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"It is a signed agreement, but that does not make it a legal document," said Manbeck. "I would think as a lawyer that Giuliani would have done it legally." Gracia-Peña pointed out, for example, that Ed Koch managed to get many of his records into an archive at La Guardia College legally. "The administration sent a note, asking that the files be transferred directly to La Guardia. I said no, but I supervised the microfilming and copying" of the Koch records, ultimately sending "personal" originals and "copies of the official papers" to the college. "My credo was that any records of government belong to the government. Make sure they're not destroyed."
Gracia-Peña said that in the past when administrations changed, he and his staff "physically went to the mayor's office and collected the papers, packing and sorting them ourselves."
In addition to charter violations, the deal allows private citizen Giuliani to screen the documents and gives him veto power over what to make public, an apparent violation of state freedom-of-information laws (FOIL). "Whenever Rudolph W. Giuliani has a personal interest or right in a Document separate and apart from the interests and rights of the City," the contract says, "his approval shall be required before any such document may be released or disclosed to the public."
Indeed, in the first clause of its first article, the agreement even grants the center a role in determining the availability of documents without a claimed Giuliani "personal interest." It permits the center to "determine" if any record "is not a public document," requiring Giuliani to contact the city about any records it decides are not public. "The Parties shall reach a determination as to the proper treatment of such a document," the clause concludes, implying that unless both agree it's a public document, it will not be released.
Robert Freeman, the director of the state's Committee on Open Government, cited three court decisions countering the terms of the Giuliani deal, including a unanimous Court of Appeals ruling that reversed a decision protecting the so-called "personal" papers of former Albany mayor Erastus Corning. Finding that any archival records maintained by a government agency are public, the court blasted "an unreviewable prescreening of documents" by a public agencymuch less a private individualas creating the opportunity for "an uncooperative and obdurate" official "to block an entirely legitimate FOIL request." The decision also found that documents need not "evince some governmental purpose" to be covered by information laws.
"Rudy Giuliani's feelings about what's public don't matter," said Freeman when confronted with a copy of the mayor's records contract. "The lawnot a private partydetermines what's public. An individual has no legal standing in terms of requiring or prohibiting disclosure." Freeman, who has run the office for almost three decades, said he "does not know of any precedent" for the Giuliani contract in state history.
Pointing out that the city charter obligates the records department to "prepare retention schedules for papers, mandating that they can't be disposed of until certain time periods are reached," Freeman said, "We can't shred documents because we don't want them around anymore." The Giuliani deal, Freeman added, "tends to represent" the department's "relinquishing of its authority."
Rudy Giuliani has spent a lifetime dictating his own legend. When he was U.S. attorney in Manhattan, he abruptly ended the longtime practice of publishing annual reports, making reporters and others utterly dependent on his version of how productive the office was. And now, while peddling the story of his mayoralty for millions to publishers and moviemakers, he's gained exclusive control over a public record ordinarily available to all.
Gabe Pressman, the city's greatest television newsman, did an op-ed piece in the Timeslast week celebrating Bloomberg's destruction of Giuliani's eight-year stonewall. As accurate as this piece may prove to be about Bloomberg, it failed to note that the wall around Giuliani's public life has only relocated to a fortress in Queens. Giuliani does not trust the Bloomberg administration to resist FOIL requests for him, nor does he trust the charter to safeguard his myth. He will shape it himself for profit, laundering the people's papers through his own cadre of mercenaries and true believers, leaving for the public eye only what he sees fit.