Vermont AG Scrambling After Admitting to Blocking FOIA Based on Requesters’ Politics

There’s been a lot of smoke coming from the Vermont Attorney General’s office over the past few days after Bill Griffin, the chief assistant attorney general, made it clear at a hearing in the Washington County Superior Court that the Vermont AG makes a practice of determining the politics of any group making public records requests – and then withholds these records if the group’s politics do not match up with its own.

As the Vermont Digger reported last week, Griffin admitted,

“We get a request from [Energy and Environment Legal Institute] and so one thing we might consider is where are they — who are these people? Where are they going with this? And we Google them and we find, you know, coal or Exxon or whatever — and so we’re thinking this is — we better — we better give this some thought before we — before we share information with this entity.”

“Or it might be a news organization and we think, well, what are they going to do with it?” he continued. “Well, they’re going to publish it to the world. So that would be — I mean, that would be my mental impression and, you know, let’s exercise some caution. Is there some public interest publishing this information at this time? Probably not.” (emphasis added)

A few interesting things have happened since that article came out, which was around 7 pm Thursday night. Sometime between the posting of the article and early Friday morning, Vermont Digger updated the story to include an extended comment by the AG himself – TJ Donovan – walking back Griffin’s statement. Yet curiously, there was no disclosure that an update had taken place, as would be expected.

Here’s what that update says:

In an interview, newly elected Vermont Attorney General TJ Donovan defended Griffin’s comments about the AG’s review of requesters.

“I think Griffin was unequivocal about the fact that access to public records applies equally to everyone,” Donovan said. “And this issue of Googling … is just to provide context. It’s not a determining factor about whether or not the records requested is granted or denied, it’s just to say, who are these guys.”

Donovan says his office reserves the right to withhold documents under attorney client privilege.

“The state of Vermont is our client in matters that we are involved in,” Donovan said. “At some point in time, we will assert attorney-client privilege.”

There is no bright line rule, however, Donovan said. Decisions about what records are released is “very fact and case specific.”

Not long after that was updated, on Friday afternoon, another Vermont outlet, Seven Days, published an article highlighting what Griffin said, which also featured Donavan walking-back those comments – this time from an in-person interview in his office. Here’s how that played out:

Judge Mary Miles Teachout sought to clarify Griffin’s position several times throughout the hearing. According to the court transcript, she said, “Your argument is that the exemption that you’re relying on is really much broader than that. It’s that the Attorney General’s Office is, as the State of Vermont is a client; therefore, anything with the Attorney General’s Office does or has in its possession is exempt from the public records act unless you choose to reveal it. I understand that that’s your argument.”

Griffin, a 35-year veteran of the office, responded, “That is correct, and it’s because we’re a law office by statute.”

He has since insisted that’s not exactly what he meant. “So I took the question to mean legal files, not the shopping list on my desk or an expense account or a budget document we had provided to the House Appropriations [Committee].”

Attorney General T.J. Donovan brought Griffin, assistant attorney general Sarah London and deputy attorney general Josh Diamond into his corner office Thursday afternoon to address the situation with Seven Days.

“We have released records, so clearly, you know, the policy of the office is not to take the position that all records are exempt from the public records law,” Donovan maintained.

This is a key piece of the puzzle regarding the #ExxonKnew crusade, as the AGs launching investigations into ExxonMobil have been issued a discovery order by a federal judge to determine if “bias or prejudgment” influenced their decision to launch what could be a “bad faith” investigation into the company. Since the Vermont Attorney General’s Office is part of New York Attorney General Eric Schneiderman’s climate coalition — and joined in the now infamous March 29th press conference with Al Gore — its refusal to make these documents public, and its admission that it particularly withholds them from certain parties, makes the whole thing a lot more interesting.

There’s an old saying that where there’s smoke there’s fire, and all signs point to the likelihood that the Vermont Attorney General is trying to put one out.

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