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.

Theย decisionย 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€œdoesย 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€œdoesย 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.ย Justice Lynch also noted that Barton’s sworn affidavit contained a “misrepresentation” of her actual testimony to legislative leaders, and that it “begs the question as to whether the study is final but undisclosed.”

Lynchย orderedย 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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