Description: Proceeding seeking to compel disclosure by the New York Attorney General of common interest agreements in connection with climate change-related investigations.
Matter of Competitive Enterprise Institute v. Attorney General of New York
Filing Date Type File Action Taken Summary 05/03/2018 Memorandum Download Award of attorney fees to FOIL requestor affirmed. New York Appellate Court Upheld Order Requiring Attorney General to Pay Competitive Enterprise Institute’s Attorney Fees in Freedom of Information Suit. The New York Appellate Division affirmed an order awarding costs and attorney fees to the Competitive Enterprise Institute (CEI) in CEI’s lawsuit against the New York attorney general under New York’s Freedom of Information Law (FOIL). CEI brought the lawsuit after the attorney general’s office denied a request for any climate change “common interest agreements” entered into by New York and other state attorneys concerning the sharing of information and other matters related to ongoing and potential climate change investigations. The New York attorney general unsuccessfully sought to dismiss the lawsuit as moot based on the public release of a common interest agreement by another party to the agreement. A trial court denied the motion, required the attorney general to provide further explanation, and eventually ordered payment of $20,377.50 in attorney fees as well as costs. The Appellate Division agreed that an award of fees was warranted, concluding that CEI had substantially prevailed even though the common interest agreement—the only document responsive to CEI’s request—had already been in the public domain. The Appellate Division also said there was not a reasonable basis for withholding the common interest agreement as attorney work product. The Appellate Division reduced the amount of the fees award to $16,312.50 because it did not agree with the court below’s assessment that the attorney general “stonewalled” CEI during the FOIL process.
Competitive Enterprise Institute v. Attorney General of New York
Filing Date Type File Action Taken Summary 04/19/2017 Decision Download Decision/order issued awarding attorney fees to petitioner. New York Court Awarded Attorney Fees to Competitive Enterprise Institute in FOIL Lawsuit Against Attorney General. The New York Supreme Court awarded more than $20,000 in attorney fees and litigation costs to the Competitive Enterprise Institute (CEI), which brought a lawsuit against the New York Attorney General under the New York Freedom of Information Law (FOIL). CEI filed the proceeding after the Attorney General denied its FOIL request for common interest agreements with private parties and other state attorneys general regarding climate change investigations. In awarding fees to CEI, the court cited its November 2016 decision in favor of CEI and said that law of the case precluded further examination of the Attorney General’s arguments that CEI had not substantially prevailed or had not met statutory requirements for eligibility for fees. The court said that the Attorney General had “stonewalled” rather than provide the “straightforward response” to which CEI was entitled and that an award of substantial attorney fees was “particularly appropriate” to promote FOIL’s purpose and policy. 11/21/2016 Decision Download Decision and order issued. New York Court Said Attorney General’s Response to Competitive Enterprise Institute Request Did Not Comply with Freedom of Information Law. A New York Supreme Court agreed with the Competitive Enterprise Institute (CEI) that the New York Attorney General had not complied with its obligations under the Freedom of Information Law (FOIL) in response to CEI’s request for common interest agreements with private parties and other state attorneys general regarding climate change investigations. The court indicated that the publication by a third party of a common interest agreement between state attorneys general did not moot CEI’s claims, and ordered the New York Attorney General to provide more detail regarding its search for common interest agreements involving non-state parties. The court also said that the New York Attorney General had the burden of demonstrating that FOIL exemptions applied to any responsive records that it determined were not subject to disclosure. The court also ruled that CEI was entitled to attorney fees. 08/31/2016 Petition Download Petition filed. Competitive Enterprise Institute Asked New York Court to Order Attorney General to Produce Climate Change Common Interest Agreements. Competitive Enterprise Institute (CEI) filed a proceeding in New York State Supreme Court under the New York Freedom of Information Law (FOIL) seeking to compel the New York Attorney General (NYAG) to produce documents in response to CEI’s request for common interest agreements entered into by the NYAG during a specified period in 2016. CEI said it believed that the NYAG had shared information, consulted, and communicated with private parties and other attorneys general regarding climate change policies and possible investigation of entities opposed to climate policies. CEI’s FOIL request came after ExxonMobil confirmed in November 2015 that it had received a subpoena from the NYAG and after the NYAG participated in a press conference in March 2016 with other state attorneys general to announce a coalition to pursue climate change-related initiatives. The NYAG denied CEI’s FOIL request, asserting that the records were exempt from disclosure because they were shielded by attorney-client privilege and the work product doctrine, were compiled for law enforcement purposes, and were inter-agency or intra-agency materials.