NY Attorney General Accused of Skirting Public Records Law

Free market think tank sues Dem official who withheld key documents in anti-Exxon campaign

Eric Schneiderman
Eric Schneiderman / AP
August 31, 2016

A free market nonprofit group filed a lawsuit against New York’s chief law enforcement officer on Wednesday accusing him of withholding documents from the public in violation of the state’s open records laws.

The Competitive Enterprise Institute accused New York attorney general Eric Schneiderman of improperly blocking the release of an agreement with other state attorneys general to share information and resources in their ongoing legal campaign against oil company ExxonMobil.

The lawsuit, filed in New York’s Supreme Court, is the latest development in a months-long legal battle between Scheinderman’s team of Democratic state officials and Exxon and public policy groups to which it has donated.

CEI was named in a subpoena against Exxon served by Schneiderman’s office last year. It was also the target of a since-withdrawn subpoena from the attorney general of the U.S. Virgin Islands, one of nearly 20 state AGs collaborating with Schneiderman in his legal campaign against the oil company.

In pushing back on that campaign, CEI sought copies of a "common interest agreement" between Schneiderman and other AGs working on the effort.

The New York AG’s office denied its open records request, claiming it imperiled ongoing enforcement proceedings and would compromise the integrity of its legal strategy by exposing confidential attorney-client communications.

CEI’s lawsuit is challenging that decision.

"None of the reasons Schneiderman claimed for withholding these documents are legitimate under New York law," said Sam Kazman, the group’s general counsel, in a statement announcing the new lawsuit.

"The public deserves to know what this AG, and the other AGs cooperating with him, agreed to when it came to targeting their political opponents, and that’s why we sought the Common Interest Agreement in the first place," Kazman said.

Schneiderman’s office did not immediately respond to a request for comment.

That office has faced criticism from others involved in the Exxon fight over efforts to skirt New York’s public records laws.

Chris Horner, a senior legal fellow at CEI and an attorney with the Energy & Environment (E&E) Legal Institute, has pursued the common interest agreement for months. He said Schneiderman and his allies are "trying to write themselves out from freedom of information laws their legislatures have written them into."

CEI claims that attorney-client privilege does not protect the common interest agreement because the document was "shared by the Attorney General with non-New York state agencies or employees."

E&E attorney Chris Mandelbaum previously pointed to Schneiderman’s collaboration with the Union of Concerned Scientists, which was party to a since-revised version of the common interest agreement, as evidence that it should have been available under the state’s open records laws.

"The AGs may investigate, but how can outside groups like the Union of Concerned Scientists have a role in that or ensuing litigation? They can’t," Mandelbaum said in an interview in July. "These outside groups also don’t share a similar interest with the states."

Its circulation outside of New York’s state government also means that it is not protected under open records exemptions that bar the release of communications between state agencies.

Schneiderman’s office insists it is preparing litigation against Exxon, but the attorney general recently made comments that suggested he has changed his legal approach to the matter. Initially aimed at the company’s prior statements, more than a decade old, to shareholders about the dangers of climate change, he now says it has to do with its current projects of future climate change.

Neither Schneiderman nor any of the other AGs involved in the effort has brought charges against Exxon, and CEI said it does not believe any actually will.

The group "asserts on information and belief that the requested records were not prepared for or in anticipation of litigation," it said in its complaint on Wednesday.

Published under: Exxon