Advice from attorneys general remains secret in some states

By MEAD GRUVER and DAVID A. LIEB
Associated Press

CHEYENNE, Wyo. (AP) — When officials in Wyoming faced public pressure to allow a citizen recount of election results, they reached out to the state attorney general for legal advice about how to proceed.

But Attorney General Bridget Hill refuses to say what she told them. In fact, Hill’s office has yet to publicly release any advisory opinions she has provided to other governmental entities, saying that every one written during her four years in office has been privileged and confidential.

Cheyenne-based news media attorney Bruce Moats calls it poor policy and questions whether it violates Wyoming’s public records law.

“Is it really just playing games with this whole process?” Moats added.

Attorneys general serve as the top legal counsel for their respective states. Besides defending states in civil lawsuits or criminal appeals, they also occasionally provide written opinions to state or local officials who are unsure about how to interpret the law in particular instances.

But like Wyoming, about one-fifth of the states haven’t publicly posted any attorney general opinions in the past several years, a review by The Associated Press found.

The most recent opinions available online date from 2020 or earlier in Missouri, New Jersey, North Carolina, Pennsylvania and Vermont. There are no legal opinions readily accessible online in Massachusetts, Rhode Island and Utah.

By contrast, the attorneys general in some states, including the two most-populous ones of California and Texas, post dozens of legal opinions online each year.

Open government advocates say those legal opinions, which often have broader implications for public policy, generally should be available to the public.

“Records that exist ought to be shared openly and publicly as simply as possible, so people can see them,” said Brooks Fuller, an assistant journalism professor at Elon University who is director of the North Carolina Open Government Coalition.

That’s the promise, at least, in North Carolina, where the website for Attorney General Josh Stein states that copies of attorney general’s opinions will be available online “approximately one week after issuance.” Yet none has been posted online since 2010.

Stein’s office told AP that no legal opinions have been issued since the Democrat took office in 2017, and it couldn’t speak for the previous administration, when Democratic Gov. Roy Cooper served as attorney general.

There are a variety of explanations for the differing degrees of government transparency among states. Some attorneys general may no longer be getting asked for legal advice, or perhaps are declining to provide it. But some may be drawing a line between what types of advice to make public.

In Wyoming, attorneys general have long distinguished between “informal” opinions they consider subject to attorney-client privilege and don’t release, and “formal” opinions which the attorney general and those advised agree in advance to disclose.

The Wyoming attorney general’s office hasn’t publicly posted a formal opinion since Dec. 11, 2018, when it concluded that some slot-machine-type games amount to “illegal gambling devices.”

“The attorney-client privilege belongs to our clients and only they can waive that privilege,” Chief Deputy Attorney General Ryan Schelhaas wrote in denying an AP records request for all Wyoming attorney general opinions since 2019.

He declined to look into whether attorney-client privilege had ever been waived to allow their release — though it had been in at least one instance last year.

Hill wrote at least two informal opinions in 2022 involving citizen ballot recounts similar to those in Arizona, Nevada and elsewhere since the 2020 election, when former President Donald Trump claimed without evidence that fraud cost him re-election.

Both of those legal opinions cast doubt on an ultimately prohibited citizen effort to recount by hand the 2020 vote in Park County, Wyoming, a deeply conservative hub of agriculture and tourism at the eastern approach to Yellowstone National Park.

“We had no intention of trying to change the vote or change the election or anything. We simply had citizens in this county that did not believe that machines were being used properly. We asked simply for the opportunity to prove or disprove it,” recount organizer Boone Tidwell said.

In an Aug. 4 opinion requested by Secretary of State Ed Buchanan, Hill wrote that completed ballots weren’t subject to release under Wyoming’s public records law. In a Nov. 10 opinion for Park County Attorney Bryan Skoric, Hill stated that Wyoming law didn’t allow outside-party recounts.

Hill gave both opinions to Skoric, who in turn gave both to AP, saying he had waived attorney-client privilege and provided the documents at a county commission meeting covered by the Cody Enterprise. However, both Tidwell and Renée Tafoya with Wyoming Rising, a Cody-based good-governance advocacy group opposed to the recount, said they hadn’t seen the documents since the issue died down last fall.

“Things happen and then you never hear about it again,” Tafoya said. “It creates kind of a sense of unease.”

Although Hill hasn’t publicly posted any formal opinions since Republican Gov. Mark Gordon appointed her in 2019, her six predecessors used to average about one a year from 2000-2018.

“There is no change in policy,” Gordon spokesman Michael Pearlman said in an email. “Both Governor Gordon and General Hill remain committed to transparent government and also respect attorney/client privilege as it relates to AG opinions.”

But Moats questioned whether there’s any substantive difference between formal and informal opinions, suggesting the decision not to release them is arbitrary and reflexive, especially when involving policy matters affecting people statewide.

He questioned the use of attorney-client privilege for a local official when the attorney general answers to a far wider population.

“The whole state is their constituents,” Moats said.

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Lieb reported from Jefferson City, Missouri. AP writer Gary D. Robertson contributed from Raleigh, North Carolina.