Cuomo’s office won’t disclose its exchanges
Gov. Andrew M. Cuomo’s office is refusing to make public its correspondence with the U.S. Justice Department related to the administration’s handling of nursing homes and other long-term care facilities during the coronavirus pandemic.
The correspondence sought by the Times Union was triggered, in part, by an Aug. 26 letter to Cuomo from the Justice Department’s Civil Rights Division that sought a trove of records from the administration regarding the relatively small number of public nursing homes in New York, including “all state-issued guidance, directives, advisories, or executive orders regarding
admission of persons to public nursing homes ... as well as the dates each such document was in effect.”
The Justice Department had sought similar records at that time from Michigan, New Jersey and Pennsylvania, noting in a release that those states and New York had “required nursing homes to admit COVID -19 patients to their vulnerable populations, often without adequate testing.”
In October, the same unit of the Justice Department sent a second letter to New York — this time to the state health department — requesting records on private nursing homes and other longterm care facilities in New York.
The Cuomo administration’s exchanges with the Justice Department since last year, including any data provided to the U.S. Department of Health and Human Services, have been a focus of a separate investigation by the FBI and U.S. attorney’s office in Brooklyn. That probe, which was first reported by the Times Union on Feb. 17, is ongoing and has included interviews with dozens of current and former state health department officials in New York.
In a letter this week, the governor’s office denied the newspaper’s request for copies of its correspondence with the
Justice Department — which Cuomo had earlier suggested might be released — by asserting those records are exempt from disclosure because they were “compiled for law enforcement purposes” and the disclosure “would ... interfere with law enforcement investigations.”
It’s unclear how the Cuomo administration’s correspondence with the Justice Department’s Civil Rights Division constitutes records “compiled for law enforcement purposes.”
In its denial letter, the governor’s office also argued that portions of the records are exempt
from disclosure because their release “would constitute an unwarranted invasion of personal privacy.”
The administration’s refusal to make public its exchanges with the Justice Department follow a tumultuous back-and-forth between Cuomo’s office and the Legislature, which had been requesting similar records since last August. On Feb. 10, Secretary to the Governor Melissa Derosa and other administration members met in secret with key Democratic lawmakers in the Legislature and Derosa acknowledged they had withheld releasing full data on COVID -19 deaths in nursing homes because of their concerns about the Justice Department inquiries.
Cuomo and his top aides had since August characterized the Justice Department’s interest in its handling of nursing homes during the pandemic as a political hit orchestrated by members of President Donald J. Trump’s administration. But they have not assigned that same characterization to the more recent investigation by the FBI and U.S. attorney’s office in the Eastern District of New York.
The investigation being led by the FBI and federal prosecutors in Brooklyn is focusing on the data compiled and submitted to federal authorities by Cuomo’s administration. That effort is examining whether anyone was directed to manipulate or change data, including to benefit the governor’s public profile.
Last year, Cuomo authored a book on his handling of the pandemic. According to people briefed on discussions among members of his administration, there were discussions about keeping the governor’s public profile high as he became a national figure in his handling of the pandemic following months of daily briefings, including many that were broadcast on national cable outlets.
At a news conference on Feb. 19, Cuomo said his administration had provided “truthful information” to the Justice Department and that it “is a lie to say any numbers were inaccurate.”
The administration’s correspondence with the Justice Department included a Sept. 9 letter that was signed by a state Department of Health attorney in response to the federal agency’s Aug. 26 demand letter. It is among the records that Cuomo’s office is refusing to make public.
It has not been made clear whether the Aug. 26 letter from the Justice Department’s Civil Rights Division and the investigation by the U.S. attorney’s office in Brooklyn are related. However, the participants in the interviews being directed by the Brooklyn office include officials with the Justice Department’s main office in Washington, D.C., as well as investigators with the U.S. Department of Health and Human Services, according to people with direct knowledge of those interviews.
Cuomo’s office also has so far declined to release copies of any subpoenas that have been served on the administration, including the governor, in connection with the federal investigation.
During that Feb. 19 news conference, Cuomo also had sought to explain why his administration had withheld information from the Legislature (in addition to the press and the public.)
“We said we would pause the state Legislature’s request because we gave (the Department of Justice) precedence — true. We paused the state request and we told them that we paused the state requests. They were told and they knew,” Cuomo said. “Well, some were offended that they weren’t given precedence. I understand they are offended . ... I’ve spoken to the legislative leaders and we agree that we’re in the midst of dealing with a real pandemic.”
Two days before the governor made those comments, the Times Union had reported the probe by the U.S. attorney’s office in Brooklyn was in its early stages and focusing on the work of some of the senior members of the governor’s task force.
Nearly three weeks after the governor’s coronavirus task force was announced last year, the state health department issued an order on March 25 directing nursing homes and other longterm care facilities to accept residents who were being discharged from hospitals even if they were still testing positive for the infectious disease. The administration said it was following guidance from the U.S. Centers for Disease Control and Prevention.
The directive, which was rescinded less than two months later, has been the focus of a firestorm of criticism directed at Cuomo’s administration, including allegations that the order had contributed to the high number of fatalities of nursing home residents in New York. That assertion was largely dismissed in a report by the Department of Health that was released in July.
In January, the office of Attorney General Letitia James issued a scathing report that concluded the practice may have increased the risk of COVID -19 infections at the congregate facilities and that Cuomo’s administration had delayed reporting that thousands of additional nursing home residents died at hospitals after being infected in their residential facilities.