Beginning in approximately May 2007, per sons in the Governor’s Office planned to provide information to the media demonstrating that Sen. Bruno had been using state aircraft for political purposes, contrary to his certification that he was on official state business. In furtherance of that plan, in mid-May, Preston Felton, acting superintendent of the State Police and William F. Howard, assistant deputy secretary for homeland security, had a series of conversations about Bruno’s travel and his use of state resources.
At some point, Howard, who was the governor’s liaison to the State Police, apparently told Felton that the Governor’s Office had received a Freedom of Information Law (FOIL) request for records concerning Bruno’s travel. At the request of Howard, [Felton] began informing Howard about Bruno’s planned and actual movements in New York City for trips certified to be for “legislative business.” This included notifying Howard of Bruno’s upcoming schedule “on the ground” in New York City and each change to the upcoming schedule as it was made.
On May 31, [Felton] collected flight records from the State Police concerning both Bruno and the governor, and forwarded these records to Howard. During the first week of June, the superintendent directed others in the State Police to debrief the investigators who had been assigned to drive Bruno in New York City regarding the locations to which they had driven him.
[Felton] further directed that documents be created to reflect this information in a form that purported to be official State Police records. [He] forwarded these purported records to Howard.
The various documents and information collected were all highly pertinent to whether Bruno’s use of state aircraft was in fact in connection with legislative business, as Bruno had certified.
On June 28 and 29, the Governor’s Office produced to the Albany Times Union a range of transportation records concerning the governor, lieutenant governor and Bruno for the period of January through May. These included documents detailing where Bruno was scheduled to be driven or was actually driven for only three of the 10 trips, coinciding with the dates of the fundraisers.
On July 1, the Times Union [reported] that “three times this year, Senate Majority Leader Joseph L. Bruno used taxpayer-funded state aircraft to fly to political fundraisers in Manhattan while certifying he was on official state business, according to documents obtained by the Times Union.” The paper reported that it had obtained the documents under FOIL. FOIL requires government agencies to provide access to their records on request, with certain exceptions.
The Governor’s Office represented that it had done nothing more than produce documents under a FOIL request from the Times Union. This account is not consistent with the facts.
We conclude that the Governor’s Office was acting pursuant to a plan, which preceded any FOIL request, to show that Bruno had misused state aircraft. We further conclude that Howard told [Felton] there was a FOIL request before any such request existed, in order to obtain and produce documents and information about Bruno.
Even assuming that the superintendent and Howard were acting in response to a FOIL request, their conduct deviated substantially from the requirements of FOIL and from standard State Police operating procedures in the following ways:
* [Felton] directed the creation of records to show where State Police investigators had driven Bruno, even for a trip for which Bruno had already provided a schedule. These records were not ordinarily created or maintained by the State Police. The superintendent provided these records to Howard with the understanding that they would be produced under a FOIL request.
* The superintendent began reporting to Howard information about Bruno’s upcoming schedule and changes to the schedule on an ongoing basis as the superintendent received that information.
* The creation of records outside the ordinary course of business and the events in question carries the risk of creating inaccurate or misleading records, which occurred here.
* Howard requested and the superintendent produced selective information regarding Bruno.
* The superintendent and Howard produced sensitive scheduling information of the kind not typically produced and did so without conducting a security review.
* The superintendent personally handled and oversaw the document creation and production. This was contrary to more than 20 years of State Police practice and procedure and was something that the superintendent himself had never done before.