FOIL Tish James’ record hiding
Andrew Cuomo, the former governor, is writing elsewhere in these pages today on the problem of illegal pot shops, which Manhattan Councilwoman Gale Brewer and her aide Sam Goldsmith are also opining on. Our stand on these thousands of outlaw retailers is well known and hopeful Albany lawmakers, having busted the budget deadline — the subject of another editorial today — will fix the mess.
But this editorial is about Cuomo and state Attorney General Tish James and Acting Manhattan state Supreme Court Justice Nicholas Moyne, who has the case of Cuomo vs. James, where the ex guv is suing James under the state Freedom of Information Law (FOIL) to get the 179 interview memos from the AG’s 2021 probe of sexual harassment claims against Cuomo. Moyne must find for Cuomo and release the memos.
The probe, by private lawyers Anne Clark and Joon Kim, produced an Aug. 3, 2021 report with complaints from 11 women and Cuomo resigned shortly thereafter, as we and others urged him to. But questions remain.
It seems very clear from the single interview memo that has surfaced that a witness committed perjury by lying under oath, which is why this Editorial Board wants all the memos. Cuomo is seeking the same records for his defense in two lawsuits filed against him by complainants, as well as the unredacted transcripts from the 41 sworn depositions. James previously published redacted transcripts on her website.
We submitted a FOIL two years ago for the interview memos. It was quickly rejected on the specious grounds that the documents are exempted by the attorney client privilege and being attorney work product, when neither applies. In their FOIL request and subsequent lawsuit, Cuomo’s lawyers (who are paid by the state) refer to how the Daily News was denied. In the Sept. 20, 2023 response to Cuomo’s administrative appeal, the AG wrote:
“You compared the time a response to your request will take to the time a response to an early 2022 FOIL request submitted by another requester [the Daily News] took, “a little over two months” from submission date to determination of an administrative appeal. The early 2022 [The News] request was for interview memoranda. And the determination in the early 2022 [The News] request was a denial rather than the partial granting of the [The News] request. Other than the overlap in some of the requested records, the two requests and the OAG’s responses to them are entirely distinguishable.”
Not so. They are entirely identical. Moyne needs to divide this case in two halves. One half is the unredacted transcripts from the 41 sworn depositions. The AG says that they are complying and have produced six of the 41. Cuomo says that is too slow and the records are still redacted, with one of the six transcripts having more redactions than the version on the AG’s website!
The other half of the litigation are the memos. The AG’s legal papers are largely silent on them and the claims of attorney client privilege and attorney work product exemption. Our request for the memos was flatly denied, as was Cuomo’s, but the AG isn’t saying that by only focusing on the slow-moving, still-redacted transcripts.
Judge Moyne, tell the AG to produce the memos.