CEI v. The Attorney General of New York

In May 2016, CEI requested copies of all “common interest agreements” that were made with or that mentioned other state attorneys general or certain environmental activists from New York Attorney General Eric Schneiderman. The request was made under New York’s Freedom of Information Law (FOIL). The common interest agreements at issue were the organizing documents behind the AG Schneiderman’s multi-state coalition to shut down free speech about the climate science debate. More on this campaign can be found at cei.org/climatesubpoena.

AG Schneiderman’s office denied the request, claiming that the documents were exempt from disclosure. CEI challenged the denial in a lawsuit, CEI v. The Attorney General of New York, filed in New York State court on August 31, 2016. AG Schneiderman moved to dismiss the case. Among his claims was that the lawsuit was moot because a copy of the agreement, released by some other source, had become available on the Internet.

On November 22, 2016, the court ruled in favor of CEI, holding that CEI was entitled to an official copy of the agreement. It characterized AG Schneiderman’s claims as “nothing more than a parroting of statutory language, and thus a complete failure of its obligation ‘to fully explain’” its refusal to produce the document. The court also invited CEI to file for attorney fees under the New York FOIL.

When CEI submitted its attorney fee petition, the AG Schneiderman challenged it, and also took issue with the court’s FOIL ruling. On April 19, 2017, the court granted CEI’s fee petition in large part, and once again criticized AG Schneiderman’s failure to comply with New York’s FOIL.

AG Schneiderman appealed the court’s fee award to the New York Supreme Court (Appellate Division, Third Department). The five-judge panel heard argument on March 27, 2018.

On May 3, 2018, the court delivered a unanimous ruling that largely upheld the lower court’s fee award. The appellate court rejected the AG’s claim that the agreement contained confidential attorney work product, because the agreement did not contain any legal analysis; instead, it dealt with global warming issues that were repeated in a press release issued by the AG himself. The court did, however, reject the trial court’s characterization of the AG as having “stonewalled” on releasing the document. It reduced CEI’s attorney fee award by 20 percent.

CEI attorney Anna St. John said the following about the decision: “The Appellate Division is the latest court to reject the Attorney General’s bogus excuses for hiding information from the public. We hope this ruling will encourage the Attorney General to be more transparent about his office’s activities.”