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City Council Testimony:
Gene Russinanoff, Senior Attorney, New York Public Interest Research Group, Inc.

NYPIRG shares the view of many archivists and historians that the records of former Mayor Rudolph Giuliani should not have been spirited away at the close of his administration in December. We urge the City Council to take action to protect public access to these records, as well as to enact legislation to detail the process for handling future archival records of mayors.

As you know, on December 24th, 2002, Mayor Giuliani's former Commissioner of Records and Information Services and the Rudolph W. Giuliani Center for Urban Affairs signed an agreement resulting in the transfer of the former Mayor's records to the Center.

The contract was a product of self-dealing and conflict of interest. Indeed, there is a cloud over these records that will never go away. Since they were taken out of public custody to a private warehouse without an inventory, the public will never know if public records were removed or destroyed.

City law should be amended to prohibit this kind of self-dealing. It should require that mayoral records be physically retained by the City for at least 90 days following the end of a mayoral term. It should also bar an outgoing mayor from negotiating a contract regarding the custody and maintenance of his or her records. These policies would guarantee an immediate "chain of custody" and insured that a less self-interested party participates in the archiving of their records. The Council should consider whether this policy should apply to other city officials.

The Charter should also be amended to prohibit the custody of mayoral records by any entity directly controlled-or directly funded in whole or in part-by a former mayor or his appointees. As the Giuliani Center's own Archival Standards and Processing Plan makes clear, an archivist is allowed significant discretion: "The Archivist must use his/her own judgment and bring all records which may be security-related, privileged or private to the attention of the Office of Corporation Counsel." The same cloud over the records will hover over whichever archivist is directed and paid for by a former mayor.

The Council should consider a law to permit former mayors to direct private funding to the Municipal Archives for the purposes of archiving their records. The law should allow the Municipal Archives, not the mayor, to enter into arrangements with independent academic institutions if necessary. The key is not to have the archivists directly on the payroll of the former mayor. It is our understanding that in the case of Presidential Libraries, the archivists are federal employees.

The Council should adopt these mayoral archival policies retroactively, to apply to the December 24th contract in question here. There should be no bar to setting archival policies by law and then to require that any arrangement in violation of those policies be rescinded within 90 days. Article II of the contract in fact allows the City to terminate the agreement for "any reason upon 90 days written notice."

At a minimum, the Council should adopt a resolution calling on the Bloomberg Administration to cancel the contract and regain custody of the documents.

Finally, NYPIRG remains concerned that the current contract terms themselves violate the state's Freedom of Information Law.

On January 25th, we wrote current Corporation Counsel Michael Cardozo-along with Citizens Union and Common Cause/NY-urging the City to cancel or at least renegotiate the contract. (A copy of the letter is attached.) Unfortunately, the City has taken neither step. Instead, the City has simply consented to an "Archival Standards and Processing Plan" drafted by the Rudolph W. Giuliani Center.

There is a direct conflict between the contract and the new plan. Clause I (M) of the contract says: "Whenever Rudolph W. Giuliani has a personal interest or right in a Document separate and apart from the interests and rights of the City, his approval shall be required before any such document may be released or disclosed to the public."

Numerous experts, including Robert Freeman the executive director of the New York State Committee on Open Government, have concluded that this provision violates the state's Freedom of Information Law. In an advisory opinion dated February 14th, 2002, Mr. Freeman wrote: "Since the documents are City records, and since all City records are subject to rights of access conferred upon the public by the Freedom of Information Law, the former mayor has no 'right' to determine which documents are accessible to the public. On the contrary, the law serves as the basis for determining rights of access."

The plan, which was drafted "pursuant to Article I (E)" of the contract, states: "The City shall be the sole determiner of whether a record is an official document of the City or a private document belonging to former Mayor Giuliani or another individual. Such determinations shall in each case be made by the Office of the Corporation Counsel... In the case of a request for access to a private document contained in the collection but belonging to former Mayor Giuliani or another individual, in the case of a request made under FOIL, the City shall be the sole determiner of whether and to what extent such access shall be granted."

Despite the wording of the plan, Clause I (M) stays in place unchanged, and could have effect in some future legal conflict over access to the records. It should be removed in a renegotiated contract.


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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