|
I want to thank the Council for this opportunity to comment on the issue before
us, both on my own behalf, and for the 1218 people who signed a petition to Mayor
Bloomberg calling for the immediate return of former Mayor Giuliani's official
papers to public custody. I would also like to applaud Corporation Counsel
Michael Cardozo for his efforts at improving the original contract made between
the former administration and Saul Cohen, President of the Rudolph W. Giuliani
Center for Urban Affairs. I regret to say, however, that despite some marginal
advances, this arrangement to privatize the processing of public documents
remains, in my judgement, badly flawed public policy, no matter how well meaning
its intent. It is something the Council should seek to reverse in the present,
and prevent in the future.
The transfer of over 2000 boxes of official mayoral papers to "the Fortress," a
high security storage facility in Queens - has been defended by Mr. Giuliani, Mr.
Cohen, and former Deputy Mayor Anthony P. Coles on three grounds. They claim that
under the control of Giuliani Center employees, the records will be catalogued
more quickly, more professionally, and be made more accessible to the public than
can be done by the Municipal Archives. Speed, professionalism, and access are the
goals, the former mayor claims, nothing more.
These assertions are patently contrary to fact.
Take access. If, as is customary, the papers were housed in the Municipal
Archives, they would be available -- this very day - to scholars, journalists,
and ordinary citizens. The Archives do not impose blanket restrictions on mayoral
records after they are accessioned. Even before they'd been fully cataloged, the
Archives would do their best to meet specific requests. Fill out a simple form,
and the documents are yours to see.
Try doing that today at the Fortress! Under the contract Giuliani arranged with
his own appointed Commissioner in the waning days of his Administration - imagine
how much choice the gentleman had in that decision - scholars and journalists
would have to bring a Freedom of Information Law action to get access. This
remains the case under the new Archival Standards and Processing Plan Mr. Cardozo
has accepted.. It could be many months, even years, before that situation
changes.
Mr. Cohen claims that access is constricted at the Municipal Archives almost by
definition, because "there are few people in New York who have any idea where the
records of the city's mayors are stored, or how to access them." But some people
seem to have sniffed them out: last year the Archives staff fielded over 75,000
research requests (by mail, phone, and in person).
Mr. Cohen also claims that since the days of Mayor LaGuardia, access has been
hampered because the city has simply lacked the resources to house and index its
mayoral records. Not only is this not true, but he seems to have forgotten that
Rudy's hero Fiorello placed his mayoral papers in the custody of the Municipal
Reference Library. Moreover it was he who in 1939 began the push for creating a
separate Municipal Archives. LaGuardia even got the city to buy the magnificent
twelve-story Rhinelander Building near City Hall in which to house them. It's
true that more niggardly approaches prevailed under Mayor Giuliani, but it ill
behooves the man who neglected a public agency to complain of the consequences.
Take professionalism. The Giuliani people - inveterate privateers - began with
the assumption that the Municipal Archives was not up to the job. To prove it,
they hired a private archivist who promptly asserted the public facilities were
unable "to meet accepted archival processing standards" - a judgement remarkably
congruent with that private company's interest in landing a million dollar plus
contract. (Since making these remarks, I've been reminded that as the only source
for this quotation and others like it is the unreliable Mr. Cohen, I should have
awaited publication of the original report before making such an assessment; I
agree, and apologize, and hope Mr. Cohen will be good enough to make that report
available to the public.) Since then Mr. Cohen has been routinely -- and
incorrectly - bad mouthing the Municipal Archives in the media. The "critics'
status quo attitude," he writes, "would be satisfied if both official and
personal documents were left to deteriorate in a City Hall subbasement." One
doubts Mr. Cohen has ever visited the Archives - housed not in City Hall but in
the Surrogate's Court Building across Chambers Street - though I'm sure they'd be
glad to arrange a tour of their immaculate and state-of-the-art facilities. In
any case, Mr. Cohen's assertion that the city doesn't have a storage facility
"that meets archival standards" is simply false.
As to the professional expertise of the city's archivists: city, state, regional
and national associations of archivists have testified to the high esteem in
which our local civil servants are held by their peers both in New York and
across the country. I have to believe that Mayor Bloomberg's signing off on this
latest arrangement stems simply from the fact that he has not yet become aware
that the best available experts - the ones most experienced at the craft of
processing municipal records - are the people already on his staff.
As to speed. Mr Cardozo asserts that the Giuliani Center's estimated three year
timetable "is undoubtedly faster than could be completed had the agreement not
been entered into." Speed is a function of the number of available archivists,
and, yes, the Municipal Archives is short on in-house personnel. But in truth the
Archives has routinely transcended its budgetary limitations by obtaining outside
grants. The National Endowment for the Humanities and the New York State Archives
Program gave major funding to the Archives to process the Papers of Robert Moses.
Archivists were also hired to catalog and microfilm the Papers of the Common
Council, and for other projects that have gained the Archives its sterling
reputation.
If speed had been Giuliani's concern, think how simply this whole imbroglio might
have been avoided. Mr. Cohen told me he was prepared to spend over a million
dollars processing and promulgating the former Mayor's papers (a sum we'll
revisit in a moment). Why in heaven's name didn't they simply leave the papers
where they were, and give the Archives a small chunk of that million with which
to hire temporary staff to do the work? Or, if the idea of arranging private
support for a public agency seemed too politically incorrect, they could simply
have made copies of everything - which they intend to do anyway - and left the
Archives to proceed at its own presumedly tortoise-like pace, while, quick as
hares, the Giuliani folks processed the duplicates and posted them on the
internet.
It is Giuliani's failure to take this option that has unfortunately raised in
many minds the possibility that what he really seeks is not speed,
professionalism, or access, but control. The archivist he hired had been well
respected - before she cast aspersions on her rival - but the fact remains that
she is a Giuliani employee and would be working on her boss's papers. (See my
qualification above.) That's simply not an appropriate way to proceed.
In theory, under the new plan as well as under the old contract, the city retains
oversight authority. In practice, the Giuliani Center will retain sole possession
- and last I heard possession was still 9/10ths of the law. There will be no
representatives of the Corporation Counsel or of the Municipal Archives in
residence at the Fortress. For at least three years, actual custody will be in
the hands of Giuliani employees. It is they who will make the preliminary
determination as to what are public and what are (in the latest revised language)
"private documents belonging to former Mayor Giuliani." They will then forward
their selections for approval not to the Municipal Archives - who have been
completely cut out of the picture - but to the Corporation Counsel, who will also
be responsible for processing all FOIL requests. As if his office didn't have
enough to do already!
This procedure is unprecedented (and for good reason). All mayoral papers since
LaGuardia been turned over the city for "permanent custody," as called for in the
City Charter. The only occasion on which Mayoral documents left the premises came
when another city institution - the LaGuardia and Wagner Archives - obtained
private funding to help process Mayor Koch's papers. The Archives kept custody of
the papers and doled out a few boxes at a time to LaGuardia for cataloging, after
first having noted their contents. When work was satisfactorily completed on one
batch, they were returned to the Archives, and another batch went out. At no time
were the papers under control of Koch employees.
The same treatment is routinely accorded presidential papers. At the completion
of an administration's term, its documents are delivered into the physical
custody of the National Archives and Records Administration, and they remain,
ever after, under direct control of the U.S. Archivist. All classifying and
processing is done by NARA archivists - they are not sent to the Attorney General
for FOIA vetting. (And a good thing, too, given Mr.Ashcroft's recent announcement
that he would back up all agencies in stonewalling FOIA requests). Nor are they
ever turned over to private archivists (all those far flung Presidential
Libraries, remember, are under the administration and control of the National
Archives).
The reason for this procedure is that maintaining constant public possession of
public documents provides a clear chain of custody; it allows city, state, and
federal archivists to certify that their holdings are both complete and
untampered with. The importance of maintaining a clear chain of custody is
something with which I would have thought a former prosecutor would be in
complete accord. I assumed he would understand that historical records, like
evidence in criminal cases, must be held to strict standards. If public documents
go out of public possession, and especially if they are placed in the hands of
directly interested parties, a cloud is cast over the entire body of records.
Whatever de jure control exists, in the real world there's simply no way of
knowing what might de facto get subtracted from the record. I'm sure Messrs.
Bloomberg and Cardozo are loathe even to imagine the possibility that documents
in the Fortress might go missing, but, sorry to say, in the age of Enron and
Anderson, the general public is considerably more jaundiced about such
possibilities. And even should the arrangement proceed flawlessly this time -
though how are we to know? - what's to guarantee that the next administration's
hired hands, or the next's, would prove equally upstanding? The real point is
that this is a nation - and a city of laws - not individuals. We must not be put
in the position of being asked to trust any private individual with custody of
the public's records. They are the raw material of our collective history.
I do not intend to cast aspersions on Giuliani's probity. I would be opposed to
private control of mayoral records no matter which mayor walked off with them.
But it would be disingenuous of me, as it is for Mr. Cohen and Mr. Coles, not to
take cognizance of the fact that Mr. Giuliani was notorious when in power for his
penchant for secrecy and for emitting only information that reflected well upon
him.
Early on in his first term, when members of the press, representatives of civic
organizations, or duly constituted municipal and state authorities sought even
the most routine sorts of information - the kinds of basic data readily dispensed
by all prior administrations - he refused to comply. Worse, when people brought
FOIL actions, he routinely ignored them, forcing seekers to go to court, and
forcing the Corporation Counsel's office to waste huge sums defending
indefensible positions.
Giuliani asserted - and not always without reason - that some of the data seekers
were political enemies hunting up information with which to discredit him. But he
forgot that whatever their political persuasion, under the law they were entitled
to access. Or perhaps he didn't forget, but rather as one former administration
official said, simply intended to stonewall as long as he could. In any event, he
adopted the attitude of "you want it bad enough, go sue us." So people did - at
least those with resources. He was sued by, among others, the Daily News, the New
York Press Club, the New York Times, Citizens Committee for Children of New York,
New York Public Interest Research Group, the Public Advocate, the Manhattan
Borough President, the State Comptroller, the Independent Budget Office, and the
Citizens' Budget Commission (hardly a "left wing" outfit, but one that
nevertheless denounced the mayor for "stonewalling the public on information").
Giuliani lost, over and over again, with the taxpayer picking up the bills. In
one 1997 ruling, a Manhattan Supreme Court Justice saw fit to admonish him,
pointedly noting that "the law provides for maximum access, not maximum
withholding."
The arrogance of Rudy's simply walking off with the papers - appropriately
referred to by the New York Times as a "hijacking" - has been carried on by Mr.
Cohen's subsequent comments defending that action. Critics "have a narrow view of
who [Giuliani] is," Cohen told the Daily News. "He is beyond a New York City
mayor — he is of national interest." No doubt, but when he generated the
documents in question, he was a mere 24/7 city employee - just like Fiorello
LaGuardia, another figure of "national interest" - and as such his papers belong
in the Municipal Archives.
Mr. Cohen has also referred darkly to the "artificial controversy created by
those intent on furthering various private agendas," and suggested that the
concerns are coming from those "distressed by the Giuliani administration's
successes." This seems all too reminiscent of the mind set that led Mr. Giuliani
into withholding information from those he did not trust, while granting special
access to those he believed were in his corner. Would a similar mentality rule in
the Fortress, with special access to documents being made available to
politically correct inquirers? Our confidence in Mr. Cohen's even handedness is
not strengthened by his published remark that if his unilateralism "leaves people
unhappy, --- 'em." (I admit I've been puzzling ever since as to what a three
letter Nixonian expletive deleted might be.)
Part of people's concern about the Center's fitness as custodian is that Messrs.
Giuliani, Cohen, and Coles don't seem to grasp the distinction between public and
private. A particularly troublesome aspect of the original contract - from which
Giuliani has now happily but insufficiently backed away - is that it gave the
former mayor the right to initially determine what he considers to be "private"
items, which presumably would then become candidates for being locked away or
shredded.
The revised plan continues to be problematic on this score. The Center now
intends to divide the documents it holds into "official documents of the City,"
on the one hand, and "private documents belonging to former Mayor Giuliani or
another individual," on the other. Robert Freeman, New York State's top Freedom
of Information official, who had already rapped the knuckles of the signatories
to the original contract, has turned thumbs down on the revised version as well,
asserting that the arrangement "appears to conflict with rulings by state
appellate courts because it distinguishes some records as public and others as
private." In Freeman's opinion, "there are no private records." Government
documents, he says, are presumed available to public inspection unless they
belong to a specifically exempted category. And under existing FOIL criteria,
there are precious few of these; accordingly there are virtually no records
generated by a mayor to which the public is not entitled to have access.
A similar confusion underlies Mr. Cohen's charge that former Mayor Koch declared
some mayoral papers private, and then reserved access to them, and that critics
are employing a "double standard" by not criticizing him. It's not true. Koch set
aside papers created before and after his administration, something he has a
perfect right to do. More to the point, Koch had no say or control whatsoever in
the classification of his administration's papers. The fact remains, that despite
Giuliani's new willingness to give up a "right" he never had in the first place,
he still insists that the entire body of documents remain under his de facto
control.
