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NState official says contract over Giuliani records is inconsistent with the law
by Diego Ibarguen
Associated Press Writer
February 14, 2002, 3:03 AM EST

NEW YORK -- The public may be able to view records from former mayor Rudolph Giuliani's administration, including documents related to the World Trade Center attack, without getting Giuliani's approval.

The state's top Freedom of Information official said Wednesday that Giuliani does not have the right to determine which mayoral records can be made public.

Robert Freeman, director of the state's Committee on Open Government, said a city agreement governing Giuliani's records contains sections that are "inconsistent with the Freedom of Information Law and the interpretation of that statute."

By the terms of the agreement -- signed Dec. 24, just days before Giuliani left office -- records related to his administration were handed over to the Rudolph W. Giuliani Center for Urban Affairs, a new organization run by colleagues of the ex-mayor.

The agreement also gives the former mayor the right to determine what documents can be made public -- a provision Freeman found inconsistent with state law.

The records in in question include a wide variety of information from Giuliani's office and those of his chief of staff, deputy mayors and their chiefs of staff.

The Associated Press had requested Freeman review the agreement and issue an advisory opinion.

"From my perspective, since the documents are city records, and since all city records are subject to public 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," Freeman said.

"On the contrary, the law serves as the basis for determining rights of access."

Freeman also questioned the validity of a term in the contract stating that the center's intent is to ultimately make the documents available for "research and study purposes."

"It has been held that when records are accessible under (the Freedom of Information Law) they are equally available to any person, regardless of status or interest," Freeman said.

The agreement with the Giuliani Center asserts that ownership of the documents remains with the city and says the center will comply with the Freedom of Information Law and other disclosure statutes.

But the agreement also says whenever 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 document may be released."

It gives the center discretion to determine whether a document is public.

Saul Cohen, president of the Giuliani Center, said he had not seen Freeman's opinion. He said the agreement allows the city to decide what is made public, not the center.

The agreement sparked controversy when it was first reported last month. City Comptroller William Thompson has launched an audit of the agreement, and Public Advocate Betsy Gotbaum has asked for it to be reviewed, noting that it may violate the City Charter.

Freeman said the city "could terminate the agreement or renegotiate to ensure that its terms are fully consistent with the law." He also suggested the agreement could be challenged in court and sections invalidated.

Michael Cardozo, the city's corporation counsel, had yet to receive a copy of the opinion and had no immediate comment.

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Defending the archives contract: Saul Cohen, President, Rudy Giuliani Center for Urban Affairs