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Fred LeBrun: What Is It Cuomo Is Hiding?
The Times Union's Jimmy Vielkind last week wrote that 15 months after leaving behind the state's top lawyer job, only a trickle of the papers, correspondence and documents produced during those years, about 10 boxes, have found their way to the State Archives, where by law all of the AG's papers are supposed to wind up — the public papers of an elected official. Access to even that small cache has been slow in coming through repeated delays of a routine Freedom of Information request. The bulk of those papers is nowhere in sight.
What is it Cuomo is hiding?
Fred LeBrun, Commentary
Published 08:41 p.m., Saturday, March 24, 2012

With his failure to open to public scrutiny his years of records and correspondence as state attorney general, our governor invites us to wonder what it is he has to hide.

The Times Union's Jimmy Vielkind last week wrote that 15 months after leaving behind the state's top lawyer job, only a trickle of the papers, correspondence and documents produced during those years, about 10 boxes, have found their way to the State Archives, where by law all of the AG's papers are supposed to wind up — the public papers of an elected official. Access to even that small cache has been slow in coming through repeated delays of a routine Freedom of Information request. The bulk of those papers is nowhere in sight.

By contrast, after Eliot Spitzer became governor, within a few months of taking office, 919 boxes from his years as AG were plopped into the archives, where they are grist for perusal and reflection today. If you want to know who Spitzer's jogging partners were during his AG tenure, a bonafide researcher or accredited reporter can do that. More importantly, you can also find background and correspondence on a vast array of public policy questions and legal issues.

Spitzer is a crucial comparison because Cuomo, in failing to release his records, seems to be hiding behind a thin cover provided by an agreement between the state archives and the AG's office, an agreement made during the Spitzer years. It pertains to justifiably excluding from public view privileged lawyer-client material. So arguably everything has to be sifted through to pull those records out. But that's largely a dodge, as Spitzer's 919 boxes clearly prove. Spitzer was as affected by that agreement as Cuomo.

So why are we suspicious of Andrew Cuomo in this matter?

Because of the way he does business. The governor is thoroughly steeped in hypocrisy when it comes to transparency. The more he utters the word, the less he pays attention to it. It comes as no surprise that the independent Center for Public Integrity in Washington, D.C., ranks New York 36th among the states in public accountability. Cuomo's is the least transparent, most micromanaged New York gubernatorial administration in memory. Combine that with a style that would be charitably called ruthless assertiveness, and we have every reason to be suspicious.

After all, during the Spitzer and Paterson years an ambitious and driven Attorney General Andrew Cuomo was in the shadows and hovering around the edges of some of the most mercurial times state government has ever experienced.

By nature, Cuomo is not a politician who watches passively as the scene drifts by. For better or worse — and we've seen both — he's an action figure, prone to intrusion.

Take, for example, the Troopergate investigation and its aftermath. AG Cuomo was given a broad mandate by Governor Spitzer to investigate who if anybody did wrong in that affair, a mandate the AG narrowed mostly to an investigation of Spitzer and his staff. Senate Majority Leader Joe Bruno's misuse of public resources for personal and political gain, the other side of the issue, seemed to get a lot less scrutiny than Spitzer. Cynics at the time, and since, have suggested that was because Andrew Cuomo was not running for Senate Majority Leader. Then there were two investigations of Governor Paterson by Judith Kaye, retired chief judge of the Court of Appeals. Did Cuomo try to insert himself into those? How much of Paterson's administration was actually being run, or influenced, by Cuomo's office, which was also the suspicion at the time.

Are there backstories and revelations that shed light on Andrew Cuomo's motivations and actions in those archives? That's a wide-open maybe. We'll never know until we have a chance to look. Logically, both a political officer and a legal one will have sifted through and removed anything embarrassing or too enlightening in those archives before they are placed on the State Museum storage shelves. There's hardly any way to prevent that, no matter what the law is. But considering the volumes of material involved, there's always a chance something could slip through that would raise eyebrows and hard questions. I suspect that is at the heart of Cuomo's reluctance.

When there's lots to hide, you can't too careful. When there's nothing to hide, bring in the sunshine.

Should Cuomo make a run at the presidency — and I have no doubt he will make every effort to do so — he knows he can expect the national media, political bloggers, political dirty tricksters and others to descend on Albany for whatever scraps they can find. As it should be.

Andrew Cuomo really hasn't been vetted by the media in recent times. Thanks to a senior moment by the Republican party offering us Carl Paladino as an alternative, Cuomo was essentially unchallenged and unscrutinized in his carefully orchestrated run for the governorship. Then he went into an equally well-orchestrated honeymoon with the public.

