Energy Policy Advocates v. Attorney General’s Office

The Vermont Supreme Court affirmed a trial court’s determination that communications between the Vermont Attorney General’s Office and other state attorneys general were shielded from disclosure under Vermont’s Public Records Act (PRA). The plaintiff had filed PRA requests seeking common interest agreements between the Vermont Attorney General’s Office and the other state attorneys general that mentioned carbon dioxide, greenhouse gas emissions, or national ambient air quality standards, as well as related communications. The trial court ordered the Attorney General’s Office to produce the seven common interest agreements but concluded that the work-product doctrine shielded communications and other documents from disclosure. The Supreme Court agreed, rejecting the plaintiff’s contention that ongoing litigation was required for the work-product doctrine to apply. The Supreme Court also concluded that the Attorney General’s Office did not waive the doctrine’s protection by sharing documents and communications with other attorneys general. The Supreme Court found that the documents were shared “in an effort to unify … strategy and conserve resources with regard to environmental litigation that the [Attorney General’s Office] has considered pursuing or predicted defending against.” The Supreme Court also found that the trial court should not have awarded the plaintiff attorney fees because the plaintiff had not substantially prevailed in the proceeding that consolidated four underlying lawsuits.