ST. PAUL, Minn. (Legal Newsline) - The Minnesota Court of Appeals ruled on Tuesday that Attorney General Keith Ellison cannot conceal documents related to his office's communications with attorneys general in other states.
The Court of Appeals reversed a previous Ramsey County District Court decision and held that the "common interest doctrine" - which allows states to withhold communications involving conversations with other states - is not valid in Minnesota. The case was represented by Upper Midwest Law Center on behalf of Energy Policy Advocates, a nonprofit public interest group that promotes governmental transparency.
"What the Court of Appeals said in Minnesota is that those types of agreements—they're called common interest agreements—are not valid under Minnesota law. If you share something outside of the attorney-client relationship in Minnesota, if you share it with Washington or with New York, then you've got to share it with the public, too. That's what the case is about, and that's what the appeals court held," said Matthew D. Hardin, a board member of Energy Policy Advocates.
According to Hardin, Ellison’s office has signed agreements with numerous other states and possibly also private organizations. Those agreements maintained that the states would share information with each other confidentially without releasing details of those communications to the public. However, the court decided that the AG cannot withhold data on the grounds of broad “common interest doctrine” claims.
"We always argued that the public had the right to know anything that outside organizations are told. Attorney-client privilege is a thing, but you don't get to tell New York something that you're not willing to tell the public. That was always our position throughout," Hardin said.
While Ellison argued that the common interest doctrine allows his office to keep communications hidden from the public, the Minnesota Court of Appeals said in its decision that the doctrine has never been valid in the state.
"The common-interest doctrine might be considered a 'professional standard' if it were recognized by law, but—as respondents concede—it has not been recognized in Minnesota," the court stated in the decision. "Respondents urge this court to recognize the common-interest doctrine for the first time, but we decline the invitation to do so."
The ruling is significant in that it will require Ellison to be more transparent about his activities moving forward, Hardin said. In addition, Ellison's office will need to release documents pertaining to his climate change agenda that have been hidden for more than two years, despite repeated requests for them to be made public.
Energy Policy Advocates originally filed suit against Ellison in August 2019 in the Ramsey County District Court. The lawsuit sought to compel the AG to release details surrounding his hiring of two privately funded special assistants attorneys general (SAAGs) who, according to the complaint, “initiate[d] investigations of perceived opponents” of their shared climate change policy agenda.
As previously reported, publicly available information revealed that the SAAGs were embedded in Ellison's office by the New York University School of Law's State Energy and Environmental Impact Center (SEEIC) in 2019, a year before Ellison filed suit against Exxon Mobil and other traditional fossil fuel energy companies. Documents show that the attorneys' salaries were paid for by Bloomberg Philanthropies, an activist group funded by Michael Bloomberg.
When contacted by Legal Newsline for comment in April, Ellison's office denied impropriety in the hiring of the SAAGs and pointed to a statement asserting that the two attorneys only serve the best interests of Minnesotans. Nonetheless, the office did not deny the fact that the SAAGs were privately funded.
Energy Policy Advocates believes that this week's ruling represents a major victory in their effort to uncover the innerworkings of potentially secretive arrangements made between the AG's office, wealthy donors and climate activist groups.
"This is just an example of what's wrong with the idea of having donors fund law enforcement, and then the state thinks that they can hide what donor-funded law enforcement is doing,” said Hardin. “In our minds, it is inappropriate, and hopefully, these records will show us what was really going on there.”