News Coverage on Public Information
Cuomo control of information includes screening, redaction of records at State Archives Read more: http://www.timesunion.com/local/article/Cuomo-control-of-information-includes-screening-3725932.php#ixzz23ST9RV1bJimmy Vielkind
ALBANY — For those seeking the history of Andrew Cuomo's tenure as attorney general through the State Archives, be advised: Members of the governor's staff may go over the material before you arrive, review it after you leave and remove what they don't think should be seen.
A limited number of documents relating to Cuomo's single term as attorney general are stored at the Archives, a branch of the State Education Department, after being transferred from the jurisdiction of the Office of Attorney General. But in a break with past procedure, a Freedom of Information Law request by the Times Union for attorney general records from 2007 to 2010 prompted top Cuomo aide Linda Lacewell to screen documents before their release.
Dozens of folders in the Archives' custody were pulled by Lacewell, a special counsel to the governor, who spent nearly eight hours in the public records room, according to sign-in sheets released by the archives.
Months after the paper made the request, officials made available 30 boxes of material in addition to documents from a closed lawsuit. Most of the material was routine, including news releases announcing drug busts and reports on cybercrime and inmate recidivism.
Of course, politicians often exaggerate in their public utterances, but governmental records usually provide a more unvarnished narrative. Cuomo, like many politicians, has worked to tightly control the flow of information, managing access to senior officials and reducing the volume of records that are created.
While the governor took office vowing to run an administration that is "the most transparent and accountable in history," he and his team are noted for their meticulous management of information.
This tendency appears to extend to the Archives. Lacewell, a top deputy to Cuomo at the attorney general's office, removed several documents from the case files after reporters had seen them. She extracted the daily calendars and notebooks of Ellen Biben, who managed the attorney general's Public Integrity Bureau for Cuomo before becoming the state's top ethics watchdog this year, even though many of the items in the schedules appeared to be mundane. Lacewell even pulled a presentation on how to improve traffic on the office's website.
The governor's press secretary, Josh Vlasto, joined Lacewell at the Archives when he and Lacewell were contacted after reporters photocopied some documents that had been authorized for public viewing after Lacewell's initial screening.
State Archivist Christine Ward told the Times Union that she learned that materials had been made public in error, and that she was responsible for the second round of extractions.
Access to records in the Archives is usually managed according to the state Freedom of Information Law, which allows for the redaction of materials circulated between state agencies, and documents that infringe on personal privacy or are deemed to be an attorney's work product.
But the exemptions are subject to interpretation, and the selection of the interpreter matters.
In response to questions submitted to Vlasto about the Archives process, the administration provided a nearly 1,300-word letter signed by Director of Communications Richard Bamberger that vigorously defended Lacewell's review and questioned the Times Union's "fixation" on Cuomo's records management.
"Linda is familiar with the records from her service as Special Counsel to Attorney General Cuomo and she is therefore best suited to identify and preserve the confidentiality and privacy interests of consumers, whistle-blowers, and other complainants, as well as attorney-client privilege, work product, sensitive investigative materials and other exempt categories," Bamberger wrote. "Sending records to the Archives is about preservation for future generations, not access for today."
The governor, he added, began the transfer of his records to the Archives while he was attorney general, "and the production is consistent with that of his predecessor as attorney gGeneral."
The Times Union reported in March that Cuomo's aides had sent 30 boxes of attorney general records to the Archives, a process that began while he was still in that office. Eliot Spitzer, who like Cuomo served as attorney general before he was elected governor, waited until assuming the higher office to send over old records. So far, Spitzer has sent 1,022 boxes.
Cuomo's schedule records, which had been sought by the Times Union under the Freedom of Information Law, were not sent to the Archives. Instead, they were discarded.
Bamberger's statement said that while Spitzer's aides did not pre-review his materials, Cuomo's aides will handle that task for the current governor. They are now combing through 400 boxes of Cuomo's correspondence as attorney general and "other records will be identified and produced to the Archives as appropriate."
