"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 24, 2016

New York State Senate violates Freedom of Information Law that it enacted

I was taught Freedom of Information Law in Albany Law School by adjunct professor Robert Freeman, the director of New York State Committee for Open Government.

Professor Freeman was pounding into our heads, among other things, one of two absolute rules of how Freedom of Information Law in New York operates: the FOIL request may be made by any PERSON, anywhere in the world, and the government entity to whom the FOIL request is made, does not have a right to impose additional information requirement beyond indication that "a person" is asking for information and beyond the contact information that person provides.

(The second rule, which is not relevant for this blog, was that the government may never ask for the reason why the records are requested - the rule that government entities in New York regularly violate when FOIL requests are made). 

Also, government entities must provide various means of making FOIL requests.

With these rules in mind, I went to the website of New York State Senate today to verify NYS Senate's contact information for a FOIL request.

The easiest way to make a FOIL request is by e-mail.  An e-mail allows the inquirer to keep an electronic proof that the request was made, what kind of request was made, when it was made and that the government entity received the request.

Mail does not give such assurances, even certified or overnight mail, because the government can always claim that it received an empty envelope.

The "fill-in-your-info" option on the website of the government does not provide to the inquirer any proof that the FOIL request was made.

NYS Senate has the worst possible option - the "fill-in-your-info" option.

Here is NYS Senate's FOIL form as obtained from its website today:

Here is where the violations start.

While not giving their e-mail address for contact for you, while not providing to you an opportunity to file your FOIL request by e-mail, NYS Senate absolutely requires you to provide your e-mail address, even if you want to provide a different type of contact information.  

What if the inquirer wants to give some other form of contact information - a telephone number, a home address, a mailing address?  Does not matter, if the inquirer does not provide an e-mail address, s/he will not be able to submit the FOIL request.

This is a violation of Freedom of Information Law, an excessive information sought from the FOIL inquirer as a condition of satisfying the FOIL request.

 This is the next TWO FOIL violations.

The government entity has absolutely no right to require from people their home addresses as a condition of satisfying FOIL requests.

Moreover, a form for "country" is not in there, so NYS Senate only satisfies FOIL requests coming from within the United States, another FOIL violation.

See, your business address is "optional", but your home address is required?  There is no such requirement in  new York Public Officers Law.

Disclosure of the inquirer's phone number and business address is optional, but e-mail and home address are required?  There is no permission in Public Officers Law to condition disclosure under FOIL on whether the inquirer gave away to the government his or her home and e-mail address, but not just the "optional" telephone number.

Here, several FOIL violations.

First, NYS Senate misleads inquirers by stating that it will e-mail records "as electronic files" only if such records are available in the form of electronic files.

That's not the law.

Under the law and existing advisory opinions of the Committee for Open Government, the governmental entity that is subject to FOIL, must render records into electronic format if that does not present too much problem for that governmental entity.

For example, if the records requested exist on a computer, it is as easy to print on paper, as it is into a PDF file, to then send it electronically.

Or, if records exist on paper, and if it is as easy to scan as to copy (large governmental entities such as NY Senate must have high-speed printers/scanners), the governmental entity may not impose the printing and payment requirement upon something that could be easily scanned and sent by e-mail on a CD.

The cost of the CD is the only cost that can be charged under the circumstances, and even that is questionable if the items can simply be scanned or printed into a PDF file and then sent by e-mail.

Here is yet another FOIL violation.

The government may not put such "innovations" into the FOIL request form.  

The government has an obligation to answer all FOIL requests within the period of time required by statute, and to clearly state the reasons for denial of FOIL requests, if such requests are denied.

The government entity has no right to offer an "option" to the inquirer, who may have no legal training, to not receive the response from the government entity that is required by law, as it may mislead the inquirer into believing that the government entity is allowed to not answer the FOIL request anyway.

Even though this is a routine request to confirm that you are a human and not a robot, you already confirmed it by now by putting in your personal information, so this requirement is completely redundant.

Only after you have satisfied all of the above, NYS Senate allows you to push the "submit" button:

Submitting such a FOIL request provides to you absolutely no confirmation that you did submit a FOIL request.

For legislators to violate the law they themselves enacted - not amend, legislators have a right to do that, but violate without amending it?

And, the beauty of it is that 7 YEARS AGO, an advisory opinion of the New York Committee for the Open Government of August 12, 2009, stated the following, in regards to NYS Senate's stubborn insistence of charging people $.25 for paper records instead of sending them by e-mail:

"...while I am unfamiliar with the means by which the record of your interested is stored, I believe that it can be assumed in most instances that records are now commonly prepared or generated on computers, as in the case of this response, which is being drafted on a pc. Once a record is prepared and stored electronically, it can be transferred to an electronic storage medium, i.e., a disk, or transmitted electronically, i.e., via email."

7 years down the road, NYS Senate continues with the same FOIL violation it was already caught in back in August of 2009.

It's Albany.

It's New York.

It's the order of business.

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