Climate FOIA: Public Wins, Court Orders Virginia AG Office to Comply with the Law Re Bloomberg Docs

WEBEDITOR 

2018 lawsuit, which already revealed previously-denied memo, other emails, takes major step forward

RICHMOND, VA (April 20, 2022) — Virginia citizen Christopher Horner and the free-market public policy group Competitive Enterprise Institute (CEI) prevailed yet again yesterday in their lawsuit against Virginia Attorney General Jason Miyares under Virginia’s Freedom of Information Act.

The suit was filed in the Circuit Court for the City of Richmond in November 2018, then subsequently dragged out through various maneuvers by then-AG Mark Herring’s Office. It sought to get to the bottom of contradictory positions the Office of Attorney General (OAG) has taken regarding its effort to bring into the Office one or more privately hired “Special Assistant Attorneys General” (SAAGs) with salary and benefits are actually paid by a Center created by billionaire climate activist Michael Bloomberg, expressly to pursue issues of concern to Mr. Bloomberg. The suit also sought records relating to OAG’s review and determination of any ethical concerns in entering the unprecedented, highly conflicted arrangement which OAG applied for, via Bloomberg’s “Center for State Impacts”, on September 15, 2017.

In a memo written on that date, Herring’s Office pursued — then later struck an agreement, all in writing — to bring one or more privately hired activist lawyers in-house to do an activist group’s bidding, a pursuit which was abandoned over the telephone after the Office began receiving Freedom of Information Act (FOIA) requests for correspondence and memos about the venture.

As the original Petition detailed, Virginia’s former Attorney General applied for, and was subsequently approved, for a privately funded special prosecutor for climate and renewable energy, to be paid $81,500 per year as an employee of Mr. Bloomberg’s “Center” established at New York University (NYU). The outfit was created for this purpose of placing employees in OAGs that commit to “advancing progressive clean energy, climate change, and environmental legal positions” favored by Mr. Bloomberg.

During discovery, the plaintiffs learned of the existence of a “GOLD Decision Memorandum” explaining the plans for these “SAAGs”, which Herring’s Office had denied existed. In another FOIA lawsuit by Horner after this revelation, and which sought to get around the stonewalling in this first suit, Herring’s Office has claimed the memo is privileged “working papers” that the public cannot see.

These revelations also played a role in the recent trial in the case decided yesterday. The Office will have to acknowledge that memo and other documents in a computer folder also revealed in discovery exist, and decide whether to at long last turn the memo and other records over, too, or keep litigating but now claiming this very narrow privilege.

The Petition also noted that as part of this application, but without citing to any specifics, OAG certified that it has the legal authority to bring in employees funded by Bloomberg, and that there are no gift or professional responsibility impediments. This not only contradicts Virginia law and raises questions relating to ethical obligations for attorneys paid by non-clients, but OAG claimed it had “no records” showing that it ever undertook any such analysis, opinion or conclusion on its legal assertions.

Horner and CEI detailed the arrangement, and Virginia’s effort to join in such a extensive and elaborate campaign using AG offices in coordination with major contributors and activist pressure groups to attain a policy agenda that failed through the democratic process, in a recent report, “Law Enforcement for Rent” and extensive appendix of source documents also available on ClimateLitigationWatch.org

Horner and CEI’s most recent victory is at least the third instance so far in which Virginia’s OAG has been defeated in the same case. The former Attorney General’s insistence that he did not have records to provide Mr. Horner and CEI was rejected initially at the motion to dismiss stage. Upon being ordered to file an answer, the Attorney General instead filed a “Plea of Nulla Bona,” in which the office again reiterated its position that no further records of its relationship with NYU and the Bloomberg-funded Center existed. When the Court rejected the Plea of Nulla Bona, the Attorney General at long last filed an answer, and the case was set for trial. Following trial, the Court has now ordered the Attorney General to search for and produce the documents it has long stated do not exist.

Horner said “We look forward to the results of a proper search and hope Virginia’s new Attorney General will put an end to three and a half years of stonewalling over how the state’s former top attorney come to make such a promise, and what led them to abandon the effort after we started asking questions. Hopefully, he’ll now turn over these public records that have been at issue since 2018.”

Local counsel Graven W. Craig represented the parties, joined by Matt Hardin, and Chris Horner pro hac vice.