[Editor's note [of Government Record News]: Ms. Janet Linde of the Archivists Round Table of Metropolitan New York and Ms. Linda Edgerly, Director, Information and Archival Services, Inc., The Winthrop Group, made presentations at the Mid-Atlantic Regional Archives Conference (MARAC) Spring 2003 Meeting held in Trenton, New Jersey, April 24 - 26, 2003. The session, introduced by Mr. Robert Sink of the Center for Jewish History was entitled, "Who Owns Hizzoner's Records? Civic Ownership of Executive Records." While Ms. Edgerly was unable to submit an article, the editor thanks both Ms. Linde and Mr. Sink for their contributions, and asks MARAC's forgiveness of his ongoing crass opportunism.]
Introduction
Robert Sink
Center for Jewish History
The handling of Mayor Rudolph Giuliani's records raises at least four important archival issues: custody of public records, access to those records, the adequacy of the New York City public records law, and the adequacy of funding for the City's Department of Records and Information Services (DORIS). On November 20, 2001 , the Giuliani Center for Urban Affairs was registered as an organization with the state of New York . This was just six weeks before the end of Rudolph Giuliani's final term as Mayor of New York City.
On Christmas Eve 2001, the Commissioner of DORIS (an appointee of the Mayor) signed a contract with the Giuliani Center that provided that the Mayor's records would be moved to a private facility, that the records would be processed at no cost to the City, and that the records would then be returned to the City. The Giuliani Center then contracted with the Winthrop Group to do the processing using experienced professional archivists.
These agreements became public knowledge in January 2002, and several public interest groups such as the Citizen's Union and Common Cause asked Mayor Bloomberg (Giuliani's successor) to cancel the contract. Ten days later the NYC Archivists Round Table, the Mid-Atlantic Regional Archives Conference, and the Society of American Archivist make a similar request of Bloomberg. The Bloomberg administration, however, made it clear that they would not intervene in the controversy.
The City Council held hearings on the issue in February and around that time the New York State Freedom of Information Law (FOIL) ombudsman ruled that anything in the Mayor's recordkeeping system was a public record and thus could be requested under FOIL. In March, the City Council drafted legislation but largely ignored suggestions from archivists and historians to strengthen the public records law. The Council took no action on its own draft and the issue receded for about six months.
In January 2003 the Council again took up the issue, and legislation was passed in March. The new law was not retroactive and thus did not explicitly cover the Giuliani records. It did have some improvements but still ignored most archival concerns. Finally, it created a review board to oversee DORIS and mandated that it must have one archivist and one historian among its members. The archival community recognized that the result was a varied one with some gains but also several lost opportunities.
This brief overview requires a few additional points to provide context for assessing the professional issues.
1. There are weak precedents in New York City for records to automatically to go to DORIS . A local community college has custody of the City Council's records for instance.
2. That same community college has had similar contracts with DORIS to process another Mayor's records.
3. Even the local archival group sponsored a meeting recently which focused on a City agency that asserts that all of its records are active and should not go to DORIS . The program's speakers were from an architectural firm that has a contract to do the archival processing of the agency's records.
4. DORIS had been under attack from the start of the Giuliani administration and suffered budget cuts and staff reductions over his eight years in office. I know that both Janet and Linda agree on the need to reverse this situation.
A Community Responds
Janet Linde
Archivists Round Table of Metropolitan New York
The removal of the records of the Giuliani mayoral administration took place during a year of purposeful assaults on the concept of public ownership of the records of publicly-elected officials and the public's rights of access to those records. During the same 12-month period, the records of the Bush gubernatorial administration were sent to the Presidential Library of the first President Bush, and the President issued an Executive Order that effectively gutted the access provisions in the Presidential Records Act.
From a local viewpoint, the removal of the Mayor's papers from the custody of the City of New York was seen as an affront to the hard-pressed New York City Department of Records and Information Services (DORIS), an agency that had provided access to mayoral records throughout the last decade despite a 47% reduction in staff, most of which took place during the Giuliani administrations. Thus, the Giuliani situation resonated and played out in relation to both national and local issues and situations.
How do archivists formulate a response to public records custody issues that is ethical, professionally balanced and, insofar as possible, separated from the inevitable politics of such situations?
It was important to set up basic rules about what this campaign was going to be about. In the case of the Giuliani mayoral records, three principles guided the campaign. First, it was decided the campaign would be based on solid public records principles; second, the campaign would try to gain more support for (DORIS), emphasizing the government's responsibility to care for its records; and third, the question of custody should be separated to some extent from the question of funding (a concept that was sometimes difficult to balance with goal two). In addition, the campaign was to focus on the actions of the former mayor and the officials of the Giuliani Center and not on the Winthrop Group. In selecting the Winthrop Group, the Giuliani Center had selected qualified archivists to process the records.
