Energy & Environment Legal Institute v. Attorney General of New York

The New York Appellate Division affirmed rulings against organizations that sought to compel the search of the personal email account of then-Attorney General Eric Schneiderman pursuant to New York’s Freedom of Information Law (FOIL). The organizations sought email correspondence with any of eight specified individuals that contained keywords that the organizations said related to Schneiderman’s “decision to investigate those who disagree with him on climate change and climate change policies.” The Appellate Division said the organizations failed to establish a reasonable likelihood that the personal accounts contained responsive records and also found that there was “an insufficient showing that respondent used private accounts or devices to carry out his official duties which would warrant ordering respondent’s private email account(s), text messages or other private devices be searched.” The Appellate Division also affirmed the court below’s finding that the Attorney General did not waive the right to invoke the FOIL exemption for inter- or intra-agency materials for an email message sent to the Attorney General in which a third party was included in the “cc” field and instructed to print attached materials and deliver them to the Attorney General “in the absence of any expectation that the third party would review the substance of those materials or disclose them to others.”

Free Market Environmental Law Clinic and Energy & Environment Legal Institute filed a proceeding in New York Supreme Court seeking documents from the Office of the New York Attorney General (NYAG) under FOIL. The petitioners said that they sought the correspondence of the attorney general with eight individuals—six private parties, an NYAG employee, and the California attorney general. The groups said the requested correspondence “contained certain keywords relating to the Attorney General’s recent decision to investigate those who disagree with him on climate change and climate change policies.” The NYAG denied the groups’ FOIL request, citing FOIL exemptions for documents subject to attorney-client privilege and the work product doctrine and for intra-agency and inter-agency documents. In their lawsuit, the groups contended that NYAG did not have a reasonable basis for withholding the documents.