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

A New York trial court dismissed a Freedom of Information Law (FOIL) lawsuit against the New York attorney general in which the Energy & Environment Legal Institute sought to compel disclosure of email correspondence related to the attorney general’s investigation of ExxonMobil Corporation’s public statements regarding climate change. The court concluded the attorney general had properly invoked FOIL’s statutory exemptions for disclosures that would interfere with law enforcement investigations, for inter- and intra-agency materials, and for records “specifically exempted from disclosure by state or federal statute” (in this case, attorney-client communications that contained “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making”). The court said the attorney-client exemption applied whether the attorney was a government attorney or outside counsel retained by the attorney general.

Energy & Environment Legal Institute (EELI) filed a new proceeding against the New York attorney general under New York’s Freedom of Information Law (FOIL) seeking to compel release of correspondence of the attorney general and employees that “related to the Attorney General’s decision … to investigate those who disagree with him on climate change and climate change policies.” EELI said that the attorney general had improperly withheld documents in response to their FOIL requests on the basis of attorney-client privilege and the work product doctrine and also on the grounds that the disclosure would interfere with a law enforcement investigation and that the documents requested were inter- or intra-agency memoranda.