Matter of Competitive Enterprise Institute v. Attorney General of New York

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.