Court denies group’s request to see statewide energy plan

ALBANY — In an unusual twist, a mid-level appeals court has overturned a ruling that would have forced the state’s major energy-efficiency agency to hand over a key study it was doing on how to reach the state’s carbon reduction goals as set out by Gov. Andrew Cuomo.

As well as providing a look at various interpretations of New York’s public records law, the case also touches on the difficulty of planning a broad energy policy amid constantly changing energy prices. Changing prices were cited as a reason for the report’s delay during the past three years.

A state appellate division panel on Nov. 25 ruled that the New York State Energy Research and Development Authority (NYSERDA) did not have to provide their “comprehensive study” to the Empire Center, a fiscally conservative government watchdog group that had sought the document under the state’s Freedom of Information Law.

Cuomo had ordered NYSERDA to “to determine the most rapid, cost-effective, and responsible pathway to reach 100% renewable energy statewide.”

That forthcoming study, according to court papers, was detailed in a January 2017 press release from NYSERDA.

The release caught the attention of lawmakers, who by 2018 and 2019 had been asking to see the report. One reason it wasn’t ready, according to testimony from NYSERDA, was that various energy prices were changing.

“They said there had been changes in the market and they wanted to make revisions,” said Cameron MacDonald, the attorney who sued for the records on behalf of the Empire Center.

When the Empire Center initially requested the report in April 2019, they were told it was still being worked on and, furthermore the study was exempt from disclosure under state Freedom of Information Laws because a government agency can withhold records that are “inter-agency or intra-agency materials.”

The Empire Center had also requested the study from the state Department of Environmental Conservation but was told they didn’t have it since it hadn’t been completed.

After being rebuffed, the Empire Center went to state supreme court in Albany where NYSERDA was ordered to turn over the document.

But NYSERDA appealed the trial court ruling and the appellate division concluded that they could withhold it since the study hadn’t been completed.

“Although there may be some ambiguity in petitioner’s request, leaving room for different interpretations, a fair reading of the request can certainly lead to the plausible interpretation that petitioner was solely asking for a completed study,” the judges reasoned.

MacDonald said they were considering an appeal of the decision. The appellate decision, he believes, “is encouraging bad behavior.”


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