Advice from attorneys general remains secret in some states
CHEYENNE, Wyo. — 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-machinetype 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.