News Coverage on Public Information

New York Times

Cuomo’s Archive as Attorney General, Self-Edited

Danny Hakim
Monday, July 23, 2012

ALBANY — Gov. Andrew M. Cuomo’s administration, already drawing attention for its focus on secrecy, has now begun editing his record as New York attorney general, sending aides to the state archives to remove key documents from public view.

The aides have declared off limits all of Mr. Cuomo’s files related to a 2007 inquiry into the use of the State Police for political purposes, which was one of the most prominent public corruption investigations he oversaw as attorney general. And, in a change of practice, the administration is also pre-emptively reviewing all documents sent by the governor to the archives and removing anything it deems sensitive from public view.
The review of the archived material comes at a time when Mr. Cuomo is being much discussed as a 2016 presidential candidate. Many public figures with national ambitions have been concerned about being tripped up by old documents; when Mitt Romney left the governorship in Massachusetts, his administration wiped all e-mail from the government server and allowed his top aides to buy their work hard drives, so no electronic record remained.
Mr. Cuomo’s office defended its conduct, saying that the archives mistakenly made public documents that should have been private, and that it has simply been correcting those errors. It said that the documents related to the police inquiry — known asTroopergate — were exempt from public disclosure because they were “work product,” or protected by attorney-client privilege, and that researchers could find some of the documents through the files of other agencies, like the Albany district attorney.
But one of Mr. Cuomo’s predecessors as both governor and attorney general, Eliot Spitzer, said he was “deeply troubled” by the decision to withhold Mr. Cuomo’s state trooper files from the public. Mr. Spitzer, a fellow Democrat, has a personal stake in the issue: his administration was the target of the investigation, and he wants the documents to be kept public. Some of Mr. Spitzer’s own files on the matter are available at the archives.
Mr. Spitzer called those files “documents that should be in the public domain that would reflect upon the underlying integrity of a report that I always viewed to be fundamentally flawed.”
Mr. Cuomo’s office issued a sharp retort, saying, “This is just Eliot and his minions still trying to vindicate Eliot.” In a second statement, it added, “The governor’s office does not respond to Eliot Spitzer, but any first-year lawyer knows it is important to protect confidential informants and to preserve the attorney-client privilege.” His office also said numerous investigations into the matter “concluded the same way: Spitzer abused his office and the people of the state.”
The Cuomo administration’s actions to restrict access to the archives of his attorney general files became public when reporters for The Times Union of Albany began visiting the archives to review the records from his tenure as attorney general. The reporters noticed that, after they photocopied documents in the files, the documents disappeared; they later determined that Mr. Cuomo’s special assistant, Linda Lacewell, and spokesman, Josh Vlasto, had visited and removed the papers from the public files.
State guidelines require attorneys general to turn over their records to the archives. In the past, archivists have typically determined case by case whether to allow researchers access to files, in consultation with the current attorney general, and sometimes in consultation with the lawyers who handled the cases. Mr. Cuomo’s office said that, in an effort to streamline the process, it had chosen to review all documents now, rather than waiting for researchers to seek access and then allowing archivists to begin the time-consuming process of reviewing them.
The state archives, which is a division of the State Education Department and is not controlled by the governor, has provided inaccurate information about the contents of its holdings. In late June, the archives told The New York Times, in writing, that it had no documents from Mr. Cuomo related to the inquiry. The document was a response to a Freedom of Information Law request; the archives and the governor’s office now acknowledge that the response was incorrect, but say it was issued in error.
In the course of defending its handling of archived documents, the administration has criticized The Times Union. In a letter to the paper, Mr. Cuomo’s communications director, Richard Bamberger, said The Times Union was working on a “manufactured story” and was trying to “create controversy.” Mr. Bamberger accused the paper of trying to atone for its role in the history of the trooper inquiry; in 2007, an article published in the paper set off the controversy, and some suggested that the paper had been used by Mr. Spitzer for political purposes.
“We are aware of your efforts to generate doubt about the validity of the Troopergate report, which was embarrassing to The Times Union,” Mr. Bamberger’s letter said, adding, “But it would be shameful for you to compound your prior errors by making use of your news pages to try to rehabilitate your own image by manufacturing doubt about professional work done by career prosecutors in the public interest.”
The Cuomo administration has seemed particularly concerned about a memorandum written by Ms. Lacewell, summarizing the investigation after it was over. The Times Union obtained a copy of the memorandum before Mr. Cuomo’s aides removed it from public view; the administration said it was a protected document because it was a “work product,” and The Times Union has not published it.
Rex Smith, the editor of The Times Union, said, “Our goal first was to do a story about what we thought was a significant departure from traditional practice in terms of access to documents in the archives.” He said the paper was still weighing whether to do an article about the memo.
On Monday, state officials struggled to explain why The Times was misled by the archives about the presence of records on the inquiry. Dennis Tompkins, a spokesman for the archives, said officials at first thought they did not have any records related to the matter, because no records were labeled as such.
The Cuomo administration, however, informed the archives that its response to The Times’s Freedom of Information request had been in error two weeks ago. Neither the governor’s office nor the archives corrected the error.
“I guess our people were in the process of working up a further response to you, but in light of all the phone calls, they decided to hold off,” Mr. Tompkins said.
The dispute over the archives is the latest example of the Cuomo administration’s efforts to manage information. Officials communicate with untraceable BlackBerry messages, and Freedom of Information requests often face long delays.



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