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NYCLU Official Letter to Mayor Bloomberg Regarding the Giuliani Papers

NEW YORK CIVIL LIBERTIES UNION
125 Broad Street, 17th Floor
New York, NY 10004
Telephone (212) 344-3005
Fax (212) 344-3318
www.nyclu.org


February 5, 2002

Hon. Michael R. Bloomberg
Mayor, City of New York
City Hall
New York, New York 10007

Michael A. Cardozo
Corporation Counsel of the City of New York
New York City Law Department
59 Maiden Lane, 15th floor
New York, New York 10038

Gentlemen:

Serious evaluation of the conduct and performance of public officials lies at the core of our democratic system. In furtherance of that interest in free and robust discussion of public affairs, the Freedom of Information Law confers access to public documents and papers. That interest has been compromised by the recent transfer of all of the records of the Giuliani mayoralty, out of the direct custody and control of the New York City Department of Records and Information Services and the Municipal Archives ("DORIS") pursuant to a contract between the City and the Rudolph W. Giuliani Center for Urban Affairs Inc. The transfer also appears to violate DORIS' obligations under the City Charter.

Our concern is based on the following facts, as we understand them. On or about December 24, 2001, Commissioner George Rios, on behalf of the City of New York and/or the Department of Records and Information Services of the City of New York, entered into a contract with the Rudolph W. Giuliani Center for Urban Affairs Inc., signed by Saul Cohen, President, concerning the records of the mayoralty of Rudolph Giuliani. The records are said to include appointment books, cabinet meeting audiotapes, e-mails, telephone logs, advance and briefing memos, correspondence, transition materials, and private schedules, as well as Mr. Giuliani's departmental, travel, event, subject, and Gracie Mansion files. Giuliani's "World Trade Center files" and "Millennium Project files," together with 6000 files of photographs, 1000 audiotapes, and 15,000 videotapes, are also reported to be a part of the records covered by the contract. In addition, the records include those of his chief of staff and every deputy mayor, together with their chiefs of staff. Finally, gifts such as plaques, awards, personalized clothing, and other items presented to the mayor and deputy mayors, as well as World Trade Center-related materials are alleged to be included as part of the records. All of these items were reported to have been delivered from the control of the City to a warehouse storage facility in Long Island City at the end of December 2001.

The December 24th agreement acknowledges that the "official papers" of the former mayor are a matter of "great historical significance" and "unique value." The agreement further recognizes that "the documents are the property of the City" and that "under the City Charter," the Department of Records "is ultimately responsible for the preservation and organization" of these materials. Nevertheless, the agreement provides that "[w]henever 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." The agreement also grants the Giuliani Center a role in determining the public nature and availability of documents. If the Giuliani Center determines that material is not a "public document," the Center and the City can agree to destroy it.

These provisions violate the Freedom of Information Law as interpreted by the New York Court of Appeals in Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246 (1987). In Whalen, the Court of Appeals considered a dispute with respect to the "personal" papers of then-deceased Albany Mayor Erastus Corning. After Mayor Corning's death, the City of Albany maintained numerous of Mayor Corning's governmental, as well as personal, documents. The Corning estate objected to the City of Albany's making Mayor Corning's papers available in response to FOIL requests of the media. The City of Albany then deferred to the Corning estate, permitting it to screen Mayor Corning's papers and then, either to remove certain papers from the City's custody and control or to deny requests for public access to such documents. The Court of Appeals criticized the City for acceding to procedures that conflicted with the Freedom of Information Law.

In so doing, the Court noted:

as a practical matter, the procedure permitting an unreviewable prescreening of documents--which respondents urge us to engraft on the statute--could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private.' Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected. Whalen, 69 N.Y.2d at 253-4.

Although the December 24th contract between the City and the Giuliani Center acknowledges the City's obligations under FOIL, two provisions of the contract violate FOIL. One provision gives Mr. Giuliani veto power over the disclosure of documents he deems personal. The other allows the Giuliani Center to prescreen documents and determine when they are "public." This provision intrudes the Center into a determinative process not contemplated by FOIL.

The City also violated the Freedom of Information Law by transferring records to the custody of the Giuliani Center without first compiling a detailed list. Section 87(3)(c) of the Public Officer Law obligates an agency to maintain a "reasonably detailed list by subject matter" of all agency records, "whether or not [those records are] available under this article." Such a list is necessary to prevent the inappropriate destruction of documents and to inform the public as to the content of the documentary collection. The list appended to the December 24th contract as Attachment A does not contain sufficiently detailed information to satisfy this requirement. And the documents appear, therefore, to have been transferred without complying with this requirement.

Finally, the City Charter vests DORIS with the responsibility to preserve and receive all city records of historical, research, cultural or other important value. City Charter, Chapter 72, 3004(1)(c). The City Charter mandates that DORIS make all of the materials it maintains available for public inspection. 3004(2)(c). The City Charter also mandates that all records which are deemed to be of historical or research value be transferred by the city official or agency to DORIS' municipal archives for "permanent custody." City Charter, Chapter 49, 1133(b); RCNY 1-07. In transferring the documents to the Center, the City has violated this mandate and has made it less likely that the materials will be readily accessible for public inspection.

For these reasons, we urge the City to terminate the contract and to exercise its right of unrestricted access to the documents so as to ensure the documents are properly preserved.

Very truly yours,
Donna Lieberman
Arthur Eisenberg
Beth Haroules

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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