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City Council Testimony:
Mike Wallace, Gotham Center for New York City History

I want to thank the Council for this opportunity to comment on the issue before us, both on my own behalf, and for the 1218 people who signed a petition to Mayor Bloomberg calling for the immediate return of former Mayor Giuliani's official papers to public custody. I would also like to applaud Corporation Counsel Michael Cardozo for his efforts at improving the original contract made between the former administration and Saul Cohen, President of the Rudolph W. Giuliani Center for Urban Affairs. I regret to say, however, that despite some marginal advances, this arrangement to privatize the processing of public documents remains, in my judgement, badly flawed public policy, no matter how well meaning its intent. It is something the Council should seek to reverse in the present, and prevent in the future.

The transfer of over 2000 boxes of official mayoral papers to "the Fortress," a high security storage facility in Queens - has been defended by Mr. Giuliani, Mr. Cohen, and former Deputy Mayor Anthony P. Coles on three grounds. They claim that under the control of Giuliani Center employees, the records will be catalogued more quickly, more professionally, and be made more accessible to the public than can be done by the Municipal Archives. Speed, professionalism, and access are the goals, the former mayor claims, nothing more.

These assertions are patently contrary to fact.

Take access. If, as is customary, the papers were housed in the Municipal Archives, they would be available -- this very day - to scholars, journalists, and ordinary citizens. The Archives do not impose blanket restrictions on mayoral records after they are accessioned. Even before they'd been fully cataloged, the Archives would do their best to meet specific requests. Fill out a simple form, and the documents are yours to see.

Try doing that today at the Fortress! Under the contract Giuliani arranged with his own appointed Commissioner in the waning days of his Administration - imagine how much choice the gentleman had in that decision - scholars and journalists would have to bring a Freedom of Information Law action to get access. This remains the case under the new Archival Standards and Processing Plan Mr. Cardozo has accepted.. It could be many months, even years, before that situation changes.

Mr. Cohen claims that access is constricted at the Municipal Archives almost by definition, because "there are few people in New York who have any idea where the records of the city's mayors are stored, or how to access them." But some people seem to have sniffed them out: last year the Archives staff fielded over 75,000 research requests (by mail, phone, and in person).

Mr. Cohen also claims that since the days of Mayor LaGuardia, access has been hampered because the city has simply lacked the resources to house and index its mayoral records. Not only is this not true, but he seems to have forgotten that Rudy's hero Fiorello placed his mayoral papers in the custody of the Municipal Reference Library. Moreover it was he who in 1939 began the push for creating a separate Municipal Archives. LaGuardia even got the city to buy the magnificent twelve-story Rhinelander Building near City Hall in which to house them. It's true that more niggardly approaches prevailed under Mayor Giuliani, but it ill behooves the man who neglected a public agency to complain of the consequences.

Take professionalism. The Giuliani people - inveterate privateers - began with the assumption that the Municipal Archives was not up to the job. To prove it, they hired a private archivist who promptly asserted the public facilities were unable "to meet accepted archival processing standards" - a judgement remarkably congruent with that private company's interest in landing a million dollar plus contract. (Since making these remarks, I've been reminded that as the only source for this quotation and others like it is the unreliable Mr. Cohen, I should have awaited publication of the original report before making such an assessment; I agree, and apologize, and hope Mr. Cohen will be good enough to make that report available to the public.) Since then Mr. Cohen has been routinely -- and incorrectly - bad mouthing the Municipal Archives in the media. The "critics' status quo attitude," he writes, "would be satisfied if both official and personal documents were left to deteriorate in a City Hall subbasement." One doubts Mr. Cohen has ever visited the Archives - housed not in City Hall but in the Surrogate's Court Building across Chambers Street - though I'm sure they'd be glad to arrange a tour of their immaculate and state-of-the-art facilities. In any case, Mr. Cohen's assertion that the city doesn't have a storage facility "that meets archival standards" is simply false.

As to the professional expertise of the city's archivists: city, state, regional and national associations of archivists have testified to the high esteem in which our local civil servants are held by their peers both in New York and across the country. I have to believe that Mayor Bloomberg's signing off on this latest arrangement stems simply from the fact that he has not yet become aware that the best available experts - the ones most experienced at the craft of processing municipal records - are the people already on his staff.

