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NYPIRG shares the view of many archivists and historians that the records of
former Mayor Rudolph Giuliani should not have been spirited away at the close of
his administration in December. We urge the City Council to take action to
protect public access to these records, as well as to enact legislation to detail
the process for handling future archival records of mayors.
As you know, on December 24th, 2002, Mayor Giuliani's former Commissioner of
Records and Information Services and the Rudolph W. Giuliani Center for Urban
Affairs signed an agreement resulting in the transfer of the former Mayor's
records to the Center.
The contract was a product of self-dealing and conflict of interest. Indeed,
there is a cloud over these records that will never go away. Since they were
taken out of public custody to a private warehouse without an inventory, the
public will never know if public records were removed or destroyed.
City law should be amended to prohibit this kind of self-dealing. It should
require that mayoral records be physically retained by the City for at least 90
days following the end of a mayoral term. It should also bar an outgoing mayor
from negotiating a contract regarding the custody and maintenance of his or her
records. These policies would guarantee an immediate "chain of custody" and
insured that a less self-interested party participates in the archiving of their
records. The Council should consider whether this policy should apply to other
city officials.
The Charter should also be amended to prohibit the custody of mayoral records by
any entity directly controlled-or directly funded in whole or in part-by a former
mayor or his appointees. As the Giuliani Center's own Archival Standards and
Processing Plan makes clear, an archivist is allowed significant discretion: "The
Archivist must use his/her own judgment and bring all records which may be
security-related, privileged or private to the attention of the Office of
Corporation Counsel." The same cloud over the records will hover over whichever
archivist is directed and paid for by a former mayor.
The Council should consider a law to permit former mayors to direct private
funding to the Municipal Archives for the purposes of archiving their records.
The law should allow the Municipal Archives, not the mayor, to enter into
arrangements with independent academic institutions if necessary. The key is not
to have the archivists directly on the payroll of the former mayor. It is our
understanding that in the case of Presidential Libraries, the archivists are
federal employees.
The Council should adopt these mayoral archival policies retroactively, to apply
to the December 24th contract in question here. There should be no bar to setting
archival policies by law and then to require that any arrangement in violation of
those policies be rescinded within 90 days. Article II of the contract in fact
allows the City to terminate the agreement for "any reason upon 90 days written
notice."
At a minimum, the Council should adopt a resolution calling on the Bloomberg
Administration to cancel the contract and regain custody of the documents.
Finally, NYPIRG remains concerned that the current contract terms themselves
violate the state's Freedom of Information Law.
On January 25th, we wrote current Corporation Counsel Michael Cardozo-along with
Citizens Union and Common Cause/NY-urging the City to cancel or at least
renegotiate the contract. (A copy of the letter is attached.) Unfortunately, the
City has taken neither step. Instead, the City has simply consented to an
"Archival Standards and Processing Plan" drafted by the Rudolph W. Giuliani
Center.
There is a direct conflict between the contract and the new plan. Clause I (M) of
the contract says: "Whenever Rudolph W. Giuliani has a personal interest or right
in a Document separate and apart from the interests and rights of the City, his
approval shall be required before any such document may be released or disclosed
to the public."
Numerous experts, including Robert Freeman the executive director of the New York
State Committee on Open Government, have concluded that this provision violates
the state's Freedom of Information Law. In an advisory opinion dated February
14th, 2002, Mr. Freeman wrote: "Since the documents are City records, and since
all City records are subject to rights of access conferred upon the public by the
Freedom of Information Law, the former mayor has no 'right' to determine which
documents are accessible to the public. On the contrary, the law serves as the
basis for determining rights of access."
The plan, which was drafted "pursuant to Article I (E)" of the contract, states:
"The City shall be the sole determiner of whether a record is an official
document of the City or a private document belonging to former Mayor Giuliani or
another individual. Such determinations shall in each case be made by the Office
of the Corporation Counsel... In the case of a request for access to a private
document contained in the collection but belonging to former Mayor Giuliani or
another individual, in the case of a request made under FOIL, the City shall be
the sole determiner of whether and to what extent such access shall be granted."
Despite the wording of the plan, Clause I (M) stays in place unchanged, and could
have effect in some future legal conflict over access to the records. It should
be removed in a renegotiated contract.
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