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Cuomo's "Leave No Trace" Administration Casts Shadows Over NY Government

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“Create Open NY” is the fourth item on a list of prominent issues New York Governor Andrew Cuomo highlighted as part of his agenda to “Clean Up Albany” -- “a comprehensive plan for how to fix the State government” that he released in June 2011, seven months after taking office. Although most of the "Open NY" section targets how to use technology to process and make public the “staggering amounts of valuable information” (page 65) the state possesses in a data catalog, other parts of “Clean Up Albany” also indicate ambitious updates to ethics and disclosure laws and their enforcement.

It almost makes you think that Cuomo cares about government transparency...at least, as long as it doesn’t apply to his office.

According to recent media reports, the Cuomo administration is doing everything in its power to reduce the amount of valuable information about their operations to zero. The abuses listed include limiting staff communications to telephone chats and untraceable Blackberry messages (rather than FOI-able email, text, or instant messages) and reports about record destruction related to Cuomo’s service as state Attorney General. This kind of calculated, selective disclosure, if true, can not be tolerated.

Last we checked, the materials generated by state executives and their senior staff are just as relevant to the public as the data about budget spending and contracts talked about in Cuomo’s “Open NY” report. Retaining these email communications and archival materials provides vital insight into the process of governance -- not just the approved outcomes. Although requiring disclosure for the communications of top officials can be complicated, we’ve put to rest whether or not the public right to access these records exists -- and we’ve created appropriate restrictions to allow for confidentiality and security exemptions. In this context, the need to go a step further -- to not (just) lock up public records but to prevent their existence in the first place -- is extreme.

To be fair, the letter of the law gives Governor Cuomo a long leash: According to New York law, outside a few specified documents, the governor's office is only legally responsible for retaining what he deems “of sufficient value for preservation.” And, to his credit, Cuomo didn’t accept all the slack: On July 2, 2012, he released a record-keeping policy outlining the various categories of records dealt with by his office and timelines for retention (when applicable).

But writing policy doesn’t create a clean slate, nor does it grant license to avoid the constraints of said policy (let alone to flout open records laws already on the books). The best reporting to-date has covered Cuomo’s use of Blackberry PIN communication, a system that allows for email-sized communications to pass from one Blackberry to another without leaving a traceable footprint. Actual email is reportedly left for nonsubstantive communications between staffers. Cuomo himself never touches the stuff.

Although Cuomo’s spokesman would prefer to pass these operations off as “normal, standard offices practices” to ensure confidentiality, let’s get real. It’s “normal” to use email. Email is subject to disclosure under public records laws and Blackberry PIN messages are not -- and neither are telephone conversations and other communication mediums that leave no trace or record of their existence. The media has speculated as to the motive behind the decision to operate this way -- lessons learned as NY Attorney General, a looming 2016 Presidential bid -- but Cuomo’s motivation is irrelevant. One doesn’t just stumble into conducting official business via recordless operations. The decision to do so is calculated and is an obvious attempt to evade standard disclosure requirements. (Remember: We created exemptions in our open records laws for a reason.)

History isn’t supposed to be flattering. It’s supposed to reflect, to the best extent possible, the events as they happened. Executive records are essential for understanding how and why decisions were made and what was the context and working conditions in which discussions occurred. Sometimes these records reveal unsavory dealings. More often, they don’t. When emails from former Governor Sarah Palin were released to the public in June 2011, the wild scandals some people wanted to see just didn’t appear.

Palin’s emails were made public because, shortly after she was named a vice presidential candidate, various media organizations and individuals requested these records through Alaska’s public record law. Using those emails, Sunlight created a simple web tool -- Sarah’s Inbox -- that let you examine all the emails sent or received by Alaska’s 9th Governor in a familiar format.

It’s interesting to reflect that if the Cuomo administration continues to operate like a black hole, there will never be an Andrew’s Inbox.

“Open NY” is supposed to “use the power of digital information to bring about the beginnings of a new era of public participation in everyday governance” -- in other words, the opposite of the way the Cuomo administration operates. New Yorkers should demand more from their governor because, in his own words, “You can always have more transparency.”