Update: At noon, several hours after our story was published, the New York State Education Department issued the following statement: “The state archives has received boxes of records from Governor Cuomo’s term as Attorney General. Compiling these records is an ongoing process and more boxes are expected; they will be filed at the appropriate place upon completion.”
A year ago, as Gov.-elect Andrew Cuomo prepared to move out of the state attorney general’s office after one term, his records officer directed staff to pack old memos, along with hard copies of emails, press releases and other correspondence, in large boxes.
The records, documenting the inner workings of Cuomo and his administration, were destined for the State Archives for “permanent historical preservation,” according to Attorney General Eric Schneiderman’s spokeswoman Lauren Passalacqua.
That much is known. The whereabouts of the records since then remain a mystery.
“I can tell you right now the records of the attorney general aren’t in the Archives,” said Robert Bullock, spokesman for the New York State Archives.
Cuomo is the only attorney general to have an empty shelf at the Archives, according to James Folts, the Archive’s head of researcher services. Bullock says records sometimes go into holding facilities and not directly to the Archives, but that the agency that shipped the records would be able to know more. Repeated inquiries to the attorney general’s and governor’s offices have not yielded any further information about the documents’ whereabouts.
The strange case of Cuomo’s missing records has gained urgency in the wake of recent reports that presidential candidate Mitt Romney, former governor of Massachusetts, made a deliberate effort to destroy records of his tenure in office, spending nearly $100,000 replacing old computers and their hard drives at the end of his term and subsequently destroying 150 boxes of paper records.
Cuomo is widely assumed to have presidential ambitions. Yet future chroniclers looking to assess his time in office as attorney general or governor may have a hard time obtaining access to the documents they seek. State law specifically exempts the governor from any obligation to keep records except “as are deemed by him of sufficient value for preservation.”
“In the absence of a governor records law, obviously there are gaps in the understanding of how the Executive Chamber — over the history of the state — conducts its affairs,” Bullock said. Currently, the Archives “depends on the generosity of the governor” to provide it with records, he said.
If the language of the law sounds dated, it’s because it hasn’t changed since 1951. Before that the law was last revised sometime in the 1850s, according to New York State Archivist Christine Ward, who calls its language “arcane.”
When he left office in 2006 after three terms, Gov. George Pataki took liberal advantage of the law. He shipped the Archives 12 years of press releases and nothing more – a sharp break from previous governors, who sent hundreds of cubic feet of potentially revealing internal documents and correspondence. The Archives holds records of official governors’ correspondence from 1905 to 1994 – and only from Gov. Eliot Spitzer’s 2007-2008 term since then.
In the last decade a number of legislators have sought to strengthen the preservation of records, with no success. Former Assemblyman Sam Hoyt introduced a bill in 1995 modeled on the Presidential Records Act, but the Buffalo Democrat encountered resistance from the Republican-controlled Senate during Pataki’s administration. Hoyt reintroduced the bill almost every year thereafter with no success.
In 2009, the Legislature passed a bill sponsored by Democratic Sen. Neil Breslin that would have given the state archivist jurisdiction over the governor’s records, including correspondence and internal documents, along with the power to make them publicly available. Gov. David Paterson vetoed the bill, asserting its fiscal impact would be too great. The following year, the Legislature passed the bill again – and Paterson again vetoed it during his final week in office.
Paterson spokeswoman Jessica Basset told the Times Union “the bill did not provide adequate protection for valued, centuries-old governmental privileges that are indispensable to ensure unfettered, candid advice.”
Hoyt and Breslin shared the 2010 William Hoyt Annual Archives Award for Advocacy issued by the State Archives for their career-long efforts promoting government transparency.
In place of the bill, Paterson issued an executive order calling on the governor’s office to establish a records management policy and appoint a records retention officer, who would determine which documents were of historical value and should be preserved. Paterson’s veto of the bill also announced his intent to donate his records to Cornell University; the deal has since fallen through and the records are in the process of being added to the State Archives, though it’s unclear exactly what documents are in the collection.
The Times Union later urged Cuomo to call the Legislature to pass the bill again so he could sign it. He did not follow the advice. It’s also not clear whether the Cuomo administration is now in compliance with Paterson’s executive order; his office did not respond to repeated requests for comment.
The order gives the governor complete discretion over what records are maintained, and specifically permits the “regular timed deletion of electronic mail.” (Though don’t ever expect to dig up emails from Cuomo himself: he never used a personal email account, according to staff at the attorney general’s office.)
Despite these loopholes, Bullock asserts Paterson’s executive order was a step in the right direction. “Anytime you can get records from a sitting governor,” he said, “it still helps future generations understand the conduct of the administration.”
Dr. Timothy Kneeland, associate professor of history and political science at Nazareth College near Rochester, is finishing a book on former New York governor Nelson Rockefeller. He suggests while it might be fair to give New York’s governors a certain zone of privacy – for instance, in internal discussions with staff – decisions about what records are preserved should not be handled internally.
“If they get to determine what is of historical significance then they get the option to cherry-pick the records,” Kneeland said. “And then we don’t get much of a record — it’s almost a showcase for them.”
If Paterson were really concerned about privacy, Kneeland says, he could have included a provision to keep the records sealed for a certain number of years yet still preserve them with the Archives so that future generations could have access. The records from the 1971 Attica prison riots, for instance, are not open to the public but the Archives maintain them so they may be unsealed in the future.
State agencies have little incentive to comply with records laws in general, however. The only penalty in state law for non-compliance is a fine of “not less than twenty dollars.”