State courts in Minnesota and Vermont have reached different conclusions about whether documents produced and exchanged by state attorneys general, working together on investigations, are protected by the common interest doctrine from release under state public records acts.
In each case, Energy Policy Advocates (EPA) made requests under the Minnesota and Vermont public records statutes for documents related to certain environmental litigation principally relating to climate change. The attorney general of each state declined to produce some of the requested documents, citing attorney work product doctrine and attorney-client privilege. In each case, EPA challenged the state’s failure to produce the documents.
In the Minnesota case, Energy Policy Advocates v. Ellison. 2021 Minn. App. LEXIS 224 (Minn. Ct. App. June 20, 2021), EPA sought a variety of documents, including documents from other state attorney general offices involving multistate position statements and multistate litigation. The attorney general’s office declined to produce them, citing several grounds, including attorney-client privilege and work product doctrine. After a trial court upheld the attorney general’s refusal to produce the documents, EPA appealed. The Minnesota Court of Appeals partially reversed and remanded the case to the trial court.
The appellate court reviewed the Minnesota open records act and held that the act was “inapplicable to any data that are protected by the work product doctrine or the attorney-client privilege.” The court disagreed with EPA’s argument that the work product doctrine applied only to ongoing litigation and could not apply to litigation that was completed.
However, the court declined to apply the common interest doctrine to documents that had been shared with attorneys general from other states. The court held that the common interest doctrine is not recognized under Minnesota law, and declined to recognize it in this case, indicating that only the state supreme court could do so. The court held, “Because the common interest doctrine is not recognized in Minnesota, its application is not authorized. . . . Accordingly, the common interest doctrine is not an exception to the disclosure requirements of the [Minnesota open records act]. Thus, the district court erred by applying the common interest doctrine.”
The court also held that even if the common interest doctrine was recognized under Minnesota law, it applied only to attorney-client privilege material. The court held that “communication between a client’s attorney and another attorney is brought within the protection of the attorney-client privilege only if the communication between or among attorneys reveals the prior attorney-client communication.” The trial court held that the common interest doctrine did not apply to documents protected by the work product doctrine. The court concluded its analysis by holding that a formal agreement is not required for parties to invoke the common interest doctrine.
The appellate court remanded the case to the trial court for further review of the documents. The attorney general’s office has appealed the decision to the Minnesota supreme court, where the decision is pending.
The Vermont court reached the opposite conclusion about the application of the work product doctrine and the common interest doctrine to communications among attorneys general. In Energy Policy Advocates v. Attorney General’s Office, No. 173-4-20 (Vt. Super Ct. Jul. 16, 2021), the attorney general’s office had entered into seven separate common interest agreements (CIAs), predominantly with other state attorneys general, involving seven separate matters, some of which have been litigated and resolved, and some of which did not result in litigation.
The court provided a useful summary of the decision-making process of the Vermont attorney general’s office when it enters into multistate investigations. When a line attorney is presented with a multistate matter, he or she notifies the supervisor. “The supervisor directs the request further up the office hierarchy, and a decision is made as to whether the issue is one which advances the interests of Vermont and whether the office has sufficient resources to devote to that particular matter in light of its other commitments.” The court noted that “the Vermont Attorney General has very broad discretion to act as he or she sees fit in the interest of the State” and stated, “It is neither this court’s nor Requestor’s office to tell the AG how to exercise that discretion.”
Noting that litigation against large corporate entities is hard-fought, the court stated, “[P]ublic records requests may well be a part of such efforts, and that reality causes the AGO and others, most of whom have some form of public records act, to resort to the CIAs to guard against disadvantageous disclosure.”
The court examined in detail the work product privilege and its relationship to open records law. The court held, “Work product immunity in Vermont extends to materials prepared in anticipation of litigation, not merely those materials prepared after a lawsuit has been filed, and it continues following the termination of the litigation.” Regarding application of the common interest doctrine to work product materials, the court held, “Thus, the common interest doctrine is not necessary to the assertion of work product immunity. Similarly, reducing common interests to writing, such as in the disputed CIAs, is not necessary to an assertion of work product immunity.”
The court determined that it could apply the work product privilege in determining whether the documents at issue were protected from disclosure. The court concluded that the CIAs themselves were not work product, because they “do not in any appreciable way reveal legal strategy, legal opinions, or any other information sensitive to the signatories’ legal interests other than the identification of the common interest.” All other withheld documents were deemed to be work product.
The court also addressed plaintiff’s argument that the matters at issue were political rather than legal activity, and thus not subject to any privileges. While acknowledging that multistate litigation can be a vehicle for policy changes, the court held, “Neither work product immunity nor Exemption 4 [to the Vermont public records law] is predicated on any legal (immune) versus political (accessible) dichotomy. What matters under work product immunity is that reasonably anticipated, if not currently ongoing, litigation is at issue (or was at the time of the communication), and the materials sought relate to that litigation.”
Finally, the court addressed plaintiff’s argument that the requested documents involved litigation by third parties to which the Vermont attorney general’s office is not involved. The court noted that the attorney general’s office had provided an affidavit indicating that all the documents did relate to matters in which the office was, or was considering becoming, involved. This was sufficient to prevent the court from “look[ing] behind the AGO’s representations to determine whether any anticipated litigation is or was anticipated enough.”