements” by which AGs hope to withhold production of otherwise public records unless all parties consented to their release — exempt or privileged records need no such agreement to be withheld and no such agreement can create an exemption or a privilege. As such, these pacts are troubling.
The story of what EPA had discovered, before the AGs’ coordinated effort slammed the door shut on further compliance with public records laws, was first covered in February by the Washington Times. Since then, AGs’ panic over further exposure has gotten so great that DAG has even begun withholding in full emails with outside advocates that it had already released.
DAG’s newly inspired clampdown on records, claiming privilege, extends to correspondence with certain members of the “climate” tort bar, a particularly egregious decision not only because DAG claims it has no agreement with the firm. Remarkably, DAG is even now withholding as privileged its emails with these outside advocates that it had previously released.
Matthew Hardin, Energy Policy Advocates’ counsel in public records suits in Vermont, Washington State, Maryland, and the District of Columbia, said “The majority of the public record requests covered by today’s Freedom of Information suit were met with either total denials of access or significant redactions, some of which EPA has already proved were improper. Despite previous judicial findings that a secrecy pact similar to those we found DAG has entered was not a valid common interest agreement, and not privileged, AGs have lately decided to hide records in the name of such agreements, and even the agreements themselves, forcing public record requesters to litigate if they get too close to certain information.”
Another troubling aspect of these deals emerged when, after coordinating with other AG offices with which it had entered these pacts, DAG demanded a fee for several months worth of such agreements that was three times what it first demanded to process an entire year’s worth.
DAG not only maintains that these records — which are merely purported contracts entered into on behalf of the state — shield certain public records from disclosure, but are themselves beyond public scrutiny. This refusal is particularly remarkable in that the agreements have all been shared with other states, and perhaps even private parties.
Public records obtained by EPA show that the deals involve assisting the “climate nuisance” tort bar, and have recently been invoked to hide coordination with former senior Obama administration appointees and career Environmental Protection Agency employees to use the courts to revive and impose a shared, failed policy agenda. DAG is thus hiding from Michigan taxpayers what it freely gives its political allies.
Hardin added, “The behavior of DAG and its allies raises serious questions of propriety, generally and about these arrangements. Michigan’s refusal to comply with clear mandates of the FOIA certainly demonstrates the need to bring these matters into public view.”
GAO attorney Neal Cornett filed suit with local counsel Zach Larsen of Clark Hill PLC.
Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement