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 administration’s energy and environmental agencies to release a supposedly incomplete “comprehensive study” of how to meet the governor’s aggressive renewable energy goals.

The decision handed down by Justice Peter A. Lynch late last week was greeted as “a big victory for transparency and accountability in government” by the Empire Center’s executive director, Tim Hoefer.

“Time 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,” Hoefer said. “This decision would make it clear that such tactics simply won’t pass muster.”

Filed on Empire Center’s behalf by the nonprofit Government Justice Center, the lawsuit stems from Cuomo’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 “the most rapid, cost-effective, and responsible pathway to reach 100 percent renewable energy statewide.”

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 “has not yet been completed,” but added that the department “does possess the records that (Girardin had) requested.” 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 “does notpossess records” responsive to the request.

NYSERDA, meanwhile, initially responded to Girardin that the agency “has identified documents responsive to your request,” but added that the document should be withheld on grounds under an exemption for “inter- or intra-agency” data. When the Empire Center appealed that ruling, NYSERDA President Alicia Barton denied the appeal on grounds the records cited “were not in fact responsive” to the FOIL request.

Reviewing these exchanges and judicial precedents in similar cases, Justice Lynch wrote: “Based 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 exemption” under FOIL. 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.”

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

“With the help of the Government Justice Center, we will continue fighting in the appellate courts for the public’s right to know,” 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.