But eventually, when New Yorkers and the rest of the country are forced to ponder whether we want this man as president, that will change. Those AG-year papers and documents would be a great place to start our deliberations. • 518-454-5453

Cuomo papers as attorney general still denied public
A request to review Gov. Andrew Cuomo's records as attorney general is delayed

By Jimmy Vielkind
Published 11:18 p.m., Wednesday, March 21, 2012

ALBANY — Looking for records from Andrew Cuomo's tenure as attorney general? Good luck.
Fifteen months after leaving the Department of Law, Cuomo has sent almost nothing to the State Archives, designated by state law as the final resting place for every attorney general's papers.
The state Education Department, which oversees the archives, has inexplicably delayed the Times Union's request to review what three people familiar with the matter said are 10 boxes of records, or about a dozen cubic feet.

That volume stands in sharp contrast to the way Cuomo's predecessors handled the process. Eliot Spitzer has sent 919 boxes to the archives, detailing daily appointments — the Bar Mitzvahs he attended, the names of his early-morning jogging partners — as well as files on important state legal issues and correspondence from his two terms as attorney general. They were mostly transferred in the opening months of 2007, just after Spitzer became governor, according to a former Spitzer administration officials and Jonathan Burman, a spokesman for the Education Department
Burman refused to say how many boxes have arrived from Cuomo's tenure or what they contain, saying staffers are "still cataloguing the materials," sent most recently in June.

While politicians may routinely parse their words and view truth elastically, the records produced by the grind of government paint an un-spun picture of official tenure for the public and, eventually, for historians. In some instances, such papers have been political liabilities for candidates seeking higher office, such that presidential aspirants from Mitt Romney to Howard Dean have worked to destroy or limit access to them.

The actions of Cuomo, who pundits mention as a possible presidential contender in 2016, seem to contradict his pledge to run an administration that is "the most transparent and accountable in state history."

Josh Vlasto, the governor's spokesman, said: "Records are being compiled and transferred as appropriate."

The Times Union reported last week that some of Cuomo's records sought under the Freedom of Information Law were discarded, and the request closed, as he ascended from attorney general to governor in 2010. The administration had delayed other requests lodged under FOIL, but says it is now current.

On Tuesday, the Washington, D.C.-based Center for Public Integrity ranked New York 36th among the states for public accountability, giving it a "D" grade. Thursday, a slate of good-government groups will call for greater transparency.

"What we see at all levels of government is a human desire to work in privacy, but that's not what the public expects from public servants," Common Cause Executive Director Susan Lerner said.
State law requires agencies to send materials "made or received ... in connection with the transaction of public business" to the State Archives, located above the State Museum. But unlike the federal government and some other states, these requirements do not apply to gubernatorial administrations — something State Archivist Christine Ward has pushed to change.

Many governors have placed their papers in private repositories where it's easier to control access. The Legislature passed a bill in 2010 that would have required exiting governors to turn over their papers, but Gov. David Paterson vetoed it, citing carve outs in the law that would have granted legislators special access.

He signed an executive order creating a records management plan that has been partially implemented. After an earlier deal to use $250,000 in taxpayer funds to send his papers to Cornell University fell apart, Paterson's records are slowly wending their way to the archives.
Paterson's chief counsel, Peter Kiernan, told the Times Union that the veto came after lobbying from Cuomo's incoming team.

"Gov. Paterson wasn't going to sign (the records bill) in the form that it was given to us, but did ask me to negotiate with the legislative sponsors to see if we could come up with an acceptable version. That was ongoing, and I think we might have arrived at a version that was acceptable although there were significant differences," said Kiernan, now in private legal practice. "But because of the request of representatives for the governor-elect, Governor Paterson vetoed it."

Vlasto denied that any lobbying took place, but two other sources familiar with the matter confirmed Kiernan's account. As attorney general, Cuomo investigated Spitzer, Paterson and several of their aides.
Cuomo has not yet formalized a records retention policy, which will detail what gets preserved and what is thrown away. Vlasto said the administration "is in the process of finalizing a broad record retention policy that will be in place well before the Governor's predecessors implemented any such policy."
Cuomo also created Citizen Connects, a website that posts records of his daily calendar online and has been a forum for Internet chats with the governor and other administration officials. As a result of a 2011 government ethics law, the existing "Project Sunlight" website will be expanded.

Some of the agency records that now go to the archives are sensitive enough to be redacted from the general public — files on mental patients who resided in state facilities, for example. Attorneys in the Department of Law have argued that some of its material is covered by attorney-client privilege and should be similarly guarded.

In 2006, Ward and an aide to then-Attorney General Spitzer signed a memorandum of understanding creating a special process for accessing the department's papers, in which records-seekers follow the process and restrictions of the Freedom of Information Law, which applies to all agency records before they are sent to the archives. Since the archivists were ill-equipped to assess what was legally exempt, the Department of Law reviews the requests.

The Times Union filed a FOIL request for Cuomo's records on Jan. 9, and was promised a reply by Feb. 15. None has arrived.
Asked to explain the delay, Burman said, "We can't comment on a pending FOIL request." • 518-454-5081 • @JimmyVielkind

© 2003 The E-Accountability Foundation