Eliot Spitzer (Daniel Deme/WENN.com)
ALBANY – A six-year battle to unveil former Attorney General Eliot Spitzer’s private emails is heading for a showdown in an Albany courtroom, with Spitzer claiming that neither the public nor his adversaries in a long-running dispute have any right to his personal communications.
Spitzer, who has said for years either that there were no private emails in which he conducted state business, or at least none responsive to a Freedom of Information Law demand by a businessman he accused of civil fraud, argued in an 84-page motion Friday that as a private citizen he is not covered by FOIL.
Spitzer’s submission to Supreme Court Justice Christopher Cahill in Albany resulted from a lengthy effort by Howard Smith, former chief financial officer of American International Group (AIG), to obtain any emails discussing the company’s top officials and a civil fraud case initiated in 2005.
Smith, who along with former AIG Chief Executive Officer Maurice “Hank” Greenberg remains a defendant in a matter limping toward trial (NYLJ, Feb. 18), has for years demanded access to Spitzer’s private emails on the theory that they would betray animus, prosecutorial bias and vengeance.
Spitzer’s two successors as attorney general, now Gov. Andrew Cuomo and incumbent Eric Schneiderman, argued that they had neither the authority nor responsibility to discover and reveal private communications from a former officeholder.
However, Cahill, who was appointed by Spitzer when the latter was governor, ruled in 2012 that public officials cannot keep public business secret by using personal email accounts and directed Schneiderman’s office to retrieve any documents responsive to the FOIL.
The dispute went to the Appellate Division, Third Department, which was asked to consider whether the attorney general had any duty to go after Spitzer’s records.
But the court sent the matter back, noting that nobody had bothered to include Spitzer in the action and opining that as the person with the most at stake, he had a right to weigh in. Smith then filed papers joining Spitzer, resulting in the submission on Friday by his attorney, Andrew Celli Jr. of Emery Celli Brinckerhoff & Abady.
Celli’s motion to dismiss argued that: since Spitzer is not an “agency” he is not subject to FOIL; FOIL encompasses only documents in the possession of a state agency, not those privately held; the claim is time-barred since Spitzer, a necessary party according to the Third Department, wasn’t even part of the action for six years; and the claim is barred by the doctrine of laches.
According to the motion, the Court of Appeals made clear more than a decade ago in Newsday, Inc. v. Empire State Dev., 98 N.Y.2d 359 (2002), that private individuals are not subject to FOIL. Celli characterized the demand for Spitzer’s records a “dramatic and wholly unwarranted expansion of FOIL,” well beyond anything justified by either law or public policy.
“The bright-line rule that FOIL requests must be addressed to government agencies and not to private individuals is supported by important public policy rationales,” Celli said in the brief. “Allowing requesters to compel production of records from private individuals creates a limitless, undefined category of persons who may be subject to FOIL requests, forever, after they leave public office—including former mayors, prosecutors, agency heads, and so on—even though such individuals are categorically outside the statutory definition of an “agency.”
Celli stressed that while Spitzer was in the governor’s office when the FOIL request was submitted, and therefore a public officeholder, he was no longer an employee of the targeted agency: the attorney general’s office. He acknowledged that the Court of Appeals, in Capital Newspapers v. Whalen, 69 NY2d 246 (1987), held that FOIL covered the personal papers of a late mayor, but noted that in that case the requested records were still in the possession of the government.
The motion to dismiss deals only with legal grounds and does not address what Spitzer has repeatedly said publicly: there are no private emails.
In any case, Celli maintains that the statute of limitations ran out years ago.
“Even if FOIL requires agencies to obtain records from former individuals, which it does not, and even if FOIL requires agencies to obtain records of former employees, which it also does not, the Petition against Mr. Spitzer must be dismissed because Petitioner’s claims are barred by the four-month statute of limitations,” Celli wrote.
Also Friday, the attorney general’s office filed its response, arguing, as it has in the past, that the FOIL does not compel disclosure of records that are not in the possession or control of the state at the time the request is made.
“FOIL is a document-disclosure statute, not a document-retention or document-recovery statute,” Assistant Attorney General Adrienne Kerwin argued in her brief, stressing that the office has not conceded that the documents sought by Smith even exist. “It does not address the creation, preservation or retention of documents prior to an agency’s receipt of a FOIL request.”
Smith is represented by Vincent Sama of Kaye Scholer, who was not immediately available for comment.