N.Y.’s FOIL can’t be foiled
When he was governor, Andrew Cuomo’s administration was not a fan of the state Freedom of Information Law. FOIL allows anyone, from the general public to the press, to have access to the records of state and local government in New York. And Cuomo, like all governors, liked to keep control of the info.
But the law says otherwise and, with only narrow exceptions, these materials must be turned over when requested.
Cuomo is now using FOIL to seek records held by state Attorney General Tish James that come from the investigation of sexual harassment charges against Cuomo conducted by private lawyers Anne Clark and Joon Kim, who were retained by James. Their report, published Aug. 3, 2021, led directly to Cuomo resigning.
Cuomo wants the 179 interview memos prepared by Clark and Kim and their associates. He says that he needs the memos for his legal defense in several cases where he has been sued by the women named in the report. But why he wants the memos is irrelevant. Under FOIL, everyone must have access to those records.
The Daily News wanted the same memos, but our FOIL request was rejected because the AG wrongly claimed they were covered by the attorney-client privilege and the attorney work product exemption, the same excuses offered to Cuomo.
But now Cuomo has sued the AG for violating the FOIL statute. He filed his case on Jan. 18 (the last possible day of the 180 days since his final FOIL rejection) and it is before Acting Manhattan state Supreme Court Justice Nicholas Moyne.
Moyne’s task is easy. As the memos are not an “unwarranted invasion of personal privacy” such as medical-related or containing personal financial data like Social Security numbers and bank accounts or sealed juvenile rap sheets or secret grand jury materials or trademarks or any of the exempt categories, they must be turned over.
As to the AG’s two claims, attorney-client privilege and attorney work product, the memos are neither. They are a simple recitation of facts from a witness, offering no legal advice. Potential litigation is not a factor, in fact the interviews and the memos didn’t even need to have been conducted and prepared by lawyers. Neither does any “intra-agency” exclusion apply.
Our interest in the memos came about when we saw the memo of former state official Howard Zemsky where he said that he had a sexual relationship with one of the complainants, Lindsey Boylan, a relationship that she denied under oath in her sworn deposition to Clark and Kim. What do the other 178 memos show?
A week after Cuomo sued James for not following FOIL, Brooklyn U.S. Attorney Breon Peace and the Civil Rights Division of the Department of Justice announced that “the United States found that former Gov. Cuomo subjected at least 13 female employees of New York State to a sexually hostile work environment.”
But the feds didn’t interview Cuomo or apparently any of the complainants. They did use the Clark/Kim report and perhaps even the interview memos.
The Clark/Kim report identified nine state employees and two nonemployees they say were ill-treated by Cuomo. Where did the four other state employees come from? Perhaps the answer is in the 179 memos. Justice Moyne, please follow the law and make the memos public.