The ACLU, the Clinic and Cornell Dolan filed a public records lawsuit in October 2020 on behalf of the Vermont Journalism Trust to obtain additional records related to an EB-5 scandal that VTDigger has been covering for the past several years. The State of Vermont again sought to withhold EB-5 records, citing the “litigation exemption” under Vermont’s Public Records Act – an exemption state agencies have relied on repeatedly to prevent public disclosure. 

In August 2020, the State produced 965 documents it was withholding under the litigation exemption after the Court ordered it to produce to the Vermont Journalism Trust documents that had already been produced by the State to the plaintiffs in a separate litigation brought by investors. The State withheld 75 documents from its production as privileged. On October 26, 2021, the Vermont Journalism Trust filed a motion to compel production of an index or privilege log identifying the withheld documents, describing the basis for denial, and providing the reasons and supporting facts for denial. Clinic student Andrew Gelfand argued the fully-briefed motion on behalf of the Vermont Journalism Trust on February 1, 2022. Clinic student Lauren Kazen drafted the motion to compel papers and Clinic students Haylei John, Brian Marte, Michael Mills, Soo Min Ko and Melissa Muse worked on the matter.

Since 2012, the Vermont Journalism Trust, operating as VTDigger, has reported on the State’s oversight of the EB-5 Immigrant Investor Visa Program, a federal program designed to create jobs and stimulate foreign capital investment in low-income regions. In August 2020, VTDigger requested documents from the Agency of Commerce and Community Development (“ACCD”), which operated the Vermont EB-5 Regional Center, to understand why the State continued to endorse the solicitation of investors for EB-5 projects despite increasing evidence of fraud. ACCD denied that request on September 29, 2020, resulting in this lawsuit.

The EB-5 program allows foreign entrepreneurs who make specified financial investments in the United States to apply for lawful permanent resident status. In April 2016, the State and the federal Securities Exchange Commission filed civil suits against several individuals and corporate entities alleged to have misused, in a “Ponzi-like” scheme, more than $200 million of these investor funds marked for projects in Vermont.

This lawsuit is just one in a series of cases brought by Vermont Journalism Trust in its ongoing investigation of the EB-5 scandal. In 2019, Timothy Cornell of Cornell Dolan, the Clinic, and Tarrant, Gillies, Richardson & Shems LLP represented the Vermont Journalism Trust in similar litigation that resulted in the release of documents the State had previously withheld.  In 2016, the ACLU & Mr. Cornell represented the Vermont Journalism Trust in public records litigation after the State withheld other EB-5 records, claiming that they fell within an exemption for records that “are relevant to litigation to which the public agency is a party of record.” That lawsuit was settled in 2017, after the state finally agreed to release the records. And, more recently, the Clinic, Mr. Cornell, and the ACLU filed an amicus brief in federal court on September 15, 2021 that successfully argued for the unsealing of sentencing documents.

Update: On April 27, 2021, counsel for the Vermont Journalism Trust cross-moved for summary judgment in response to the State's motion for summary judgment.

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