The attorney general’s report makes much—too much, as it turns out—of this second FOIL request. The first request explicitly sought “materials that explain the purpose of the trips, itineraries, manifests and the schedules” for Governor Spitzer and the Lieutenant Governor. But for Bruno and the other four officials the request generically asked for “records.” But the filing nonetheless netted the Times Union “itineraries, manifests and schedules” related to Bruno—in other words, they got the goods on Bruno that someone wanted them to get, even though they didn’t specifically request them.
The second request asked for identical materials on all seven officials. As Cuomo’s report puts it, “The timing of this request is odd, however, given that it was sent nine days after the July 1 article appeared, and shortly after the OAG and other agencies had confirmed the various investigations into this matter.” The implication is that the Times Union had filed the second request to provide cover for its sources in the governor’s office, who were defending themselves by saying they had simply been complying with Odato’s FOIL request.
The chair of the state’s Republican party, following the AG report’s logic, attacked the paper, asking why the second FOIL request was filed if not to provide cover “in concert with the Spitzer administration.”
Odato, however, says there’s a far more benign explanation for the second request: he wanted to get updated documents through the end of June, since the first set had only covered flights through May. The second FOIL request backs this up—it clearly identifies itself as “a follow-up” to the June 27 request, clearly asks for the June records, and is clearly dated, both in the text and in the e-mail time stamp as being sent on July 10.
As Rex Smith wryly puts it, if Odato meant to cover for the Spitzer administration, “I think he would be able to do a better job of it.”
None of those exculpatory details are included in the Attorney General’s report. And in light of Smith’s July 4 instructions to broaden the investigation, it’s not surprising that Odato would subsequently broaden his request to encompass all the officials.
Port and Smith are outraged at how the report casts doubt on the paper’s conduct. “It’s really troubling to me because it’s completely wrong,” says Port. According to Smith, Cuomo’s investigators did not ask to speak with anyone at the paper before publishing the report. He’s not sure he would have wanted his reporters talking to the investigators, but he thinks that if an overture was made, some sort of back-channel communication on his part could have kept this distortion of what actually happened from the report.
The attorney general’s office did not return a CJR phone call seeking comment.
While the sections of the report relating to the Times Union haven’t gained Cuomo any fans at the paper, Smith proudly points out that the latter half of the document largely confirmed the paper’s original reporting on Bruno’s travel, which he held up as a “public service” in a Sunday column defending the paper.
But Smith does have at least two regrets—he wishes that the original story had disclosed not only that the information was provided through a FOIL request, but also that the request had been filled by the governor’s office. He also regrets that he didn’t pull Odato from the story after Cuomo’s findings were released. Odato wrote three stories on the report this past week, none of which mentioned or disclosed his role in the brouhaha, even though the document mentioned his name seven times. “I would have made his life easier if I pulled him off on day one,” Smith says. “Instead I pulled him off on day three.”
The paper is relieved that the investigation did not attempt to discern the identity of the original tipster. “He seems to have avoided that area, because he knows it’s a sensitive issue,” says Port, adding that he’d rather “rot in jail” than give up a confidential source.