GAO Asks Court to Compel New Mexico AG to Stop Stonewalling in Discovery, Provide Answers to Questions About Work with Activists and Activist AGs

Reposted from Government Accountability and Oversight.

CHRIS HORNER GAO, In The News

EPA reveals AGO’s claim that records are shielded by “pending litigation,” secrecy pact directly contradicted by New York Attorney General claim to WSJ

Albuquerque, NM, December 8, 2020 – The public interest law firm Government Accountability & Oversight, P.C. (GAO) and local counsel Pat Rogers have filed a Motion to Compel answers in litigation discovery against a stonewalling New Mexico Attorney General Hector Balderas, in a lawsuit filed under the Inspection of Public Records Act (IPRA) on behalf of the government-transparency group Energy Policy Advocates (EPA). GAO seeks to end six months of AG Office obstructionism, hiding records relating to its work with outside parties to, as one document sent to a Michael Bloomberg-funded activist group that placed attorneys in Balderas’s Office puts it, “identify ‘pressure points’ on which litigation can be used to most effectively influence policy.”

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AG Balderas has extended his refusal to release public documents and information, keeping secret his work and even contracts with outside activists, the tort bar and other state AGs to advance private ideological, political and financial agendas. As EPA’s Motion notes, the AG’s Office has refused to provide good faith answers and an adequate privilege log, explaining why to EPA’s lawyers in one call: “This is a very confidential matter.” This claim is irrelevant, if telling, and EPA now seeks compelled responses and sanctions against Balderas’s Office.

As the Motion notes:

The [IPRA] requests relate to a multi-state campaign by certain offices of state attorneys general to coordinate the advancement of a sweeping private policy agenda. Although this campaign was undertaken in consultation with outside activists and other parties, these AG offices are obscuring their involvement under so-called common interest agreements. These common interest agreements themselves are being withheld, now in discovery, so that the Plaintiff, the public and the Court are expected to simply trust OAG that the details of these common interest agreements—which in turn are used to justify the withholding of volumes of public documents—do represent valid common interest agreements, and are legally privileged.

Although Balderas’s Office claims that the records detailing this coordination are privileged because of imminent litigation it plans to file, the Motion notes “The author, ringleader and lead signatory of the effort to shield discussions about suing to obtain federal “climate” regulations [New York Attorney General Letitia James] has just publicly denied that the parties have moved beyond such theoretical discussions, and flatly admitted that there is no reasonably anticipated litigation Defendant can point to supporting the claim that a preposterously broad purported common interest agreement shields the records Plaintiff seeks”. This admission by New York’s James was reported in a Wall Street Journal story by reporter Tim Puko that ran just last week, seeking to dismiss the reporter’s interest in these same machinations.

The Motion also notes:

The Defendant has invoked these secret common interest agreements to withhold correspondence to and from outside parties, and at least one Power Point presentation prepared by an outside activist, while also withholding the very agreements themselves. Both the purported common interest agreements at issue in this case and certainly the correspondence with outside parties that the Defendant continues to withhold  are of enormous public interest and importance for the light they shed on the use of a critical public office and public funds to pursue and keep secret a private agenda, the actual work of the “quasi-public employees” involved and the details of the collaboration between plaintiffs’ attorneys, private partisan political donors, ideological activists and states’ attorneys general.

In New Mexico the AGO is specifically commanded by law to enforce the Inspection of Public Records Act but is now holding itself above the law it is obligated to enforce. In so doing, AGO attempts to avoid New Mexico citizens’ right to the sunlight of public disclosure by entering self-serving agreements to keep the secret operations hidden from disclosure to the public.

As EPA informed the Court, “Defendant also changed its practice of releasing the identities of outside parties to responsive correspondence, and began reflexively, automatically and improperly withholding the names and identities of all individuals from outside of the New Mexico Attorney General’s Office who were copied on correspondence the Plaintiff requested.”

This unlawful behavior is being undertaken in fealty to several secrecy pacts one of which, EPA has learned, arranges for state AGOs to serve a supporting role for private tort firms pursuing municipalities in “climate nuisance” litigation. This suggests the prospect that the records’ details have also been shared with the tort bar, and others.

Other records obtained by EPA and hidden by AGO reveal a campaign with outside activists to impose the equivalent of the “Green New Deal” on the country through the courts, “purport[ing] to memorialize an agreement to take judicial or administrative action to require the Federal Government or private parties to take action or defend the right to take action to reduce or limit greenhouse gases. More concisely, it is an agreement to share information that may be used to do something against some public or private entity or entities, under some authority and maybe the Clean Air Act or not, at some point in time, but most definitely regarding greenhouse gases. As such it is not only a parody of a common interest agreement but also a clumsy effort at a secrecy pact, implemented in this case as an instrument to provide allies notice of requests and a plausible means to delay or refuse releasing public records… This is not a common interest agreement; this is an attempt to shield the workings of the New Mexico Attorney General from public scrutiny in violation of public policy.

“The public has a right to know how public dollars and the Attorney General’s Office are being used to advance private political agendas, and what contracts it enters in the public’s name,” said GAO’s Chris Horner. “New Mexico’s AGO has engaged in unlawful and often clumsy behavior to hide precisely what they are up to, which stonewalling today’s Motion seeks to finally end.”

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement