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New plan for Giuliani records still conflicts with law, official says
by Diego Ibarguen

February 15, 2002

NEW YORK (AP) -- A new plan outlining the archival of former mayor Rudolph Giuliani's records appears to conflict with rulings by state appellate courts because it distinguishes some records as public and others as private, the state's top Freedom of Information official said Friday.

"It seems to me that there are no private records," said Robert Freeman, director of the state's Committee on Open Government, in reference to language in the three-year plan, released Thursday by Corporation Counsel Michael Cardozo.

The plan, which details the archival process for Giuliani's records, was prepared as part of a contract signed Dec. 24 between the city and the Rudolph W. Giuliani Center for Urban Affairs, a new organization run by colleagues of the ex-mayor. The records were transferred to the center, though they remain the property of the city.

Cardozo said Thursday that archivists would process the documents over a three-year period, flagging all records that may be private or that relate to city security, law enforcement or pending litigation.

The original contract had been criticized by historians, archivists and public officials for apparently giving Giuliani power to restrict access to documents he deemed personal. Under the terms of the new plan, Cardozo would have authority to determine whether flagged records are public or private, and therefore, whether they are subject to the Freedom of Information Law.

Freeman, who on Wednesday issued an advisory opinion finding legal inconsistencies in the contract, said the law doesn't allow for a distinction of some records as "private," though it does restrict the contents of some public records.

"Every record, irrespective of origin, irrespective of function, that is maintained by or for a government agency falls within the framework of the Freedom of Information Law," Freeman said.

In his opinion, Freeman cited a 1980 state Court of Appeals ruling that held "the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and non-governmental activities, especially when both are carried on by the same person or persons."

Saul Cohen, president of the Giuliani Center, said he thought there had been a deliberate campaign to interpret the contract as giving Giuliani "a right to determine which papers are public and which are private."

"This is one of those great red herrings," he said. "It's the city's call (whether a document is public or private). Nothing has ever changed."

Cardozo did not immediately return a call seeking clarification of the issue on Friday.

Donna Lieberman, executive director of the New York Civil Liberties Union said that while she was pleased the new plan did not authorize a Giuliani veto on release of records, "we're still concerned about what appears to be prescreening by private archivists, rather than by the city."

Freeman, in his opinion, had cited an appellate decision that in 1987 rejected "unreviewable prescreening" because it "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 records from FOIL's reach by simply labeling it 'purely private.'"

Lieberman said her organization was analyzing the contract and new plan to determine whether to file a lawsuit seeking to overturn the agreement.

Historian Mike Wallace said the new plan would slow public access, apparently requiring that FOIL requests be filed to retrieve documents during the processing period. He also objected to the removal of municipal archivists from the process, since the documents are to be screened by private archivists and ruled on by the corporation counsel.

"The essential problem is that this continues to be done beyond the real-time, real-world purview of the municipal archivists," Wallace said.

Gene Russianoff, an attorney with the New York Public Interest Research Group, said his group has "the same view as the leading archivists of New York City history: that the documents should be under public custody and control."

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