After a yearlong court battle against a Washington, D.C.-based nonprofit, the Vermont attorney general’s office says it has no records to turn over relating to a multi-state investigation of groups opposed to climate change policies.
Attorney General TJ Donovan’s office on Monday sent a letter to the Energy and Environment Legal Institute indicating that it had no emails to deliver to the group. A representative from the legal institute told True North the move represents a change in the office’s story.
“It’s a very confusing letter. For almost a year they said that they had records and they were exempt and they didn’t have to give them to us.” Matthew Hardin, a lawyer for Energy and Environment Legal Institute, said. “The court said they have to give us records and now they say they don’t have any records after all.”
“They’ve changed their story and I don’t know what to believe at this point, but we certainly will look into it, figure out who searched for records, where they searched, and what’s really there and what’s not,” he added.
He said civil penalties may apply if further investigation uncovers that the attorney general’s office has records but is denying it.
“The first thing we are going to do is get an explanation from the attorney general’s office about what really happened here. And then they are going to have to tell a convincing enough story for the court to believe,” Hardin said.
The court has been hearing arguments for about a year on why the requested records should be withheld. The saga started last year in March when Vermont joined AGs United for Clean Power, a group of 17 Democrat attorneys general that was threatening legal action against Exxon Mobil for potentially cherry-picking research information about climate change.
As they conducted their work, the AGs and their staff signed pseudo-legal common interest agreements to shield their efforts from public disclosure, including information that might be gleaned from public records requests. In June 2016, Energy and Environment Legal Institute sued then Attorney General William Sorrell for records.
Last month, Vermont Superior Court Judge Mary Miles Teachout ruled the common interest agreements did not create an exemption from records requests. She gave the office 30 days to deliver documents.
“I have never had this all happen before in this order,” Hardin said. “Sometimes you send a records request and they say we don’t have any records, but the usual time to say that is when they first get the request. I’ve never had it happen that an agency will say the records are exempt and later on change their mind and say there are no records.”
According to Hardin, the officials involved in AGs United for Clean Power said they would let each other know when they got an open records request and would then either consent or object to turning over records.
He also said computer programming experts can determine if any material or emails have been deleted off a computer, and that they might be called on to testify in court.
“We have a right to discovery, and we will put people under oath, and they will have to explain what happened,” he said.
Search terms requested by the legal institute last year included ‘Frumhoff,’ for Peter Frumhoff of the Union of Concerned Scientists, and ‘Pawa,’ for Matt Pawa of the Climate Accountability Institute. Hardin said the two prominent environmentalists have ties with the various attorneys general in the group.
Hardin explained that what’s most odd about the situation is why the attorney general’s office would fight for a year in court over records that don’t exist.
“Were you telling the truth the first time that you have records that were exempt, or are you telling the truth now that there are no records? They are mutually exclusive,” he said. “They haven’t given us records and they haven’t appealed — instead they’ve changed their story.”