The Vermont Attorney General is being sued for allegedly denying access to public records.
On Tuesday, Government Accountability and Oversight, a non-profit described on its website as an “organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement,” announced that it filed a complaint in Washington County Superior Court against the Office of the Vermont Attorney General (AG) on behalf of Energy Policy Advocates, a non-profit registered in Washington State.
The complaint was filed by Matthew Hardin, an attorney with an office in Stanardsville, Virginia. Hardin is on Government Accountability and Oversight’s Board of Directors, as well as the Board of Directors for Energy Policy Advocates, according to their respective websites.
According to the complaint, Energy Policy Advocates filed four public information requests with the AG in April. The AG withheld several records in connection with each request and denied Energy Policy Advocates’ appeals in each instance, citing attorney-client privilege rules exempting the records from public disclosure.
In the first case, the AG stated that the records being asked for “consist of communications among Attorney General’s offices of multiple states, including Vermont, regarding issues of common interest, made in connection with anticipated litigation. We do not have any records responsive to this request that are not exempt from disclosure.”
It made an identical or similar statement for each request, according to the complaint.
According to Environmental Policy Advocates, its request on April 13 was for all electronic correspondence with Nick Persampieri that includes in the subject field “GHG Emissions Affirmative Legislation” and or “Affirmative Climate” dated from June 17, 2019, through April 9, 2020.
Persampieri is a Vermont assistant attorney general.
The AG denied the request for 41 records, saying they were exempt under the attorney-client privilege rules of Vermont. It said six of those records were internal communications or communications between it and the Vermont Agency of Natural Resources. According to the complaint, the AG said the others were communications with attorney general offices in other states, “regarding issues of common interest, made in connection with anticipated litigation.”
The second request was filed April 14. Environmental Policy Advocates requested three categories of record, only two of which are at issue with this lawsuit. Those being any electronic correspondence involving Persampieri about “Bachmann” or “Goffman,” and any electronic correspondence between Persempieri and Michael Myers dated between Nov. 4 2019 and Nov. 17. According to the complaint, the AG withheld three records from this request.
The third request was filed April 17. Environmental Policy Advocates wanted records of any “notices of, cancellations of, and/or invitations to participate in a ‘Multistate’ call and/or ‘Coordination Call’” sent to Persampieri from “Emma Borg and/or Steve Novick,” dated Oct. 22, 2019 through whatever date the AG processed the request. According to the complaint, the AG denied nine records in connection with this request.
The fourth request was filed on April 28 asking for emails that include the words complaint, criteria pollutant, greenhouse gas, greenhouse gases, GHG, or that has to with public records requests or lawsuits involving Hardin, Neal Cornett, Christopher Horner, or Energy Policy Advocates.
According to Government Accountability and Oversight’s website, Horner is on its board of directors; Cornett is with the group as a “GAO professional.”
Environmental Policy Advocates argued in its complaint that “common interest doctrine” isn’t recognized by Vermont law. Likewise, arguments about attorney-client privilege are misplaced in this situation.
“These are records that Vermont has shared with many other states, but doesn’t want to share with the public,” stated Hardin in an email to the Herald this week. “That’s a concern for anybody who believes in transparency. We get nervous when things are too secret to share with the public but not too secret to share with certain favored people.”
The AG’s office released a statement to the Rutland Herald and Times Argus on Thursday.
“This lawsuit involves an issue of public records that we consider to be subject to attorney-client privilege and the work product doctrine,” the AG’s office stated. “We have an ethical obligation, as the State’s law firm, to keep these records confidential. We look forward to the Court’s decision on this issue.”