Massachusetts AG Answering Questions…Sort of

The docket in Energy Policy Advocates v. Healey (II) shows that MA OAG has at long last answered court-ordered interrogatories about its withholdings of records reflecting work behind its launching of activist climate litigation (for more background see here).

Maura Healey left office in January 2023, so the case style does reflect that, unfortunately, MA OAG is not cured of its practice of delaying matters, which became in issue with the court in EPA v. Healey I.

These answers are light and in GAO’s estimation not well supported. They assert among other things that the OAG is not releasing information—including email between the Office and a local law professor (subsequently a Biden administration enviro aide)—because of various agreements not to talk about it.

GAO expects that the position that these agreements, whatever they may be, trump discovery in a civil action will be tested. This seems also to be true of whether OAG’s view that something is relevant or not, e.g., withheld attachments to emails, governs in court-ordered discovery.

The OAG’s answers promised a further production of withheld information, and a rescheduled hearing on the AGO’s general objection to Energy Policy Advocates’ inquiry whether OAG waived privilege by any of the selective disclosures which the privilege logs reveal occurred.

The production, such as it is, came in. OAG ultimately produced a dozen or so previously withheld emails between the AGO and some people with Mass.gov email addresses and the Michael Bloomberg-financed operation set up out of New York University to place “Special Assistant Attorneys General” in progressive OAGs to advance Bloomberg’s (mostly “climate”) litigation and policy priorities. The actual emails were just “see update” or similar with a reference to an attached update, and OAG still is hiding the attachments themselves, claiming those are privileged or non-responsive.

The attachments the Office seems most skittish about releasing are updates from the Bloomberg operation on its efforts. Unfortunately for OAG, the Maryland AG’s Office released some of those a few years ago (see pp. 63-75 here), putting a bit off a lie to the privilege claim (those docs are interesting, not privileged, indicating the source of the skittishness).

Again, the claim of non-responsiveness is a bit absurd and indicative of OAG’s dilatory behavior which has already been an issue in this and a previous case: every request at issue here specifically requested emails and any attachments…

All of which should be briefed soon.

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