ST. PAUL, Minn. (Legal Newsline) - Attorney General Keith Ellison has filed a petition with the Minnesota Supreme Court for review of a June 1 Court of Appeals decision, which stated that the AG could not conceal communications between his office and other states' attorneys general.
According to the Court of Appeals ruling, the "common interest doctrine," which allows states to withhold documents pertaining to discussions with other states, is not valid in Minnesota. The decision came after nearly two years of ongoing litigation - brought by the nonprofit public interest group Energy Policy Advocates (EPA) - to compel Ellison to release undisclosed documents pertaining to his hiring of two Bloomberg-funded Special Assistants Attorneys General (SAAGs).
In his petition for review, Ellison called on the Minnesota Supreme Court to "grant review and reverse" the previous decision. He argued that the ruling was made "without analyzing the resulting policy or legal implications; simply holding that this Court has not yet decided whether it will recognize this well-established doctrine.”
According to the Court of Appeals, however, the common interest doctrine has never been applicable in the state of Minnesota.
"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 its precedential decision. "Because the common-interest doctrine is not recognized in Minnesota, its application is not authorized by section 13.393. Accordingly, the common-interest doctrine is not an exception to the disclosure requirements of the MGDPA [Minnesota Government Data Practices Act]."
Doug Seaton, founder and president of the Upper Midwest Law Center, believes that Ellison was motivated to file the petition because he fears the potential fallout that might occur if his office's trove of undisclosed documents is finally revealed to the public.
"The fundamental issue here is whether AG Ellison can withhold documents covered by Minnesota’s FOIA statute by claiming that everything is 'privileged' whenever it relates to communications with outsiders about legal issues or strategy," Seaton told Legal Newsline. "This 'exception' could be cited every time the AG takes direction from outsiders in the legal affairs of the people of Minnesota, which is the very problem our information requests address: Bloomberg/NYU Law School's direction, hiring and funding of 'climate change warriors' as lawyers in the AG’s office, in defiance of Minnesota law."
As previously reported by Legal Newsline, the original suit against Ellison was filed in August of 2019 by EPA and represented by Upper Midwest Law Center. The complaint alleged that the AG had been deliberately hiding records that show clear relationships between the attorneys general in several states and a major donor's group, the State Energy and Environmental Impact Center (SEEIC) at the NYU School of Law, an activist organization backed by Michael Bloomberg. The suit further argued that Ellison's office hired two "special assistants attorneys general" (SAAGs) - pre-paid for by the SEEIC - "to initiate investigations of perceived opponents of a shared political and policy agenda."
Matt Hardin, board member of Energy Policy Advocates, believes that the AG has been relying on perceived protection from the existence of a privilege - the common interest doctrine - that does not, and never has, existed in Minnesota law.
"It may be 'bury-your-head-in-the-sand' hopefulness on the part of the bureaucrats that their attempts to hide records would eventually be upheld under novel theories never recognized in Minnesota. Nevertheless, you'll notice that the AG's office is unable to point to a single case in Minnesota establishing the existence of the common interest privilege. That’s because there isn’t one," Hardin told Legal Newsline.
Battles over the common interest doctrine have been waged in several other states in recent years. In 2016 and 2017, the Vermont trial courts ruled that the state of Vermont does not recognize the common interest doctrine, affirming a prior 1991 ruling by the state Supreme Court. In New York, the state Supreme Court determined in 2018 that the state recognizes the common interest doctrine, but only in a very limited way that differs from other states. A federal judge in Iowa also previously ruled that the common interest doctrine is not recognized in the state.
In Minnesota, the Court of Appeals emphasized in its June 1 decision that common interest doctrine has no bearing on attorney-client privilege because that privilege “is codified in a state statute and is protected by a rule of court.” Ellison's petition for review, however, argues that the Court of Appeals decision “constrict[s] the scope of attorney-client privilege."
Critics of Ellison argue that the AG is simply grasping at straws in an attempt to evade increasing calls for transparency.
"Attorney General Ellison is asking the Minnesota Supreme Court to take the side of well-connected activists outside of Minnesota over Minnesotans," Hardin said.
"He’s asking the Court to bless the idea that he can share information with New York or Washington but hide that same information when it is requested under the state’s own transparency laws. Needless to say, we hope the Supreme Court upholds Minnesota’s commitment to transparency and rejects the Attorney General’s efforts to hide his communications.”
According to Seaton, the Upper Midwest Law Center intends to challenge Ellison’s petition and will continue fighting to compel the AG to turn over the long-concealed documents.
“What is the AG afraid of in a closed judicial review of these documents to consider his privilege claim? We will oppose his petition for these reasons and because it is premature, as well, and look forward to obtaining the documents and ending AG Ellison’s selling of the AG’s office to outsiders,” said Seaton.