An aide to Gov. Andrew M. Cuomo refuses to make public a trove of records that could shed light on the state’s economic development contracts, including the Buffalo Billion contracts that have sparked a federal investigation.
Mongthu Zago, the governor’s Freedom of Information Law officer, recently denied The Buffalo News’ request for phone logs, visitor logs, calendar entries and other notes that were created during the normal course of business – and would have been sent to federal prosecutors in Manhattan to respond to their subpoena.
Zago said the records can be withheld under New York’s Open Records Law because they were compiled for law enforcement purposes and would somehow interfere with a criminal investigation, specifically the “publicly disclosed ongoing law enforcement investigation with which we have offered our cooperation,” she told The News in a denial letter.
While The News intends to appeal, one of the state’s foremost authorities on New York’s sunshine laws, Robert J. Freeman, finds flaws in Zago’s reasoning.
The newspaper sought records created during the normal course of business – records that ordinarily would be released, said Freeman, the longtime executive director of New York’s Committee on Open Government. That a criminal investigation is underway does not change the fact they are public records, he said.
“Case law indicates that records prepared in the ordinary course of business generally do not fall within the exception involving records compiled for law enforcement purposes,” he said. “If records had been routinely disclosed in the past, the fact that they relate to an investigation should not alter rights of access.”
Just this month, a State Supreme Court judge in Nassau County emphasized that point in a ruling into whether the newspaper Newsday had a right to certain records from the Town of Oyster Bay. The town had denied some of Newsday’s requests on the grounds that the documents could affect a criminal investigation if made public.
But Judge Leonard D. Steinman called the town’s argument “wholly without merit.” The documents were not compiled for law enforcement purposes, he wrote in his decision, and “therefore cannot possibly be subject to the law enforcement exemption.”
Steinman went on to say that it would not bother him if the records revealed nefarious or criminal conduct that could be used in a criminal case. Bringing the information to light is Newsday’s mission and the role of New York’s Freedom of Information Law, the judge wrote.
“The town’s argument to the contrary reveals a misunderstanding (or perhaps contempt) of the FOIL statutes,” he added.
Federal prosecutors working for U.S. Attorney Preet Bharara in Manhattan have sent subpoenas to state agencies, state officials and several companies in a search for information about how the state has awarded major construction contracts, including contracts for Cuomo’s “Buffalo Billion” initiative to revitalize the economy in and around upstate New York’s largest city.
Further, there are hints that the prosecutors are trying to determine whether two men who were Cuomo insiders, Joseph Percoco and Todd Howe, profited by facilitating the awarding of certain contracts while in their private-sector roles.
The Buffalo News sent Cuomo’s office a request for records that would detail communication between Cuomo or his aides and Howe and Percoco. The newspaper also sought phone logs, visitor logs and other records created during the normal course of business that would show contact between the governor’s team and companies that have received large state contracts.
In its request, The News made clear that it wanted records created by the governor’s staff during the normal course of business and which would have gone to the federal prosecutors to meet the demands of their subpoena.
Cuomo hired Bart M. Schwartz, a former federal prosecutor, to conduct an internal inquiry independent of the federal investigation.
When he was hired in April, Schwartz said: “The state has reason to believe that in certain circumstances and regulatory approvals they have been defrauded by improper rigging and failures to disclose potential conflicts of interests by lobbyists and former state employees.”