"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, March 2, 2017

Delaware County (NY) Sheriff's Department violates Freedom of Information Law - as a matter of policy

Delaware County (NY) is well-known for stalling or stonewalling FOIL requests.

My very first FOIL was fulfilled by the County only after I complained to the NYS Committee on Open Government many years ago, and the Committee interfered.

Yet, Delaware County did not learn its lessons and continues to violate FOIL, now under its new Acting County Attorney Amy Merklen.

Here is the webpage of the County's Sheriff's Department stating conditions of access to records under FOIL.

The conditions violate FOIL in two areas:

  1. Fees, and
  2. a policy of blocking release of public records during the pendency of a criminal proceeding.
FOIL fees and ways to get public records under FOIL other than through paper copies

Here is what Delaware County Sheriff's Department charges in fees for records on FOIL requests:

Under FOIL, Public Officers Law 87, an agency can only assess a 25 cent per page fee if they are giving PAPER copies.

There are THREE OTHER ways to get FOILed records, for free.

  1. If people ask for scanned copies, they get the records for free, if the agency has a scanner that help the agency scan records as fast as the agency can produce copies.  Of course, the County at this time is stalling my demand to certify that they do not have an inventory of scanning equipment, but I assure FOIL inquirers with the County that I have seen a fast-speed scanner in the County Department of Social Services with my own eyes, and, unless it has been stolen or sold since then (and I FOILed the County about the movement of printing, scanning and copying equipment, too), it should still be there, so the County cannot pretend it has nothing to scan records for purposes of FOIL requests.
  2. People can come and review ORIGINALS of records on site, during business hours of the agency.  No fee should be charged for that.
  3. People can bring their own copier or scanner to the agency and make their own copies or scans with their own equipment from the originals of public records.  No fee should be charged for that.  Any smart phone or tablet can take pretty good pictures of records, and there is also such a technological wonder as wand scanners with wifi and large expandable memory - available in stores, as far as I know, under $100.
Delaware County Sheriff's Department, does not post these options for people seeking records on FOIL, it only posts options for which the Department can charge money - which is a fraudulent practice.

Moreover, the Department has no authority to charge $10 for photos and $26 for CDs.

CDs cost cents and a page of a photo should be charged the same way as any other page of the record - at 25 cents apiece.

So, these are also fraudulent business practices, but why am I not surprised.

Records "in regards to criminal cases" during pendency of criminal proceedings

 Delaware County Sheriff's Department boldly announces on its FOIL page that it will stall FOIL requests for records "in regards to criminal cases that are currently pending in court" until the court case is finally decided.

That is an illegal policy.

There is a presumption of disclosure in Freedom of Information Law, and an agency can only deny access to records based on a provision that is in that statute.

Of course, the Delaware County Sheriff's Department did not cite to any statutory provision for its policy of denying access to public records "in regards to" a pending criminal case until the criminal case concludes.

The Sheriff CAN deny access to records in connection with a criminal case in response to a FOIL request if:

  1. such disclosure will interfere with a criminal investigation - but a court case is STARTED only when the investigation is FINISHED, so that section does not apply; or if
  2. such disclosure will interfere with judicial administration, with a pending court case - that reason must be stated each time, in response to each specific FOIL request, with a specific explanation as to how request for specific records in a specific FOIL request would interfere with a specific criminal case.  This exemption is not a blanket policy exemption allowing denial of access to records "in regards" to any pending criminal case.

There are, of course, records that cannot be disclosed during the pendency - or even after conclusion - of a criminal case.

Those are:

  1. materials of the grand jury proceedings;
  2. documents subject to attorney-client privilege (here, the attorney is the prosecutor, and the "client" is, presumably, the police);
  3. documents pertaining to trial strategy (correspondence regarding the trial between the District Attorney and the Sheriff);
  4. possibly, but not necessarily, list of witnesses to be called at trial;
  5. records disclosing the identity of witnesses who are confidential informants;
  6. investigative techniques of law enforcement which, if disclosed, will thwart future investigations or jeopardize lives;
  7. medical or mental health records of a detained criminal defendant.

But, that's about all.

In other words, there are SOME records "in regards to" a pending criminal case that are not subject to disclosure under FOIL.

And, the presumption of disclosure still applies to records sought under FOIL, even if they are "related to litigation".

The Committee on Open Government issued an advisory opinion on that same topic, citing to some New York Court of Appeals cases on the subject:

I've put in a scan from that advisory opinion, and repeat it with the quote in a larger font:


First, as stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency:

"Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)].

Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR). 

Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.)

Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns.

While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL.

Access to records under CPLR depends on status and need.

With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].


CPLR 31 is the statute governing, in New York State, discovery in civil proceedings.

Discovery in criminal proceedings is governed by a different statute, but the applicability is the same.

Discovery is a right RESTRICTED to:
  1. status of the person in the court proceeding;
  2. need for disclosure;
  3. legitimacy of disclosure;
  4. relevance to the pending court case.
NONE of these restrictions apply to FOIL.

Instead, under FOIL, there is:

  1. a presumption of disclosure;
  2. for any purpose, legitimate or not;
  3. by any person, party to a pending litigation or not, local resident or not, American citizen or not, located within the U.S. or not;
  4. for any need, and without restriction to its "relevance" (as the Sheriff's Department said - "in regards to") whatever issue or whichever court case, pending or concluded.

Yet, the Delaware County Sheriff's Department, and the Acting County Attorney Amy Merklen representing the Sheriff's Department, appear to be blissfully unaware of the applicable law, and the Department claims that ALL records  "in regards to" a pending criminal case are not subject to disclosure - which is simply not true.

Neither the Sheriff, not the Acting County Attorney have legislative power to re-write the Freedom of Information Law.  And, their invented restrictions on FOIL requests in criminal cases are unlawful.

The Delaware County must, as a matter of law, state as to each and every FOIL request seeking records "in regards to" a pending criminal case:

  • presume disclosure, and,
  • if the Sheriff's Department seeks to deny access to record,
  • state clearly and specifically:
    • the statute under which the exemption applies; and
    • explain why that statutory exemption applies in this particular situation -
not announce, as a matter of policy, that it will simply will not release ANY records "in regards to" a criminal case until it ends.

That is unlawful.

But - count on Delaware County and its law enforcement department to do unlawful things, residents of Delaware County should be long used to that.

Or - should they be?

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