Longtime GAO readers may remember Energy Policy Advocates’s Inspection of Public Records Act (IPRA) suit against the New Mexico Office of the Attorney General (OAG), seeking records pertaining to that Office throwing its lot in with the Michael Bloomberg-financed scheme placing activists in AG offices to advance Bloomberg’s “climate” priorities.
At long last, the dreadful and dismissive move by the trial court of simply rejecting EPA’s claims on its way out the door to retirement—not even addressing that the group had already prevailed in getting numerous improperly withheld facts released (i.e., warranting its costs and fees)—has been overturned by the Court of Appeals, 3-0.
The Court reversed the grant of summary judgment in favor of the OAG, holding that its blanket assertion of attorney-client privilege and work-product immunity was insufficient to justify the withholding and redacting of responsive documents in part and in whole.
In particular, the Court found that the OAG did not provide enough specific information to support its claimed exemptions, and that a good-faith assertion of privilege was not enough to establish a prima facie case for summary judgment without more detailed evidence, such as privilege logs or affidavits. The Court emphasized that the OAG must provide sufficient evidence for the trial court to evaluate whether each document or redaction is truly protected by privilege. It didn’t.
The case was remanded for further proceedings, with instructions for the district court to require the OAG to provide more detailed justifications for each redaction or withheld document, or to conduct an in camera review of the redacted or withheld documents. The Court left it to the discretion of the district court in deciding whether to entertain another motion for summary judgment from the OAG (now the New Mexico Department of Justice), supported by affidavits and privilege logs, or to simply review the subject documents itself.
Given the foot-dragging this Office demonstrated…can’t believe we are writing this…over the years, that’s one to watch. Already, it now seems, such behavior is going to cost the taxpayer a bit in unnecessary legal fees paid out to EPA for fighting OAG’s disregard for the law.
In addition, the Court considered EPA’s claim on appeal that the district court failed to consider the group’s motion for partial summary judgment on the issue of waiver of attorney-client privilege. The Court found that the district court had not sufficiently addressed whether the sharing of information under the common interest agreements constituted a waiver of privilege.
In short, the Court of Appeals issued an unambiguous reversal of one of the more egregious failures of transparency we had seen in a very long time. Until we saw this. And this.
Hopefully the wheels of justice turn a little better the second time around.