During the year long debate, a constant refrain in the media and advocate commentary on the loss of the Giuliani records was that, to some extent, the fight for those particular records had been lost as soon as the locked trucks carted the records out of the City's custody on New Years' Eve. Once the records left public custody, many said, there was no way to know what had happened to them.
As archivists we may take some comfort in the fact that once the Winthrop archivists began their work on the records, professional controls would provide safeguards against any unauthorized disposal or removal of records. However, we don't know what happened to the records before the Winthrop archivists began their work but after the records left public custody. The only documentation that was initially provided to identify the contents of the records consisted of a two-page listing, one page listing the major paper record groups and the series of audiovisual records and artifacts and the other listing records series with no indications of the volume or dates of the records.
With public records, everything begins with the issue of custody. The only way to ensure the integrity of the archival life cycle, from appraisal and accessioning, through processing, to the provision of access to the public, is for the custody of public records to be in the hands of archivists who are paid out of public monies. I do not say this to cast any aspersions on the ethics of archivists who work at private universities or for private companies or, as in my case, for private non-profits. Nor do I pretend that public archivists never compromise their principles because of pressures from their various bosses, many of whom do inhabit a highly politicized world. However, I do believe that within government archives there are often checks and balances that prevent public archivists from allowing perversions of the integrity of public records and that support them when they try to keep infractions from taking place.
Access issues were also important to those advocating continuous public custody of the Giuliani papers. The first version of New York City 's contract with the Giuliani Center gave Giuliani unprecedented rights to control access to the records of his administration. Mayor Giuliani would have had the right to block public access to any documents in which he deemed he had a "private interest." Further, that arrangement essentially gave a private entity priority of access to the documents. The Giuliani Center had unfettered access to the records, while the public had no access at all.
Possibly driven by public outcry, an advisory opinion was issued by Robert Freeman, director of the New York State 's Committee on Open Government, stating that sections of the agreement were "inconsistent with the State Freedom of Information Law (FOIL)." By the time of the first New York City Council Hearings in April, a new contract had been executed that changed the access provisions to remove the former mayor from the access process. Access, however, was only to be permitted through FOIL requests to the City Corporation Counsel who would vet them before sending them on to DORIS and to the archivists at the Fortress.
This process was to be in place for three years until the records were returned to DORIS. In addition, the contract still contained several categories of blanket restrictions. For instance, the Office of the Corporation Counsel (OCC), rather than professional archivists, would determine which records held by the Center were official government documents and which were the private records of former Mayor Giuliani or another individual.
Other categories of records were subject to OCC review, including records dealing with matters relating to City security and law enforcement, records considered to be of a private nature, and records relating to current or anticipated litigation or otherwise legally privileged. The NYC archival community, and others, were concerned that the categories were overly broad and vague, that there was no statutory basis for the categories, that there were no set time limits for restrictions, that there was no indication as to what would happen to restricted records, and that all records which may be security-related, privileged or private were to be brought to the attention of the OCC.
It is important to understand that the citizens of New York City have always had access to mayoral records soon after an administration ended. Even though it might take years for a complete processing job to be finished, DORIS archivists would survey mayoral records upon receipt and identify series that needed more detailed attention before access could be allowed, usually because of concerns for individual privacy, and which series could be opened immediately.
The fact that researchers could only get access to the Giuliani records through a laborious, time-consuming, and usually unsatisfactory process for three years was not well received by the research public or by citizens with evidential and informational needs for the records. These records included documentation of the City's response to 9/11, a subject on which the former mayor has already published a book - a book that no one has been able to effectively examine because the records are not available.
The NYC archival community failed to convince the City Council to change the terms of access to the Giuliani records during the period of the processing. However, the legislation that was passed by the Council in February 2003 contained the following language: "Nothing in this subdivision should be construed to limit access by the public to city records. The department [DORIS] shall be responsible for granting such access to the public."
In addition, the Declaration of Intent and Findings that opens the bill states: "The professional archiving of and accessibility to these records are cornerstones of a free society...The Council proposed this legislation after hearing testimony from expert historians, archivists, and good government advocates regarding the proper handling of important historical documents so as to maintain their integrity and avoid any selective denial of access to such records, or any appearance thereof."
"It is important that, when others look back at any period in history, they have, to whatever extent possible, access to the complete and accurate record of the City's public office holders and their administrations...The measures instituted by this legislation also seek to better ensure equal access to all members of the public by keeping historical records in the custody of a public entity dedicated to the service of the City of New York. In so doing, the Council expects to facilitate DORIS's Charter-mandated mission to 'ensure that all significant research material pertaining to the operations of the City as well as other municipalities shall be preserved and readily available for use'[.]"
Editor's PostScript: On October 15, 2003, the New York Archivists Round Table (ART) bestowed on Janet Linde ART's Award for Archival Achievement. Among other achievements, ART cited Ms. Linde's, "perseverance, energy, and patience over more than a year of dealing with this issue - and above all, for her eloquent articulation of the value of open access to government.
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