ST. PAUL, Minn. (Legal Newsline) - Critics frustrated by Attorney General Keith Ellison’s lack of transparency involving his lawsuit against Big Oil are lauding a recent Minnesota Court of Appeals decision requiring the AG to release concealed communications between his office and other states' attorneys general.
The potentially groundbreaking ruling held that the "common interest doctrine," which allows states to withhold documents involving discussions with other states, is not valid in Minnesota.
Annette Meeks, founder and CEO of the nonprofit Freedom Foundation of Minnesota, has long argued that Ellison’s office is operating under a shroud of secrecy. The recent ruling, she believes, marks significant progress in a multi-year effort to hold the AG to the same level of accountability expected of all other elected leaders in the state.
"This is a tremendous victory for all Minnesotans but especially for those of us who seek greater accountability and transparency by elected officials," Meeks told Legal Newsline. "Our attorney general has not been forthcoming in answering basic questions about the operations of that office and the work they have been doing with other state's attorneys general."
The decision came after nearly two years of litigation—initiated by nonprofit public interest group Energy Policy Advocates (EPA)—to compel Ellison to release documents pertaining to his hiring of two privately funded Special Assistants Attorneys General (SAAGs). As previously reported, publicly available documents reveal that the salaries of the SAAGs, whom Ellison hired in 2019, were paid for by the NYU State Energy and Environmental Impact Center, a Bloomberg-funded activist organization.
In a complaint filed in August 2019, EPA, represented by Upper Midwest Law Center, argued that the AG has been hiding records that "demonstrate clear relationships between state attorneys general and the aforementioned major donor’s group." The suit also alleges that Ellison employed the SAAGs as part of a coordinated effort to target “perceived opponents of a shared political and policy agenda” relating to climate change.
“The Freedom Foundation of Minnesota believes that Ellison's office is inappropriately using Special Assistant Attorney Generals paid for by the New York University School of Law's State Energy and Environmental Impact Center to coordinate, instigate and litigate a well-coordinated climate change lawsuit between several states,” Meeks said. “Until we can fully and carefully review these important documents, Minnesota taxpayers really don't know what level of coordination and potentially inappropriate behavior has been happening in the Minnesota attorney general's office, action coordinated by staff paid for by private funders with their own agenda.”
Aside from requiring greater transparency from the Minnesota AG, the recent ruling will likely also have significant ramifications for the other states with whom Ellison communicated. While those states shared information with Ellison under the guise of protection from the "common interest doctrine," the Court of Appeals' decision will now mandate the unveiling of those previously hidden documents. The result could ultimately lead to shake-ups in other states where AGs have made similar efforts to shield these inter-state communications from constituents.
While the common interest doctrine is valid in some form in the majority of U.S states, the Appeals Court ruled that it has never been recognized in Minnesota. The court emphasized that while attorney-client privilege is protected and codified in a state statute, the common interest doctrine is not.
"Respondents urge this court to recognize the common-interest doctrine for the first time, but we decline the invitation to do so," the court stated in the precedential decision.
In an interview with Legal Newsline last week, Matthew D. Hardin, a board member of Energy Policy Advocates, argued that in the interest of transparency, the public has the right to know any information that other organizations or states are told by the attorney general.
“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.
Meeks is hopeful that the recent ruling will allow the taxpayers of Minnesota to finally have a better understanding of the inner workings of the AG's office.
“True government transparency is one of the only tools Minnesotans have to hold elected officials accountable for their actions,” Meeks said. "We've waited two years to see these thus-far secret documents—it's time for the attorney general to share with us what he's been hiding.”