What I learned in the archives, before the governor found out

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Andrew Cuomo. (Photo via Andrew Cuomo on flickr.)
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ALBANY — Andrew Cuomo is a governor of ends, not means, and has changed public perception of the state’s notoriously dysfunctional government by pushing legislators into harmonic action and minimizing scandals.

“Government is supposed to function,” Cuomo said earlier this year. “It’s not a debating society.”

A key to Cuomo’s success has been the leverage he derives from his very high public approval rating, which is in part a product of his meticulous management of the flow of information that affects the public's understanding of the job he's done in office.

But over the past 19 months, that management has moved beyond regulating talking points to selectively concealing the public record, as we in the press have noted.

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Cuomo is, as the Times put it in a front-page article this week, running an administration that is “drawing attention for its focus on secrecy.”

Most recently, this focus on secrecy was shown in the extraordinary efforts of the governor's aides to shield some his records from public scrutiny in the State Archives, where a top Cuomo lieutenant spent nearly eight hours screening documents from Cuomo’s years as attorney general that were sought by the Times Union under the Freedom of Information Law.

One aide, Linda Lacewell, pulled dozens of files out of the ten-or-so boxes that were made available under the request, citing various exemptions under FOIL.

Using FOIL as the standard for disclosure is the archives’ accepted practice, but its exemptions are subject to interpretation. So the interpreter matters.

In this case, the review wasn’t conducted by archivists, as it would be at the federal level, but rather by someone who reports directly to the governor. Neither Cuomo’s aides nor the archives offered any written procedure dealing with the case files, notes, and correspondence that Cuomo generated during his four years as attorney general. It doesn’t seem such guidance exists. The archives did provide a 2006 memorandum of understanding between state archivist Christine Ward and a top aide to then-attorney general Eliot Spitzer. An archives spokesman says the memo applies only to records from Spitzer’s tenure.

Not that there’s much material of Cuomo’s to look at. He has sent fewer than 75 boxes to the archives so far, compared with more than 1,000 boxes of records sent by Spitzer from his two terms as A.G.

While a former state archivist called Lacewell’s review activities “very concerning,” they are permissible and explicable under New York laws, according to FOIL guru Bob Freeman, who chairs the Committee on Open Government.

Most of the files that my colleagues at the Times Union and I were actually able to review were routinely available research documents, or press releases.

We did find some interesting files, most of which were in a box of records that contained the daily schedules and notebooks of Ellen Biben, Cuomo’s former public integrity chief and now the state’s top ethics watchdog, that contained some interesting—though not particularly explosive—materials.

Tucked into the front flap of one of the binders was a seven-page memo that Lacewell herself wrote in August of 2007 on the so-called Troopergate affair.

We photocopied it, an act which apparently spooked archives officials as well as Cuomo’s aides. On Monday Lacewell returned to the archives to pull another round of documents, including the entire box that had contained that document. They said the box was made available to us in error, and should also be exempt under FOIL. It will now remain under lock and key for 75 years.

That memo, which the Times Union posted online on Tuesday, two days after our initial Sunday report detailing Lacewell’s pre-screening of the records, describes the investigatory process of the 2007 travel records probe that became known as Troopergate. Spitzer, whose standing never recovered after the affair, and after Cuomo's findings were made public, has said that the investigation was deeply flawed.

The Troopergate scandal began to unfold publicly in July 2007 when my colleague Jim Odato published a report, based on information he had received through FOIL, saying then-State Senate majority leader Joe Bruno had attended political events (in addition to official business) during trips on which he had used state aircraft.

Three weeks later, then-attorney general Cuomo produced a report on the affair which found Bruno had acted lawfully, and faulted Spitzer’s aides for manufacturing documents that were released to Odato. The Spitzer aides subsequently resigned and were fined. Spitzer eventually resigned for other reasons. Bruno is facing a second trial for federal corruption charges, after an earlier conviction was vacated due to a Supreme Court decision.

Only Cuomo remains an active player on the political scene. And his essentially unblemished tenure as A.G. remains a key point in his political narrative, with Troopergate serving as a primary demonstration of willingness to tackle public corruption.

Everyone knows that in 2007, Spitzer’s enmity for Bruno was near obsessive. It's also no secret that Spitzer was a silent rival for Cuomo, if for no other reason than he occupied the office Cuomo had previously sought (and would again, very obviously, seek).

Spitzer contends that Cuomo’s report was structured to destroy him, and cited the newly released memo as proof. Cuomo’s aides stood by their first report, which cleared Bruno of wrongdoing, saying it was confirmed by subsequent inquiries and, for good measure, attacking the Times Union.

One line in the memo has prompted some questions about Cuomo’s first Troopergate report, but there was no smoking gun.

So why expend so much capital to keep it hidden? Cuomo’s aides argue it’s a good-government principle—the memo shouldn’t have been disclosed, and they have a duty to uphold the integrity of the investigative process.

But it also illustrates the extent to which Cuomo and his aides go, on a routine basis, to control the flow of information about their activities to the public.

For one thing, the governor and his inner circle take pains, as a matter of course, to avoid the creation of document trails in the first place. We’ve seen that in the limited sample of documentation that’s been sent to the archives. (Cuomo’s aides say another 400 boxes of materials are on their way. They will have been pre-screened to facilitate public access as an added bonus.)

The Daily News reported earlier this month that Cuomo avoids email in favor of BlackBerry messages, because they leave no permanent record. (He later explained the preference by citing security issues.)

Cuomo even discarded schedule records that were the subject of a pending FOIL request rather than turn them over.

And then there are the attacks on journalists: The administration routinely goes directly to nuclear level in its responses, accusing the reporters who cover it of fabricating stories in pursuit of an anti-Cuomo agenda. The accusations, just as routinely, are baseless.

This mode of operation might be less jarring had Cuomo not set his own bar quite so high: He promised to run an administration that is “the most transparent and accountable in history” upon taking office.

Cuomo has made several positive and duly lauded gestures toward transparency, including the proactive posting of a version of his schedule records on a new state website, the establishment of a records management plan that provides written guidance on what files aides should save, and his push for an ethics overhaul in 2011 that will require lawmakers to disclose the amount of their outside income, among other things.

But how will these gestures be weighed?

The fight over the archived document, John Kaehny of Reinvent Albany told NY1, hardly befits a governor "who vowed to transform Albany culture from one of secretiveness to one of transparency."

Cuomo's sunlight, apparently, is blinding.

Jimmy Vielkind is a political reporter for the Albany Times Union and the principal contributor to its Capitol Confidential blog.