Trove of Top Attorney's Corruptive Practices on the Horizon

Ruling Backs Access to Spitzer's Private E-Mails on Public Matters
The New York Law Journal by John Caher  -  May 18, 2012

ALBANY, NY - The private e-mails of Eliot Spitzer—who as attorney general tapped into corporate e-mails to build some of his biggest cases against Wall Street tycoons—are subject to the state Freedom of Information Law to the extent that they deal with public business, an upstate judge has held.  Supreme Court Justice Christopher Cahill (See Profile) ordered the Attorney General's Office to "gain access to [Spitzer's] private e-mail account" in connection with its seven-year-old civil fraud case against Howard Smith, the former CFO of American International Group (AIG).  Smith and former AIG CEO Maurice "Hank" Greenberg were sued by Spitzer in 2005 and accused of fraud under the Martin Act. Spitzer's two successors as attorney general, Andrew Cuomo and Eric Schneiderman, continued the case, which is now pending before Manhattan Supreme Court Justice Charles Ramos.  In preparation for Smith's defense, his attorneys at Kaye Scholer submitted a Freedom of Information Law (FOIL) demand to the attorney general seeking copies of pertinent e-mails sent from or to a private account that had been provided to Spitzer by the Democratic National Committee. Spitzer frequently used the private account to conduct official business, according to court records.  Schneiderman's office claimed that it could not comply with the FOIL because the e-mails in question are not in its possession. But Cahill rejected that argument.  Cahill said the attorney general cited "no case law to support its contention that the use of personal e-mail accounts by government officials for agency-related business will serve to shield such accounts from disclosure" under the Freedom of Information Law.  The attorney general "has both the responsibility and the obligation to gain access to the private e-mail account of former Attorney General Spitzer to determine whether the documents contained therein should be disclosed," Cahill said in Matter of the Application of Howard I. Smith v. New York State Office of the Attorney General, 3670-08.  Cahill cited decisions dating back to 1979—see Matter of Fink v. Lefkowitz, 47 NY2d 567 (1979), and Matter of Capital Newspapers Division of the Hearst Corp. v. Whalen, 69 NY2d 246 (1987)—for the proposition that a "determination as to whether a document is a public record subject to FOIL must focus on the content and purpose of the document, not its location or the means by which it was transmitted."  Otherwise, he said, the purpose of FOIL could easily be undermined.

"Here, it is clear that disclosure has been thwarted upon the pretense that the requested information was not in the physical possession of" the Attorney General's Office, Cahill said in an order dated April 30. "In this Court's view, the inquiry must return to the question as to whether the documents sought by petitioner pertain to official agency business generated or acquired by the former Attorney General in his official capacity, no matter where such documents were generated or located."  Robert Freeman, executive director of the state Committee on Open Government, said New York's Freedom of Information Law broadly defines "record" to include "any information, in any physical form whatsoever, kept, held, filed, produced or reproduced by, with or for a government agency."  Freeman said Cahill's decision confirms opinions his office has issued "advising that the location of a record is irrelevant, and that a communication received or transmitted in relation to one's governmental function falls within the coverage of FOIL."  Kaye Scholer attorneys Vincent Sama and Daphne Morduchowitz argued for Smith.  Assistant Attorney General Adrienne Kerwin represented Schneiderman's office.  The Attorney General's Office declined to comment and there was no response from Kaye Scholer. Spitzer was not available for comment.  Spitzer, the so-called "Sheriff of Wall Street," in 2005 alleged that AIG, then the world's largest insurance company, Greenberg and Smith hid the firm's losses through reinsurance transactions, deceiving both investors and regulators. In that case, as well as several others, Spitzer invoked the nearly century-old Martin Act, which enables the state to prevail on a securities fraud claim without establishing an intent to defraud.  On May 8, the Appellate Division, First Department, refused to dismiss the Martin Act charges, seemingly clearing the way to trial. However, the defendants are seeking leave to challenge the 4-1 decision to the Court of Appeals (NYLJ, May 9).  John Caher can be contacted at jcaher@alm.com.