As to speed. Mr Cardozo asserts that the Giuliani Center's estimated three year timetable "is undoubtedly faster than could be completed had the agreement not been entered into." Speed is a function of the number of available archivists, and, yes, the Municipal Archives is short on in-house personnel. But in truth the Archives has routinely transcended its budgetary limitations by obtaining outside grants. The National Endowment for the Humanities and the New York State Archives Program gave major funding to the Archives to process the Papers of Robert Moses. Archivists were also hired to catalog and microfilm the Papers of the Common Council, and for other projects that have gained the Archives its sterling reputation.

If speed had been Giuliani's concern, think how simply this whole imbroglio might have been avoided. Mr. Cohen told me he was prepared to spend over a million dollars processing and promulgating the former Mayor's papers (a sum we'll revisit in a moment). Why in heaven's name didn't they simply leave the papers where they were, and give the Archives a small chunk of that million with which to hire temporary staff to do the work? Or, if the idea of arranging private support for a public agency seemed too politically incorrect, they could simply have made copies of everything - which they intend to do anyway - and left the Archives to proceed at its own presumedly tortoise-like pace, while, quick as hares, the Giuliani folks processed the duplicates and posted them on the internet.

It is Giuliani's failure to take this option that has unfortunately raised in many minds the possibility that what he really seeks is not speed, professionalism, or access, but control. The archivist he hired had been well respected - before she cast aspersions on her rival - but the fact remains that she is a Giuliani employee and would be working on her boss's papers. (See my qualification above.) That's simply not an appropriate way to proceed.

In theory, under the new plan as well as under the old contract, the city retains oversight authority. In practice, the Giuliani Center will retain sole possession - and last I heard possession was still 9/10ths of the law. There will be no representatives of the Corporation Counsel or of the Municipal Archives in residence at the Fortress. For at least three years, actual custody will be in the hands of Giuliani employees. It is they who will make the preliminary determination as to what are public and what are (in the latest revised language) "private documents belonging to former Mayor Giuliani." They will then forward their selections for approval not to the Municipal Archives - who have been completely cut out of the picture - but to the Corporation Counsel, who will also be responsible for processing all FOIL requests. As if his office didn't have enough to do already!

This procedure is unprecedented (and for good reason). All mayoral papers since LaGuardia been turned over the city for "permanent custody," as called for in the City Charter. The only occasion on which Mayoral documents left the premises came when another city institution - the LaGuardia and Wagner Archives - obtained private funding to help process Mayor Koch's papers. The Archives kept custody of the papers and doled out a few boxes at a time to LaGuardia for cataloging, after first having noted their contents. When work was satisfactorily completed on one batch, they were returned to the Archives, and another batch went out. At no time were the papers under control of Koch employees.

The same treatment is routinely accorded presidential papers. At the completion of an administration's term, its documents are delivered into the physical custody of the National Archives and Records Administration, and they remain, ever after, under direct control of the U.S. Archivist. All classifying and processing is done by NARA archivists - they are not sent to the Attorney General for FOIA vetting. (And a good thing, too, given Mr.Ashcroft's recent announcement that he would back up all agencies in stonewalling FOIA requests). Nor are they ever turned over to private archivists (all those far flung Presidential Libraries, remember, are under the administration and control of the National Archives).

The reason for this procedure is that maintaining constant public possession of public documents provides a clear chain of custody; it allows city, state, and federal archivists to certify that their holdings are both complete and untampered with. The importance of maintaining a clear chain of custody is something with which I would have thought a former prosecutor would be in complete accord. I assumed he would understand that historical records, like evidence in criminal cases, must be held to strict standards. If public documents go out of public possession, and especially if they are placed in the hands of directly interested parties, a cloud is cast over the entire body of records. Whatever de jure control exists, in the real world there's simply no way of knowing what might de facto get subtracted from the record. I'm sure Messrs. Bloomberg and Cardozo are loathe even to imagine the possibility that documents in the Fortress might go missing, but, sorry to say, in the age of Enron and Anderson, the general public is considerably more jaundiced about such possibilities. And even should the arrangement proceed flawlessly this time - though how are we to know? - what's to guarantee that the next administration's hired hands, or the next's, would prove equally upstanding? The real point is that this is a nation - and a city of laws - not individuals. We must not be put in the position of being asked to trust any private individual with custody of the public's records. They are the raw material of our collective history.

