Andrew Cuomo may be running for mayor, so the need to see the full scope of state Attorney General Tish James’ 2021 sexual harassment probe that helped push Cuomo to resign as governor is even more pertinent. The Daily News has been seeking the probe’s secret 156 interview memos for years and our state Freedom of Information Law (FOIL) request has been refused by James.
The same matter is before five justices of the Manhattan appellate court, who should order the AG to release the memos.
Wednesday afternoon the appeal was heard with Cuomo’s attorney Rita Glavin seeking the same records.
As he was making his argument, urging the court to keep the records hidden, Senior Assistant Solicitor General Matthew Grieco was interrupted by Justice Marsha Michael: “Counsel, they’re not pulling it out of thin air that the request was going to be denied. They rely on a denial to the Daily News for FOILable information as part of their reasoning.”
Grieco: “The denial by the Daily News was never administratively appealed.” That was wrong. Justice Sallie Manzanet-Daniels then asked Grieco: “Do we have anything on our record on that?” The answer to the court should have been yes. It is part of the record of this case, having been introduced in the trial court. After the argument ended, Grieco had to send a letter to the court:
“I write to correct a mistaken statement I made during today’s oral argument. I stated that a separate Freedom of Information Law (FOIL) request by the Daily News newspaper was not administratively appealed. I misspoke. The administrative appeal of the Daily News FOIL request was decided on April 11, 2022, under Request # G000079-020722.”
So, yes, for nearly three years, the AG’s office has been on record that the memos will never be released claiming that they are both covered by the attorney-client privilege and the attorney work product exemption. In fact, neither rule applies.
At another point in the argument, Justice Marsha Michael asked Grieco: “Counsel, can I inquire about one other thing? There was a mention regarding interview notes, that interview notes were not being turned over and have not been turned over. Is that the case? Have the interview notes been redacted yet turned over as part of the information handed over?”
Grieco: “That part of the production has not yet been reached.”
That was too cute by Grieco. The AG decided long ago in our request that they will not release the memos and that is what Grieco should have told Justice Michael.
Later on, Justice Lizbeth González asked Glavin: “So are you saying the Daily News FOIL request was exactly the same as Mr. Cuomo’s?” The answer is yes.
Justice Manzanet added: “The denial to the Daily News is a separate issue. That’s not apples and apples. We have a news agency wanting access to all this stuff and we have a person who was personally affected by this investigation. To me that’s different. To me your client has more right, more access, more entitlement to this information. He was the one who was personally impacted by it. So I don’t see it as the same.”
We disagree, everyone has the same rights to public records, be it us or Cuomo. The AG has no legal basis to hide the memos. The court must order them released.