Gov. Andrew Cuomo is re-examining boxes of records from his attorney general tenure that have been sent to the state archives, withholding some documents from public view.
The New York Times on Tuesday called it "editing" of historic records. The Times Union said some records its reporters copied at the archives, including a 2007 internal memo, were later pulled from public view by the governor's staff.
The Cuomo administration and the state archives say that records were at first made public in error, including those subject to attorney-client protections.
At issue was an internal memo written by a Cuomo lawyer summarizing the 2007 investigation by then-Attorney General Cuomo into former state Senate Majority Leader Joseph Bruno's use of state aircraft for official and political purposes.
The Times Union released the memo Tuesday afternoon. The memo said Bruno had legitimate business on May 17 in New York City, then stayed for a political fundraiser before flying home the next day.
"He stayed for a fundraiser and took the aircraft back on the 18th with no meetings whatsoever, a fact we did not note in the report," the memo said.
On Tuesday, however, Cuomo aides said the memo prepared for the administration to defend its investigation was in error. Cuomo's 2007 report does note Bruno's lack of any state business that day in more than one passage. But Cuomo's analysis at the time was that the aircraft use policy under former Gov. Eliot Spitzer was so vague Bruno couldn't be accused of violating it even for the May 18 flight home.
Robert Freeman, executive director of the state Committee on Open Government, agreed. When Freeman was read the memo Tuesday, he said it appeared to contain substantial opinion between lawyers, which can be withheld from public disclosure under the state Freedom of Information Law.
Former Attorney General Dennis Vacco also said in an interview that releasing that memo publicly would be an "exceedingly bad precedent." He said attorney general records must be carefully examined before they are released to avoid having a "chilling effect" on future investigations and potential informants.
He said he recalls clear rules for release of his archived material from his days in office but doesn't recall if he was contacted to consult on release of any records after he left the office.
Archives officials say the governor's staff is simply "pre-screening" archived material that can be released publicly under the state Freedom of Information Law. They call it a long-standing practice for sensitive material.
A former state archivist told the Times Union the practice is "very concerning."
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