Court Deals Another Blow to NY AG Schneiderman in Open Records Case

Documents were related to broad effort to investigate energy companies for alleged deception on climate change

New York State Attorney General Eric Schneiderman / Getty Images

A New York appellate court again ordered that state’s top cop to pay thousands of dollars in attorney’s fees for improperly denying a request for documents under the state’s Freedom of Information Law.

The unanimous decision from a panel of judges on Thursday supported two previous losses in the same case for Attorney General Eric Schneiderman in which the free-market think tank the Competitive Enterprise Institute sought documents related to a multi-state effort to investigate energy companies for allegedly profiting by "creating misperceptions" about climate change.

Schneiderman announced in March 2016 a cooperative effort with other state attorneys general to investigate fossil-fuel energy companies for their speech related to climate change, shortly after which CEI requested related documents.

Schneiderman's office originally withheld those documents requested, prompting the original lawsuit, which Schneiderman lost. When the think tank sought attorney's fees, the AG lost for a second time.

The panel of judges rolled back slightly the amount the AG's office would have to pay to CEI's lawyers, but nevertheless concluded that they "did not establish a reasonable basis for denying this [Freedom of Information Law] request," and agreed on an award of just over $16,000.

"Perhaps it shouldn't surprise us that the ringleader of a group dedicated to closing off public debate was himself not too keen on following the state freedom of information law," said CEI General Counsel Sam Kazman in a statement. "The court upheld CEI on the merits and let most of the award stand."

As Kazman's statement illustrates, critics of the Schneiderman-led investigation say he's using his law enforcement powers to try and police debate and shut off free speech from corporate actors about climate change. The AG has rebutted that by saying the First Amendment does not protect fraud.

The developments come at a time when the New York AG’s office is also fighting off an open records lawsuit from another free-market outlet, E&E Legal, which is seeking emails also related to other parts of Schneiderman’s climate investigations.

Schneiderman's announcement drew scrutiny from House Republicans on the Science, Space and Technology that year, as they fired of a letter to the New York AG and others.

"On March 29, 2016, you and other state attorneys general—the self-proclaimed ‘Green 20'—announced that you were cooperating on an unprecedented effort against those who have questioned the causes, magnitude, or best ways to address climate change," the letter said. "The Committee is concerned that these efforts to silence speech are based on political theater rather than legal or scientific arguments, and that they run counter to an attorney general’s duty to serve ‘as the guardian of the legal rights of the citizens' and to ‘assert, protect, and defend the rights of the people.'"

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