I do not intend to cast aspersions on Giuliani's probity. I would be opposed to private control of mayoral records no matter which mayor walked off with them. But it would be disingenuous of me, as it is for Mr. Cohen and Mr. Coles, not to take cognizance of the fact that Mr. Giuliani was notorious when in power for his penchant for secrecy and for emitting only information that reflected well upon him.

Early on in his first term, when members of the press, representatives of civic organizations, or duly constituted municipal and state authorities sought even the most routine sorts of information - the kinds of basic data readily dispensed by all prior administrations - he refused to comply. Worse, when people brought FOIL actions, he routinely ignored them, forcing seekers to go to court, and forcing the Corporation Counsel's office to waste huge sums defending indefensible positions.

Giuliani asserted - and not always without reason - that some of the data seekers were political enemies hunting up information with which to discredit him. But he forgot that whatever their political persuasion, under the law they were entitled to access. Or perhaps he didn't forget, but rather as one former administration official said, simply intended to stonewall as long as he could. In any event, he adopted the attitude of "you want it bad enough, go sue us." So people did - at least those with resources. He was sued by, among others, the Daily News, the New York Press Club, the New York Times, Citizens Committee for Children of New York, New York Public Interest Research Group, the Public Advocate, the Manhattan Borough President, the State Comptroller, the Independent Budget Office, and the Citizens' Budget Commission (hardly a "left wing" outfit, but one that nevertheless denounced the mayor for "stonewalling the public on information"). Giuliani lost, over and over again, with the taxpayer picking up the bills. In one 1997 ruling, a Manhattan Supreme Court Justice saw fit to admonish him, pointedly noting that "the law provides for maximum access, not maximum withholding."

The arrogance of Rudy's simply walking off with the papers - appropriately referred to by the New York Times as a "hijacking" - has been carried on by Mr. Cohen's subsequent comments defending that action. Critics "have a narrow view of who [Giuliani] is," Cohen told the Daily News. "He is beyond a New York City mayor he is of national interest." No doubt, but when he generated the documents in question, he was a mere 24/7 city employee - just like Fiorello LaGuardia, another figure of "national interest" - and as such his papers belong in the Municipal Archives.

Mr. Cohen has also referred darkly to the "artificial controversy created by those intent on furthering various private agendas," and suggested that the concerns are coming from those "distressed by the Giuliani administration's successes." This seems all too reminiscent of the mind set that led Mr. Giuliani into withholding information from those he did not trust, while granting special access to those he believed were in his corner. Would a similar mentality rule in the Fortress, with special access to documents being made available to politically correct inquirers? Our confidence in Mr. Cohen's even handedness is not strengthened by his published remark that if his unilateralism "leaves people unhappy, --- 'em." (I admit I've been puzzling ever since as to what a three letter Nixonian expletive deleted might be.)

Part of people's concern about the Center's fitness as custodian is that Messrs. Giuliani, Cohen, and Coles don't seem to grasp the distinction between public and private. A particularly troublesome aspect of the original contract - from which Giuliani has now happily but insufficiently backed away - is that it gave the former mayor the right to initially determine what he considers to be "private" items, which presumably would then become candidates for being locked away or shredded.

The revised plan continues to be problematic on this score. The Center now intends to divide the documents it holds into "official documents of the City," on the one hand, and "private documents belonging to former Mayor Giuliani or another individual," on the other. Robert Freeman, New York State's top Freedom of Information official, who had already rapped the knuckles of the signatories to the original contract, has turned thumbs down on the revised version as well, asserting that the arrangement "appears to conflict with rulings by state appellate courts because it distinguishes some records as public and others as private." In Freeman's opinion, "there are no private records." Government documents, he says, are presumed available to public inspection unless they belong to a specifically exempted category. And under existing FOIL criteria, there are precious few of these; accordingly there are virtually no records generated by a mayor to which the public is not entitled to have access.

A similar confusion underlies Mr. Cohen's charge that former Mayor Koch declared some mayoral papers private, and then reserved access to them, and that critics are employing a "double standard" by not criticizing him. It's not true. Koch set aside papers created before and after his administration, something he has a perfect right to do. More to the point, Koch had no say or control whatsoever in the classification of his administration's papers. The fact remains, that despite Giuliani's new willingness to give up a "right" he never had in the first place, he still insists that the entire body of documents remain under his de facto control.