This process of pre-review is "very concerning," said Lawrence J. Hackman, the New York archivist from 1981 to 1995 and a nationally recognized expert on archives policies.
"I don't remember anything like this ever happening," said Hackman, who left Albany to become director of the Truman Presidential Museum and Library in Independence, Mo. "I don't remember an instance of that kind of direct intervention and then removal of records that were accessible after the fact. It's certainly very concerning, and it drives me toward the conclusion that ... if you don't have a statute to hold up to them in regard to gubernatorial records, you don't have a chance."
Hackman said Gov. Mario M. Cuomo and the current governor have resisted turning over records. Gov. George Pataki vetoed legislation that would have mandated that governors send their papers to the State Archives, as did Gov. David Paterson just before he left office in 2010 — at the urging of Andrew Cuomo, according to a Paterson aide. Cuomo's office denies any such lobbying took place.
By statute, the Archives is the final home for records from the Office of Attorney General, and files from Bob Abrams, Dennis Vacco and Spitzer are all available. The only written guidance governing the transfer and management of OAG records comes from a 2006 memorandum of understanding signed by Ward and an aide to then-Attorney General Spitzer. The document, provided by the Archives to the Times Union in March, recognizes the need for some external review, but delegates the task to OAG staffers.
That would seem to place Attorney General Eric Schneiderman in charge of the documents.
"We are working cooperatively with the governor's office to facilitate the transfer of thousands of documents to the State Archives," said Jennifer Givner, a spokeswoman for Schneiderman. She refused to elaborate.
Tom Dunn, a spokesman for the Archives, said the 2006 memorandum "applies to the papers of Attorney General Spitzer."
Neither the Archives nor Cuomo's aides provided a new set of guidelines.
But Robert Freeman, chairman of New York's Committee on Open Government, said the Cuomo administration's approach was permissible under New York laws.
"I don't think that that's unusual — for somebody who is not completely familiar with the impact of disclosing records to go to someone who is more or less familiar," he said. "It makes perfect sense to do that."
According to the Archives sign-in sheets, Lacewell visited five times in the days after the Times Union filed a formal FOIL request on March 30. (An earlier request addressed to the Education Department has been ignored.)
The Times Union visited several times in subsequent weeks to review the materials that were released, always with explanation by James Folts, Archives head of references services, and in compliance with staff procedures.
On May 17, reporters left with a copied page from Biben's notebook as well as a document following up on the attorney general's probe of the May 2007 state aircraft trips made by former Senate Majority Leader Joseph L. Bruno, an element of the Spitzer-era scandal often referred to as Troopergate.
In reviewing which copies were made, top Archives officials said they discovered that the documents were provided in error. Lacewell and Vlasto returned to the facility on May 21 for several hours. The same day, the Times Union was told it could not review any of the attorney general records because they were undergoing a second review. The Archives personnel did not reveal that the governor's staff was doing that work.
Cuomo's aides removed more files, including all the documents reporters had made copies of as well as Biben's schedules and notes, the website presentation and an analysis of Suffolk County politics provided to Cuomo ahead of a trip to the attorney general's bureau there. Reporters were eventually allowed to see the reduced set of material.
Freeman said this process of after-the-fact withholding is permissible if the relevant documents were disclosed in error, and if they can be reasonably withheld under FOIL's parameters.
The Times Union is appealing the Archives' handling of the request.
Earlier this month, Cuomo's aides finalized a records management plan detailing which administration papers will be preserved for the future, and which will be discarded. Cuomo is the first governor to adopt a policy before the final weeks of his administration.
The policy does not say whether the records of his gubernatorial administration will go to the State Archives or to a private facility.
"We need a clear standard, we need an objective standard that covers all offices," said Susan Lerner, executive director of the good-government advocacy group Common Cause. "It should not be up to any elected official to determine what is seen and what is not seen. It's the historians who should guide us."