NYSERDA Must Reveal Secret Study, Judge Rules

Ruling in favor of the Empire Center, a state Supreme Court judge in Albany has ordered the Cuomo administrationโ€™s energy and environmental agencies to release a supposedly incomplete โ€œcomprehensive studyโ€ of how to meet the governorโ€™s aggressive renewable energy goals.

The decision handed down by Justice Peter A. Lynch late last week was greeted as โ€œa big victory for transparency and accountability in governmentโ€ by the Empire Centerโ€™s executive director, Tim Hoefer.

โ€œTime and time again, we have seen agencies try to dodge FOIL requirements hiding behind various exemptions and using stall tactics to conceal information and data they clearly possess,โ€ Hoefer said. โ€œThis decision would make it clear that such tactics simply wonโ€™t pass muster.โ€

Filed on Empire Centerโ€™s behalf by the nonprofit Government Justice Center, the lawsuit stems from Cuomoโ€™s January 2017 promise to have the New York State Energy Research and Development Authority (NYSERDA) and the state Department of Environmental Conservation (DEC) produce a study identifying โ€œthe most rapid, cost-effective, and responsible pathway to reach 100 percent renewable energy statewide.โ€

In April 2019, more than two years after Cuomo first announced it, policy analyst Ken Girardin of the Empire Center filed a Freedom of Information Law (FOIL) request with NYSERDA and the DEC, requesting a copy of the study. A May 30 reply to Girardin claimed the study โ€œhas not yet been completed,โ€ but added that the department โ€œdoes possess the records that (Girardin had) requested.โ€ When Girardin appealed, noting that statistical or factual tabulations arising from the study were not exempt from release, the DEC denied his appeal on the ground the agency โ€œdoes notpossess recordsโ€ responsive to the request.

NYSERDA, meanwhile, initially responded to Girardin that the agency โ€œhas identified documents responsive to your request,โ€ but added that the document should be withheld on grounds under an exemption for โ€œinter- or intra-agencyโ€ data. When the Empire Center appealed that ruling, NYSERDA President Alicia Barton denied the appeal on grounds the records cited โ€œwere not in fact responsiveโ€ to the FOIL request.

Reviewing these exchanges and judicial precedents in similar cases, Justice Lynch wrote: โ€œBased on the conflicting positions taken by (DEC and NYSERDA), it is manifest that [they] have failed to meet their burden of proof to establish an exemptionโ€ under FOIL. Justice Lynch also noted that Bartonโ€™s sworn affidavit contained a โ€œmisrepresentationโ€ of her actual testimony to legislative leaders, and that it โ€œbegs the question as to whether the study is final but undisclosed.โ€

Lynch ordered the two agencies to hand over the records and also to cover Empire Centerโ€™s court costs. DEC and NYSERDA responded Tuesday by filing notice of appeal, which will allow them to continue withholding the records for now.

โ€œWith the help of the Government Justice Center, we will continue fighting in the appellate courts for the publicโ€™s right to know,โ€ Hoefer said.

The Empire Center, based in Albany, is an independent, not-for-profit, non-partisan think tank dedicated to promoting policies that can make New York a better place to live, work and raise a family.

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