More to the point, the Giuliani Center people are simply unwilling to admit that
the opponents of their well-meaning but ill-advised initiative are legion and
broad based. Over one thousand people have signed an electronic petition urging
"the immediate return of all public documents to public custody." Among the
signatories are archivists from such suspect institutions as JPMorgan Chase, the
American Museum of Natural History, American Jewish Archives, the New York Public
Library, Columbia University, Congregation Rodeph Sholom, Leo Baeck Institute,
Barnard College, Hadassah, The Museum of Modern Art, the New York State Archives,
New York Weill Cornell Medical Center Archives, New-York Historical Society,
Prospect Park Archives, St. John's University, Schubert Archives, Suffolk County,
The Juilliard School, The Riverside Church, and the Union Theological Seminary.
And that's just the local folk; the list includes archivists from around the
nation and around the world.
Scholars, too, have signed on, from virtually every local university -- CUNY,
NYU, Columbia, Cooper Union, Rutgers, Pace, New School, Barnard, Pratt, and
Polytech among others - and they have been joined by others from Yale, Harvard,
Cornell, Berkeley, Princeton, Stanford, Brown, and scores of other academic
institutions, from virtually every state in the Union, and from overseas as well.
In addition, there are journalists, teachers, librarians; people from publishing,
government, law, and banking; and just plain concerned citizens. (The full list
has been provided to the Council).
It's interesting to note that there has been a similarly broad based uproar -
from Democrats and Republicans, liberal and conservatives - over other recent
issues concerning access to public documents. The day before his gubernatorial
term expired, George W. Bush presented the Texas State Archivist with a paper to
sign that authorized him to whisk away 1,800 boxes of official documents to his
father's presidential library, where they would not be subject to Texas' strict
archives law, which requires a response to all requests for public documents
within 10 days. (This too was an unprecedented action: the Texas archives house
the official papers of every Texas governor, back to 1846). With the state
archivists in hot pursuit of the documents, and a ruling on their custody and
handling not due till May, the papers are being handled under an interim
memorandum of understanding that gives President Bush's lawyer the right to know
in advance which documents are being released. When the press asked for a packet
of Enron-related documents, the lawyer questioned whether archivists needed to
release them, but ultimately relented. "I just questioned whether it was helpful
to anyone," she said innocently. But the documents proved helpful indeed,
detailing as they did the cozy connections between George W. Bush and Kenny Boy
Lay. One wonders, if the national spotlights focused on the Enron scandal had
been less glaring, if those documents would so quickly have seen the light of
day.
In a far greater freedom of information scandal, now President Bush has
unilaterally abrogated the Presidential Records Act of 1978 (passed in the
aftermath of Richard Nixon's attempts to walk off with his official papers). His
Executive Order gives a sitting president - starting with himself - the right to
withhold the papers of any former president from being released as required by
law - even if the former president wishes them to be. In the short term, the
order is being used to seal the records of the Reagan Administration - a move
widely believed to issue from fears that uncomfortable information might emerge
about former high Reagan officials who are now high Bush II officials. In the
long run, the Society of American Archivists notes, if challenges now underway by
historians and others fail, access to vital historical records of the nation will
henceforth be governed by executive decree.
Is this really the moment we want to embark on such a deeply problematic step
that opens the door to the privatization of our own public papers?
I can understand why Mayor Bloomberg - who has far more pressing civic problems
to attend to - might not have wanted to repeal yet another of Giuliani's midnight
hour initiatives. (Though I admit I find his public comment dismissing the
importance of these papers as probably containing "nothing of interest" a
puzzling remark coming from an information specialist and a politically savvy
fellow). I can also understand Mr. Cardozo's unwillingness even to consider the
possibility of irregularities in the working out of the contract with Mr. Cohen.
But you, the Council, have a responsibility to take a longer term view, and to
consider the dangerous precedent being set.
In conclusion, I would urge you would to consider the following measures:
1) Work to reverse this agreement.
2) In any event, the Council should scrutinize it more closely. For one thing, it
should clarify the exact relationship between the original Agreement and the new
Plan. It should sort out which document governs, if language in the Plan
conflicts with language in the Agreement. Mr. Cohen stipulates "that the City
does not relinquish any rights granted to it by the agreement which are not
incorporated into the Plan." The Plan, that is to say, modifies, but does not
replace the agreement. Presumably he also believes that the Center does not
relinquish any such rights, either. But this leaves some particular points bathed
in murk.
