MINNEAPOLIS (Legal Newsline) - Minnesota Attorney General Keith Ellison can cite the “common-interest doctrine” to shield communications with outside parties involved in climate litigation, the state’s highest court ruled, reversing an appeals court decision that would have made public Ellison’s conversations with other state AGs and private organizations.
The Minnesota Supreme Court also said a state law protecting “private data on individuals” may also apply to investigative materials and other information not about actual humans, a conclusion three dissenting justices described as illogical and “Orwellian.”
Ellison’s office was sued by Energy Policy Advocates, a nonprofit public interest group that promotes governmental transparency, to obtain records about its communications with other AGs about climate litigation, as well as records on the hiring of “special assistant attorneys general” who were paid by a nonprofit funded by billionaire Mike Bloomberg. Critics of the practice say it is unethical for the state’s highest legal officer to accept outside funding to pursue partisan litigation.
Energy Policy lost at the trial court level but won a significant ruling from the Minnesota Court of Appeals last June, when it held the attorney-client privilege doesn’t apply to information Ellison’s office share with third parties. The appeals court also ruled Section 13.65 of the state data privacy law applies only to information on private individuals.
The Minnesota Supreme Court reversed both rulings in a Sept. 28 decision by Justice Margaret H. Chutich that drew a strong dissent from three of the court’s seven justices, including Chief Justice Lorie Skjerven Gildea. In that decision, the court held that the common-interest doctrine applies in Minnesota and it could shield the information AG Ellison sought to withhold. It remanded the question to a lower court to decide whether the specific documents were protected.
The high court said “neither party seriously disputes” the state should affirm the common-interest doctrine and it had received amicus briefs from 38 other states, as well as the Minnesota Defense Lawyers Assoc., which normally is opposed to the AG’s office. It said the doctrine applies where parties represented by different lawyers share a common legal interest and exchange documents as part of “formulating a joint legal strategy.” The court limited it to a common legal interest, excluding a “purely commercial, political, or policy interest.”
The doctrine applies to attorney work-product materials, the court went on, and it isn’t subject to a balancing test between the public’s right to know and the AG’s need to protect his litigation strategy. The court rejected Energy Policy’s argument it didn’t apply to conversations among government attorneys, saying the lower court must determine that based on more information.
The court also said the data privacy act, while it states it applies to “private data on individuals,” also protects a wide variety of investigative materials. It rejected Energy Policy’s argument that loophole would allow the AG’s office to operate without any public disclosure.
Justice Paul C. Thissen dissented, joined by justices Gildea Barry Anderson. He said the text of the statute, and prior court decisions, made it clear Section 13.65 applies only to data on individual people,
“Why would the Legislature have used the word `individuals’ if it meant for section 13.65 to cover data that was not on individuals?” he wrote. “Only a lawyer could take delight in pondering that question and reaching the result the court reaches today; other Minnesotans will be scratching their heads.”
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.
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.