Cuomo thanks N.Y. in farewell
What records of his time in office will be preserved is unclear
In 2011, Gov. Andrew M. Cuomo took office and vowed to run “the most transparent and accountable” administration in history.
But after a slew of records documenting his time as attorney general were sent to the State Archives, as required, one of his top aides and confidantes, Linda Lacewell, spent almost eight hours in the library pulling files that were “made public in error,” according to a Times Union article published at the time. Her visit occurred after Cuomo’s office was made aware that several Times Union report
ers had taken steps to begin inspecting the files.
Still, there was apparently no law stopping Lacewell from doing so.
As Cuomo departed Albany last week, U-haul in tow, questions remain about the preservation of his official records, all of which become personal property once he leaves office. That is arguably a gap in legislation experts say is “hugely problematic,” given the numerous scandals targeting his administration.
Richard Azzopardi, a senior adviser and spokesman for the governor, did not immediately respond to questions about where the governor’s papers will be sent or what would be included in the collection.
New York law states that the governor’s papers are not automatically made property of the State Archives, leaving the Executive Chamber with discretion as to what documents are seen by the public and which are kept hidden.
Last week, state Sen. Daphne Jordan, R-halfmoon, introduced legislation that would make the Executive Chamber retain all records, including emails and electronic metadata, for at least two years; five years if they’re expected to be a part of litigation or two years after litigation is no longer anticipated.
The bill defines litigation as civil matters, criminal matters, impeachment matters and investigations by law enforcement or legislative bodies.
Cuomo faces investigations from local, state and federal authorities regarding an alleged cover up of COVID -19 nursing home death data, his directing preferential COVID -19 testing for family members — including CNN’S Chris Cuomo — and delegating state resources to help produce his book “American Crisis: Leadership Lessons from the COVID -19 Pandemic.”
The governor’s office and members of his staff have received subpoenas from law enforcement agencies for records that include emails and telephone calls. Those may have included preservation orders, which would forbid the destruction of records relating to an ongoing investigation.
The Legislature is not due back until January, meaning that, if it is even taken up and passed, it’s unlikely that Jordan’s bill would apply to Cuomo’s administration. Democrats control both the Senate and Assembly. Jordan has six Republican Senate co-sponsors for the legislation.
But it’s unclear if there’s bipartisan support for its enactment.
New York is one of the few states that doesn’t require an outgoing administration to send their papers to the State Archives. Gov. David Paterson vetoed legislation in 2009 and 2010 that would have required governors to do so, as did Gov. George Pataki during his time in office.
“The governor could hire a dumpster and dump all the stuff if they wanted to,” said Brian Keough, head of the M.E. Grenander Department of Special Collections and Archives at the University of Albany. “But they usually don’t do that.”
Ualbany is home to more than 50 collections of records from state and federal lawmakers, including former U.S. Rep. Anthony Weiner.
Still, state and federal laws governing the retention and disclosure of public records largely exclude Congress and New York’s Legislature, which is not subject to the same rules as state and local government agencies.
“Emails, legislative reports, position papers, a lot of those things aren’t going to be available,” Keough said. “If (historians) are writing only based on public statements and press releases, that’s not really going to give you any historical context.”
Transparency laws are typically created in reaction to scandal, instead of as precautionary measures, said Sarah Lamdan, a law professor at City University of New York, specializing in government information, access and transparency.
“We tend to not address transparency problems until it’s clear that there’s shady government activity going on,” Lamdan said.
In 1974, Congress passed the Presidential Recordings and Materials Preservation Act in response to President Richard M. Nixon’s resignation. The law placed his administration’s records, including the White House tapes, in federal custody, preventing their destruction.
The recordings are stored at the National Archives.
Four years later, Congress enacted the Presidential Records Act, giving the public ownership of presidential records, even after a president’s term ends. Presidents are entitled to several restrictions for up to 12 years after their time in office, according to the law.
A particular point Lamdan labels as troublesome is the lack of oversight for a governor’s emails. “Oftentimes, the most concerning and most critical types of records are email records because that’s how we convey so much information,” she said.
While members of Cuomo’s administration used emails to communicate, he was known to rarely use electronic mail. The administration also used Blackberry “pin” messages to communicate. That meant many of their electronic messages were not kept on computer servers because Blackberry pins are relayed by cellphone towers and the only record of those may be on the devices or with the Canadian software company that is known to resist U.S. subpoenas.
Still, there is evidence of a multitude of records kept by the administration. The recent investigation of Cuomo by the office of Attorney General Letitia James included a review of roughly 70,000 records for a recently released 165-page report that concluded Cuomo was a serial sexual harasser. The evidence included emails, texts and pictures.
After Lacewell, one of Cuomo’s top aides, removed many of Cuomo’s attorney general documents from public view, reporters were allowed to see a condensed set of materials, hindering indepth examination of his time as attorney general.
Keough said that any transparency law targeting the governor’s records would need to implement nonpartisan archival procedures, but that “getting a law in the books is definitely the first step.”
When asked if he’s expecting to receive Cuomo’s records, Keough said, “We’d be more than delighted to take them in. I could start working with them on Monday.”
But, he added, “I don’t think that would happen.”
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“The governor could hire a dumpster and dump all the stuff if they wanted to. But they usually don’t do that.”
— Brian Keough, head of the M.E. Grenander Department of Special Collections and Archives at the University of Albany