Eric Schneiderman is out as attorney general of New York, after resigning in disgrace two weeks ago. The resignation adds another tangle to the still-ongoing lawsuit between the state and Exxon Mobil. On Thursday afternoon, an appellate division of the New York Supreme Court heard arguments related to a Freedom of Information Law (FOIL) records request by Free Market Environmental Law Clinic (FMELC) for correspondence between Schneiderman and other environmental lawyers and activists. The attorney general’s office had already been served records requests. Yesterday’s hearing argued that the original trial court erred when it said that the state was not required to search Schneiderman’s non-official email accounts in response to the FOIL request.

“Contrary to the judgment of the trial court, FOIL requires the search of non-official email accounts when they are likely to contain official agency records,” wrote FMELC in its brief.

FMELC, an affiliated group operating as litigating counsel, has taken over the record request lawsuit from E&E Legal. Francis Menton, an attorney for the group, presented the case at the hearing.

Menton argued that if Schneiderman conducted any state business on his private account while serving as attorney general, these emails are part of the public record and subject to disclosure. The fact that he has since resigned his position does not change this.

In this, the case parallels arguments E&E Legal made last fall on a related case looking for emails from former Vermont Attorney General Bill Sorrell to Schneiderman and others about the ExxonKnew case.

The judge pressed back on FMELC, asking how an agency, in this case the New York attorney general’s office, could be required to search for records that it didn’t have access to or control over, in this case, private email accounts. The judge also expressed concern over the breadth of the search, suggesting that terms like “climate,” could just as easily bring up emails about a personal vacation that discussed the weather at a particular destination.

According to Menton, the key issue is the list of names used, which limit the search to only related documents.

At heart, the case revolves around how New York’s FOIL law should be read. According to FMELC, the statute loses force if it can be applied only to official state email accounts. This interpretation would push state business into personal accounts which would not be subject to a records request, the group argues.

“FOIL does not grant agencies the discretion to pick and choose which email accounts to search in a manner that excludes accounts acknowledged or known to be used, even only on occasion, for work-related correspondence. To the contrary, FOIL is to be ‘liberally construed’ to grant ‘maximum access’ to government records,” they wrote.

The attorney general’s office is arguing that the search parameters are overly broad and that emails sent on personal accounts are outside of the agency’s control. They argue that the FOIL request requires the office to search “where it has reason to believe records would be found.” To expand the search, FMELC would need to provide demonstrative reason to do so.

FMELC has presented a copy of an email sent to both Schneiderman’s personal and work emails as evidence that he used his personal account for state business. However, the attorney general’s office argues that since the email did go to his official account as well, it did not demonstrate that his personal account was used for solely business emails.

No decision was reached by the end of the hearing.

In both New York and Vermont, the attorneys general offices have been at the center of ongoing lawsuits as pro-transparency groups seek to discover communications between these offices and environmental groups about legal strategies for Schneiderman’s “climate RICO” case against Exxon.

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