More to the point, the Giuliani Center people are simply unwilling to admit that the opponents of their well-meaning but ill-advised initiative are legion and broad based. Over one thousand people have signed an electronic petition urging "the immediate return of all public documents to public custody." Among the signatories are archivists from such suspect institutions as JPMorgan Chase, the American Museum of Natural History, American Jewish Archives, the New York Public Library, Columbia University, Congregation Rodeph Sholom, Leo Baeck Institute, Barnard College, Hadassah, The Museum of Modern Art, the New York State Archives, New York Weill Cornell Medical Center Archives, New-York Historical Society, Prospect Park Archives, St. John's University, Schubert Archives, Suffolk County, The Juilliard School, The Riverside Church, and the Union Theological Seminary. And that's just the local folk; the list includes archivists from around the nation and around the world.

Scholars, too, have signed on, from virtually every local university -- CUNY, NYU, Columbia, Cooper Union, Rutgers, Pace, New School, Barnard, Pratt, and Polytech among others - and they have been joined by others from Yale, Harvard, Cornell, Berkeley, Princeton, Stanford, Brown, and scores of other academic institutions, from virtually every state in the Union, and from overseas as well.

In addition, there are journalists, teachers, librarians; people from publishing, government, law, and banking; and just plain concerned citizens. (The full list has been provided to the Council).

It's interesting to note that there has been a similarly broad based uproar - from Democrats and Republicans, liberal and conservatives - over other recent issues concerning access to public documents. The day before his gubernatorial term expired, George W. Bush presented the Texas State Archivist with a paper to sign that authorized him to whisk away 1,800 boxes of official documents to his father's presidential library, where they would not be subject to Texas' strict archives law, which requires a response to all requests for public documents within 10 days. (This too was an unprecedented action: the Texas archives house the official papers of every Texas governor, back to 1846). With the state archivists in hot pursuit of the documents, and a ruling on their custody and handling not due till May, the papers are being handled under an interim memorandum of understanding that gives President Bush's lawyer the right to know in advance which documents are being released. When the press asked for a packet of Enron-related documents, the lawyer questioned whether archivists needed to release them, but ultimately relented. "I just questioned whether it was helpful to anyone," she said innocently. But the documents proved helpful indeed, detailing as they did the cozy connections between George W. Bush and Kenny Boy Lay. One wonders, if the national spotlights focused on the Enron scandal had been less glaring, if those documents would so quickly have seen the light of day.

In a far greater freedom of information scandal, now President Bush has unilaterally abrogated the Presidential Records Act of 1978 (passed in the aftermath of Richard Nixon's attempts to walk off with his official papers). His Executive Order gives a sitting president - starting with himself - the right to withhold the papers of any former president from being released as required by law - even if the former president wishes them to be. In the short term, the order is being used to seal the records of the Reagan Administration - a move widely believed to issue from fears that uncomfortable information might emerge about former high Reagan officials who are now high Bush II officials. In the long run, the Society of American Archivists notes, if challenges now underway by historians and others fail, access to vital historical records of the nation will henceforth be governed by executive decree.

Is this really the moment we want to embark on such a deeply problematic step that opens the door to the privatization of our own public papers?

I can understand why Mayor Bloomberg - who has far more pressing civic problems to attend to - might not have wanted to repeal yet another of Giuliani's midnight hour initiatives. (Though I admit I find his public comment dismissing the importance of these papers as probably containing "nothing of interest" a puzzling remark coming from an information specialist and a politically savvy fellow). I can also understand Mr. Cardozo's unwillingness even to consider the possibility of irregularities in the working out of the contract with Mr. Cohen. But you, the Council, have a responsibility to take a longer term view, and to consider the dangerous precedent being set.

In conclusion, I would urge you would to consider the following measures:

1) Work to reverse this agreement.

2) In any event, the Council should scrutinize it more closely. For one thing, it should clarify the exact relationship between the original Agreement and the new Plan. It should sort out which document governs, if language in the Plan conflicts with language in the Agreement. Mr. Cohen stipulates "that the City does not relinquish any rights granted to it by the agreement which are not incorporated into the Plan." The Plan, that is to say, modifies, but does not replace the agreement. Presumably he also believes that the Center does not relinquish any such rights, either. But this leaves some particular points bathed in murk.