Consider the matter of the final disposition of the documents. Mr.Cohen's clear
original intent, which he expressed to me, was to process the documents at the
Fortress and then house the originals in some respectable private institution.
Indeed the original agreement clearly states that: "the City acknowledges that it
is the Center's intent to enter into an arrangement with an educational or
similar institute for the permanent housing or display of the Documents or copies
of the Documents" (the latter option clearly a fallback plan). It also says: "the
Documents, as catalogued and organized, will ultimately be permanently maintained
at a site to be determined". At one point it even implies the decision as to
future disposition rests with the Center: "In the event that the Center
determines, following copying of the Documents, that it wishes [my emphasis] to
return the Documents to the City, the City shall receive a copy of the finding
aid prepared by the Center." The agreement also makes repeated reference to some
other future "facility": "The Center shall hold, maintain, and Process the
Documents at the Facility, at any subsequent facility." [sic]
This clearly proved to be a fantasy. Nobody wanted the official papers. Cohen
told the New York Times that "the Morgan and New York Public Libraries expressed
interest in housing the archive but less interest in doing the actual archival
work" - but this has been flatly denied by Paul LeClerc, head of the Public. What
he actually told Mr. Cohen was that while the Library would be interested in
receiving Mr. Giuliani's private papers - again that vexing distinction between
public and private Mr. Cohen has such trouble grasping - "it had no interest in
the archives of the Giuliani administration." Quite the opposite: LeClerc
"expressed the belief that the archives are city property." The Morgan also
denied Mr. Cohen's characterization of their conversation.
It would seem that the Plan has now recognized this reality. Mr. Cohen's letter
to Commissioner of Records Andersson notes that under the Plan, the Center has
undertaken "to provide to the Municipal Archives, after processing has been
completed, not only the originals of all records" but also duplicates. The actual
Plan, however, fact says something close to this, but slightly different, and
this distinction might perhaps be legally significant, as it is no longer
categorical but contingent: "All original records," says the Plan, "will be
transferred to the Municipal Archives at a time to be agreed upon by the Center
and the Archives."
What happens if they don't agree? What happens if the Center balks, if Mr.
Giuliani reverts to stonewalling mode once the bright lights of publicity have
gone dim, and continues to maintain possession? Where is the express and binding
provision in the Agreement - as opposed to proposed but nonbinding three year
timetable in the Plan (which itself contains one loophole allowing a lengthier
holding period in the all too likely event they have to process a lot of FOIL
requests) - as to when the original documents must be returned? If this
arrangement is allowed to proceed, which I hope it won't be, it should at least
build in some more rigorous safeguards, and some timetables with teeth. And in
any event, if we have in fact put the kibosh on the original intention of
shipping the public's papers off to a private university, lets remove all
vestiges of the former intention that still litter the governing Agreement.
I would suggest the Council also closely scrutinize the issue of finances. Mr.
Cohen told me he was prepared to spend over a million dollars processing and
promulgating the papers. But when I suggested to Mr. Coles that they take some of
that million and give it to the archives, he said that, in fact, they had "no
money." That they would now have to go out and raise it.
What if they don't get it? What if there's another stock market crash and their
wealthy friends don't up come with the cash? How will they pay the archivists to
rush them into the promised accessibility? Will the papers remain sequestered
while they beat the bushes?
3) I would urge the Council to outlaw similar arrangements in the future
4) Finally, on a more positive note, I would suggest that we could avoid such
problems in the future if properly funded the Municipal archives. It could
certainly use new permanent staff in every unit, but given the current budget
situation perhaps it could be given some temporary or contract workers. When
sunnier times arrive, moreover, the city should consider rehousing the Archives
in larger facilities. More resources would also allow it to digitize its
collections; improve the way patrons know about its collections and their
contents, thus fulfilling the goals of enhanced accessibility which the public
and the Giuliani people share - but for all the city's mayors, not just its
currently favorite son.
Mike Wallace is Distinguished Professor of History at John Jay College (CUNY),
Director of the Gotham Center for New York City History (at the CUNY Graduate
Center), currently a Fellow of the New York Public Library's Center for Scholars
and Writers, and co-author of the Pulitzer Prize-winning Gotham: A History of New
York City to 1898.
For more information, contact Dr. Suzanne Wasserman, Associate Director of the
Gotham Center. Gotham@gc.cuny.edu. 212 817 8460. And consult the web site at
www.gothamcenter.org.
Back
|
