Minnesota Supreme Court Recognizes Common-Interest Doctrine But Also Rules That Attorney General Ellison May Shield Nearly All Internal “Policy” Data From Public

St. Paul, MN- In a serious blow to government transparency, the Minnesota Supreme Court ruled today in a 4-3 decision in Energy Policy Advocates v. Ellison that the Office of the Attorney General may conceal from the public all “communications…regarding administrative or policy matters which do not evidence final public actions,” unless the person requesting the data is the individual subject of the data. In addition, the Attorney General may conceal all inactive investigative data unless an individual subject requests it. This is because the majority claimed, the Legislature identified the data subject to Minnesota Statute 13.65 as “private data on individuals”—even if there are no individual subjects of the data.

In his dissent, joined by Chief Justice Lorie S. Gildea and Justice G. Barry Anderson, Justice Paul Thissen called this definition of “private data on individuals” “Orwellian” because the Court defined data that has nothing to do with individuals as “data on individuals.” Justice Thissen asked, “Why would the Legislature have used the word “individuals” if it meant for section 13.65 to cover data that was not on individuals?” Justice Thissen then mused: “Only a lawyer could take delight in pondering that question and reaching the result the court reaches today; other Minnesotans will be scratching their heads.”

The Court also noted that advocacy groups like Energy Policy Advocates—or media entities like the Star Tribune, Alpha News, Pioneer Press, MPR, KMSP, KARE, Fluence Media, Center of the American Experiment, and WCCO—have no right whatsoever to access any such policy data because they are not natural persons. Thus, somehow, non-persons cannot even request policy data that discuss them specifically.

In the same opinion, however, the Court adopted Energy Policy Advocates’ proposed formulation of the “common-interest doctrine” in a 7-0 vote. That formulation requires the Attorney General to demonstrate that any communications with other attorneys general share common “legal” interests, as opposed to “policy” interests. The Court, therefore, remanded the case to the district court for a decision on whether the Attorney General’s communications with other attorney general sought by Energy Policy Advocates were privileged and invoked a common legal interest.

Rob Schilling, Executive Director of Energy Policy Advocates, said “We are heartened that every single justice unanimously held that the common interest doctrine cannot protect communications on political or non-legal matters, and we look forward to arguing in the district court based on a proper index that we remain entitled to most of the documents we requested. Information that has come out — including subsequent to this argument particularly in recent weeks — expressly confirms that this litigation campaign by progressive attorneys general is in fact a policy campaign, seeking to obtain policies denied them, their allies, and their donors through the proper democratic process.”

James Dickey, Senior Trial Counsel for the Upper Midwest Law Center, which represents Energy Policy Advocates in the case, said: “Justice Thissen’s dissent said it best: this decision related to Attorney General Data is a head-scratcher. It is astounding that, in spite of our Data Practice Act’s strong presumption of government transparency, the Attorney General of Minnesota may apparently shield all internal discussions and communications about policy matters from Minnesotans who simply want to know what their government is doing. This decision will only further erode public trust related to the Office of the Attorney General.”

The Court remanded the case back to the district court for further proceedings on whether communications sent from the Office of the Attorney General to other attorneys general are privileged and invoke a common legal interest.

EPA Court Filing Points to Widespread Admin Appointee Use of Non-email Communications — Signal, WhatsApp, Chats — at SEC, FERC, White House, EPA, Elsewhere

Read the filing.

Energy Policy Advocates letter to Environment and Public Works committee about conflicts between EPA and Biden appointee

Read the letter.

What Anne Arundel doesn’t want the Court to know

UPDATE: Anne Arundel affidavit seeks to justify keeping secret the contents of its email about the foundation recently revealed as being the pass-through for Leonardo DiCaprio and others to pay for its 'contingency fee' law firm.

EPA attorney deposes Bloomberg-funded special assistant attorney general

Read excerpts of the deposition here.

What Anne Arundel doesn’t want the Court to know

As EPA has previously noted, below, Anne Arundel County, Maryland is so far the only "climate" plaintiff — among many in a coordinated nationwide campaign — to admit to having records mentioning the pass-through serving as the, or at least a very major, private funder behind the campaign. Now, presented with Energy Policy Advocates' Public Information Act complaint seeking a copy of the email containing that mention, the County has asked its local courts to strike from the record most of the backstory of what is going on and why it is important.

The public interest relevant to a Public Information Act (PIA) request is apparently "immaterial."

Specifically, EPA's June PIA suit seeks a single email that the County admits it possesses mentioning Resources Legacy Fund — now outed as the pass-through financier for Hollywood and other wealthy donors to pay the law firm which has been filing AAC's and others' lawsuits in this nationwide litigation campaign. The email, dated eight weeks before AAC filed its suit, seems inherently to reflect that AAC actually knew about the private financing, and prior to awarding a lucrative "contingency fee" contract to the plaintiffs' law firm to be paid out of supposed damages suffered by the taxpayers.

The reason? Apparently, noting why the record is of public interest, and the existence of this privately financed nationwide campaign, is "tilting at windmills and engaging in an apparent quest to prove some unspecified irregularity in the source of funding for a climate change lawsuit", and "baseless, improper, impertinent and immaterial conspiracy allegations."

Oops.

That pose does seem to further elevate the public's interest in what was the County's knowledge of the nationwide, coordinated campaign financed by the same pass-through and of which the County is a part.