Consider the matter of the final disposition of the documents. Mr.Cohen's clear original intent, which he expressed to me, was to process the documents at the Fortress and then house the originals in some respectable private institution. Indeed the original agreement clearly states that: "the City acknowledges that it is the Center's intent to enter into an arrangement with an educational or similar institute for the permanent housing or display of the Documents or copies of the Documents" (the latter option clearly a fallback plan). It also says: "the Documents, as catalogued and organized, will ultimately be permanently maintained at a site to be determined". At one point it even implies the decision as to future disposition rests with the Center: "In the event that the Center determines, following copying of the Documents, that it wishes [my emphasis] to return the Documents to the City, the City shall receive a copy of the finding aid prepared by the Center." The agreement also makes repeated reference to some other future "facility": "The Center shall hold, maintain, and Process the Documents at the Facility, at any subsequent facility." [sic]

This clearly proved to be a fantasy. Nobody wanted the official papers. Cohen told the New York Times that "the Morgan and New York Public Libraries expressed interest in housing the archive but less interest in doing the actual archival work" - but this has been flatly denied by Paul LeClerc, head of the Public. What he actually told Mr. Cohen was that while the Library would be interested in receiving Mr. Giuliani's private papers - again that vexing distinction between public and private Mr. Cohen has such trouble grasping - "it had no interest in the archives of the Giuliani administration." Quite the opposite: LeClerc "expressed the belief that the archives are city property." The Morgan also denied Mr. Cohen's characterization of their conversation.

It would seem that the Plan has now recognized this reality. Mr. Cohen's letter to Commissioner of Records Andersson notes that under the Plan, the Center has undertaken "to provide to the Municipal Archives, after processing has been completed, not only the originals of all records" but also duplicates. The actual Plan, however, fact says something close to this, but slightly different, and this distinction might perhaps be legally significant, as it is no longer categorical but contingent: "All original records," says the Plan, "will be transferred to the Municipal Archives at a time to be agreed upon by the Center and the Archives."

What happens if they don't agree? What happens if the Center balks, if Mr. Giuliani reverts to stonewalling mode once the bright lights of publicity have gone dim, and continues to maintain possession? Where is the express and binding provision in the Agreement - as opposed to proposed but nonbinding three year timetable in the Plan (which itself contains one loophole allowing a lengthier holding period in the all too likely event they have to process a lot of FOIL requests) - as to when the original documents must be returned? If this arrangement is allowed to proceed, which I hope it won't be, it should at least build in some more rigorous safeguards, and some timetables with teeth. And in any event, if we have in fact put the kibosh on the original intention of shipping the public's papers off to a private university, lets remove all vestiges of the former intention that still litter the governing Agreement.

I would suggest the Council also closely scrutinize the issue of finances. Mr. Cohen told me he was prepared to spend over a million dollars processing and promulgating the papers. But when I suggested to Mr. Coles that they take some of that million and give it to the archives, he said that, in fact, they had "no money." That they would now have to go out and raise it.

What if they don't get it? What if there's another stock market crash and their wealthy friends don't up come with the cash? How will they pay the archivists to rush them into the promised accessibility? Will the papers remain sequestered while they beat the bushes?

3) I would urge the Council to outlaw similar arrangements in the future

4) Finally, on a more positive note, I would suggest that we could avoid such problems in the future if properly funded the Municipal archives. It could certainly use new permanent staff in every unit, but given the current budget situation perhaps it could be given some temporary or contract workers. When sunnier times arrive, moreover, the city should consider rehousing the Archives in larger facilities. More resources would also allow it to digitize its collections; improve the way patrons know about its collections and their contents, thus fulfilling the goals of enhanced accessibility which the public and the Giuliani people share - but for all the city's mayors, not just its currently favorite son.

Mike Wallace is Distinguished Professor of History at John Jay College (CUNY), Director of the Gotham Center for New York City History (at the CUNY Graduate Center), currently a Fellow of the New York Public Library's Center for Scholars and Writers, and co-author of the Pulitzer Prize-winning Gotham: A History of New York City to 1898.

For more information, contact Dr. Suzanne Wasserman, Associate Director of the Gotham Center. Gotham@gc.cuny.edu. 212 817 8460. And consult the web site at www.gothamcenter.org.

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Add your Name to the Petition | Press Conference, Feb. 6, 2002 | Protest Letters | News Articles | Testimony at the Feb. 20, 2002 City Council Hearing |
Defending the archives contract: Saul Cohen, President, Rudy Giuliani Center for Urban Affairs