There’s a standard set of gripes that journalists hear from people who feel maligned by a story: “The information was taken out of context! We were misrepresented! We weren’t given the chance to tell our side of the story!”

But in the mini-scandal of how New York Governor Eliot Spitzer’s office used the press to spread damaging information about a political nemesis, State Senate President Joseph Bruno, it is the journalists at the Albany Times Union who are crying foul.

New York Attorney General Andrew Cuomo released a scathing report last Monday on his office’s investigation into the use, by Spitzer’s top advisers, of state police to keep tabs on Bruno’s taxpayer-funded travel. In that report, the AG strongly implied that the Times Union abused the state Freedom of Information Law to protect its sources in the governor’s office.

But copies of the original FOIL requests, provided to CJR by Rex Smith, the Times Union’s editor in chief, suggest that the AG selectively quoted from the requests in a way that distorted the press’s role in this scandal.

The controversy started on July 1, when the paper ran a story by statehouse reporter Jim Odato on how Bruno had flown in state police helicopters, at taxpayer expense, from Albany to political fundraisers in New York City.

The revelation was based on flight records that, according to the piece, were released under the Freedom Of Information Law. Just four days earlier, on June 27, Odato had filed a FOIL request with Spitzer’s office asking for flight records on seven top state officials (including Spitzer and Bruno) after receiving a tip from what Smith says was “a source well known to Jim.”

Over the next week, Bruno loudly accused Spitzer of tracking him with state troopers, and then leaking the findings to the press. Spitzer and his office defended their actions, saying that the information released to the Times Union was simply matter of routine compliance with the FOIL request.

According to the Attorney General’s report, in mid-May, Spitzer’s state police liaison, William Howard, asked the agency’s acting superintendent to keep him informed of Bruno’s travels, claiming that the governor’s office had received a FOIL request for the information. In fact, all parties now admit, no such FOIL request existed at the time. State troopers who had driven Bruno around on days when he attended high-profile political events were interviewed by other officers, and this information was used reconstruct Bruno’s use of state aircraft.

These itineraries arrived at the Times Union on June 28 and 29, as part of the response to Odato’s FOIL request—which he filed after getting the tip on Bruno. Anyone who has worked with freedom of information laws, at the state or federal level, knows that requests don’t typically get such a prompt response. “They had it all ready to go. It was clear to me that the governor’s office wanted us to have this information,” says Robert Port, who runs the Times Union’s investigative unit. “It flew up a red flag. It made me more concerned that it was authentic, and that it was accurate.”

The article, headlined “State Flies Bruno to Fundraisers,” was published the Sunday before a week when Port and Odato were going to be out of the office on vacation. When the story proved to have legs, Smith says he e-mailed Port on the morning of July 4, asking Port to keep digging on the air travel story, “even if what we find doesn’t match the agenda of our sources.”

When Port and Odato came back in the office on Monday, July 9, they set to work on a follow-up. The next day, Odato sent another FOIL request to the governor’s office.

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.

But it’s too early to say whether the alphabet soup of investigatory entities lining up to look in to the matter will do the same—after all, in the wake of the Valerie Plame debacle and other high-profile assaults on reporter-source relations, the notion that a reporter can safely guarantee anonymity to a source is pretty sketchy. “This is a Hearst newspaper. We’ve been through the San Francisco Chronicle thing,” says Smith, alluding to the two Chronicle sports reporters who faced federal jail time for their refusal to testify about their sources in the BALCO steroid case. “I don’t like at all where this is going,” Smith says. “It’s still a little too close for comfort.”




——-Original Message——-


From: Odato, Jim
Sent: Wednesday, June 27, 2007 3:16 PM
To: ‘Darren.Dopp@chamber.state.ny.us’
Subject: foil request

Re: Freedom of Information Law Request

June 27, 2007


Darren Dopp
Director of Communications
Gov. Eliot Spitzer’s Office
Albany, NY

Dear Mr. Dopp:


Under provisions of the New York Freedom of Information Law, please provide me records identifying the use of the state aircraft by Gov. Eliot Spitzer, Lt. Gov. David Paterson, Comptroller Thomas DiNapoli, Senate Majority Leader Joseph Bruno, Assembly Speaker Sheldon Silver, Assembly Minority Leader James Tedisco and Senate Minority Leader Malcolm Smith.
I seek the material for calendar year 2007.


Please include any materials that explain the purpose of the trips, itineraries, manifests and the schedules for Gov. Spitzer and Lt. Gov. Paterson for the days in which they used the state aircraft for any purpose.


Please provide any and all materials relating to this request as soon as possible.
Thank you.


Sincerely,

James M. Odato
Reporter
Albany Times Union
454 5083 office



——-Original Message——-


From: Odato, Jim
Sent: Tuesday, July 10, 2007 1:12 PM
To: ‘Darren.Dopp@chamber.state.ny.us’
Subject: RE: FOIL



Re: Freedom of Information Law Request
July 10, 2007


As a follow-up to my June 27, 2007 request for records under the New York Freedom of Information Law, I want to make it clear that I also request records through the end of June 2007.


The records I request identify the use of the state aircraft by Gov. Eliot Spitzer, Lt. Gov. David Paterson, Comptroller Thomas DiNapoli, Senate Majority Leader Joseph Bruno, Assembly Speaker Sheldon Silver, Assembly Minority Leader James Tedisco and Senate Minority Leader Malcolm Smith.


Please include any materials that explain the purpose of the trips, itineraries, manifests and the schedules for Gov. Spitzer and Lt. Gov. Paterson - an anyone else on the list for which you have such materials - for the days in which they used the state aircraft for any purpose.


Please provide any and all materials relating to this request as soon as possible.


Thank you.


Sincerely,


James M. Odato
Reporter
Albany Times Union
454 5083 office

If you'd like to help CJR and win a chance at one of 10 free print subscriptions, take a brief survey for us here.

Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.