Based on New Revelations, Two Open Records Lawsuits in Maryland and Minnesota Detail Private Financing of Politicians' "Contingency Fee" Climate Litigation Campaign, Seek Further Documentation

Rules of Professional Conduct may bar plaintiffs' firm from continuing in some, maybe most jurisdictions 

UPDATE 7/12/2022 6:39 PM: EPA has received the following relevant documents from Minnesota AG Ellison’s office

UPDATE 7/29/2022 6:25 PM: The City of Annapolis has released its agreement with the law firm filing these suits, but withheld the scope of work and just how big the 'contingency fee' was out of the City's alleged damages.

UPDATE 8/2/2022 11:55 AM: Rhode Island released a substantially redacted contract containing what disclosures Sher Edling, LLP made to the State

UPDATE 9/2/2022 5:38 AM: EPA files response to county effort to keep details of climate litigation campaign out of the record.

 

Recently, Emails produced in Government Accountability & Oversight v. Regents (UCLA Law School) (Superior Court for Los Angeles County), combined with a find on the Wayback machine to remove any plausible denial of something hinted at by items which had surfaced over the years: the law firm filing the tsunami of "contingency fee" climate lawsuits from 2017 through late 2021, Sher Edling, LLP, was privately being paid millions of dollars expressly to finance these "the nuisance lawsuits"* at the request of politicians, for which the lawyers also were promised enormous "contingency fees" in the event of a settlement or if they prevailed.

The money was being run through a charitable foundation, which raises its own issuesfor the donors, the foundation (given how it reported these grants to the IRS, in the face of what these records confirm was the true purpose), and the law firm.

This also raises serious questions about whether the firm can continue in its role with individual governmental plaintiff-clients, given the Model Rules of Professional Conduct.

Specifically, Rule 1.8(f)) prohibits lawyers from being compensated for representing a client by other than the client without the client's informed consent. 1.8f is in place in many jurisdictions in which these suits have been filed (e.g., RI, VT, DC, DE, SC, NY and particularly MN**).

Minnesota offers a great case study given the available facts. According to the package MN AG Keith Ellison provided Minnesota's Legislative Advisory Commission as a necessary step to get his contract with the firm approved, he did not disclose the private financing (i.e., nothing in the package even suggests that the firm was already being paid millions of dollars by private parties to file these suits; the contract itself, like others that have been obtained in records requests, also makes clear the "contingency fee" is the compensation for the work).

On the basis of this apparently incomplete information, the LAC approved the contract by which Ellison promised the firm sums that he expects will run into the many scores of millions of dollars out of the damages Ellison claims the taxpayers have suffered, on top of their extant compensation for filing these suits.

Now, another new detail has just emerged. In mid-June, a new denial of a records request sent to climate plaintiff Anne Arundel County (MD) strongly suggests that that plaintiff was informed about the double-dip, if orally: the County states that it has an email among County officials discussing the charitable foundation behind the payments, but refuses to release it.

The County states this email is dated about eight weeks prior to Sher Edling, LLP filing suit for them on a contingency fee agreement (also being withheld)(alternatively, theCounty could have read the online speculation that this was happening, yet proceeded anyway). The County's reasoning is "This communication is also protected by attorney client privilege pursuant to GP § 4-301 (a)(1) as Mr. Johnston was the Director of Environmental Policy for Anne Arundel County and the communication was with attorneys at the County Office of Law regarding an ongoing legal matter."

This suggests that, at least by late 2021, plaintiffs were aware of this arrangement. How they became aware is an issue, but let's assume the law firm informed at least Anne Arundel County. The public has a right to know which is the case.

This makes the questions for Keith Ellison crystal clear: what did you know about the private funding, and when did you know it?  Are you a dupe, or are you in on it?

Given the above, government-transparency group Energy Policy Advocates has today filed two new open records lawsuitsone against Ellison's office for any other disclosures it obtained from Sher Edling, and the other against Anne Arundel to compel production of the email showing they discussed, once, the private donor in March 2021, 8 weeks prior to filing suit.

 

* After some setbacks on the nuisance front, they have retooled their claims to add state law consumer protection claims.

** CO also holds to this Rule. The Colorado suits were filed by a: different legal shop, but again one that also apparently was privately compensated to file the suits.

Update on private funding of climate litigation, and specifically what did Keith Ellison know and when did he know

Earlier this month Energy Policy Advocates sued Minnesota AG Keith Ellison for records reflecting disclosures from the law firm Sher Edling, LLP, and records mentioning one of at least two third-party founders of these climate suits, Resources Legacy Fund.

Yesterday EPA obtained records in that matter, including the firm’s précis for why it should get the business and how they would execute it.

The cover letter is informative, and the documents are both for what they do and do not contain.

There remains no written evidence the firm told Ellison about the third-party finding, and indeed there is now even more evidence of representations otherwise (see précis pp 14-15s).

We do now see his Office apparently didn’t blink when defendants pointed out the appearance of this funding in their removal action. That seems strange if they were not aware; surely Keith took them to task on the phone on the call whose redacted agenda is attached to one of those pleadings? And simply decided against updating the LAC with this new information? Or, was he not a dupe but in on it?

Things are no clearer whether Ellison mislead the Legislative Advisory Commission on his own volition in seeking approval of the agreement, or did so because the firm had not informed him that, e.g., Leonardo DiCaprio and other activist funders were already arranging for the firm to be compensated for these suits.

What is further clear is that Ellison ought to explain this.

About Energy Policy Advocates

Energy Policy Advocates is a nonprofit corporation organized in Washington State. We seek to bring transparency to the realm of energy and environmental policy.

At EPA, we believe that you have a right to know who your government is talking to when it makes the decisions that affect you the most, and what the costs are of the policies bureaucrats make in the halls of government.

We don’t take policy positions, but we do use federal and state transparency laws, such as the Freedom of Information Act, to seek out information. Then, we share that information with you so that you can decide for yourself whether government is making the right choices for you and your family.

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