"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.

Tuesday, April 5, 2016

New York State Department of State has unlawful policies restricting Freedom of Information requests

I regularly post blog articles about my FOIL requests with New York State state and local agencies and their responses, with comments.

This blog post is about FOILing the New York State Department of State.

FOILing is like pulling teeth in New York.

While making FOIL requests is presumed by law to be in the public interest, courts, for example, viciously punish FOILing (if judges are the subjects of FOIL) and viciously punish using documents obtained through FOIL requests - because such documents are obtained outside of the court-controlled discovery process.

I have been sanctioned tens of thousands of dollars for FOILing and lost my law license because a judge was too pissed off I FOILed the New York State Court Administration for his financial semi-annual reports - the reports were never provided to me.

Yet, once again, making a FOIL request is presumed to be in public interest, and I will continue doing it, and publishing the results, as my service to the public.

Today's blog is about New York State Department of State stalling my FOIL request and inventing illegal restrictions on satisfying such FOIL requests.

Here is the scan of the front webpage of the New York State Department of State.  It prominently shows that people can file FOIL requests with the Department - on the left.

If you click on the FOIL button on the left, you will see this screen:

If you click on "email address:  FOIL Request", you will see this:

As you see, you are not provided an e-mail address, as the previous screen promised.

I will provide it for you, though.

This is the e-mail address of NYS Department of States "Assistant Records Access officer", where FOIL requests can be made to the Department - the e-mail is obtained from the e-mail response of the Department to my FOIL request:

Here is what the response revealed.

I asked, by e-mail, for all public records on file with the Department regarding a certain corporation.

I asked on March 29, 2016.

The response must be made within 5 business days, as required by FOIL law.

Today I received a response indicating that:

1) there are records on file - 6 (six) documents;
2) copies of those records WILL NOT be released to me, unless:

     a) I must either mail or fax my FOIL request - my e-mail FOIL request was not good enough for the Department, even though the Department answered within 5 business days;  that was the first unlawful policy, the Department cannot mandate FOIL requests not to be filed by FOIL, especially if they have an "Email FOIL" page (as shown above);

      b) I must pay a FLAT FEE (not $0.25 per page - see above) for each document they have on file;  so, if the document is a 1-page document the New York State Department of State will charge you 20 times (!) more for it than Freedom of Information Law allows;

      c) the Department does not provide copies of documents in digital format by e-mail, so I will have to agree to receiving those documents by mail - and I am thus forced to give the Department my mailing address.

 Of course, the Department, while unlawfully denying my FOIL request, offered "optional services" for "expedited delivery" of documents - from $25 for a 24-hour satisfaction of my FOIL request to $75 for a "same-day" satisfaction and $150 for a 2-hour satisfaction.

While that is very convenient for some litigation, I admit, I didn't need it.

All I needed was for the New York State Department of State to follow the existing Freedom of Information law and provide me copies of the six documents the Department acknowledged it had on file, TODAY, by e-mail, for no fee (because a fee may not be charged for scanned copies unless major labor investment is involved in scanning, which cannot be said about scanning 6 documents on a high-speed scanner).

Of course, NONE of the above little "policies" is legal.

Freedom of Information Law has a presumption of disclosure.

If the Department of State imposes any restrictions, it must provide a statutory provision it relies upon in denying a FOIL request.

"Assistant Records Access Officer" Helen Wilbard provided none of the statutory grounds for the restrictive policies and for the denial of my FOIL request - but offered to be of "further assistance".

Let's remember that this particular individual has a job, with benefits, and receives a salary paid by New York taxpayers, 

so that she would SATISFY legitimate FOIL requests, not to stall them.

I will, of course, file an administrative appeal of the denial of the FOIL request.

By the way, each agency which people are FOILing must have a chief officer to whom denials of FOIL requests can be administratively appealed, and that name and address must be mentioned in the letters denying FOIL requests.

Naturally, that name or address is neither on NYS DOS FOIL webpage, nor in Helen Wilbard's e-mail to me.

I will verify the name and address with Ms. Wilbard and publish it.

As of now, what we have is at least the e-mail address where anyone can file a FOIL request by e-mail and receive a confirmation that the FOIL request was made - without relying on the mercy of NYS DOS to acknowledge that a FOIL request was received through their website, because they send no such electronic confirmation.

Policies of the NYS DOS, as announced to me by Helen Wilbard, serve two purposes:

1) to sieve out people who make FOIL requests seeking free copies of records (digital copies to be sent by e-mail), or cheap copies of records (paper copies to be sent by mail at $0.25 per page), and instead

2) to concentrate on paid "expedited services", which are needed usually in litigation, thus gathering fees.

While there is nothing wrong for the New York State Department of State to engage in legitimate fee-generating activities, and I do not see anything illegal in their optional expedited fee schedule, NYS DOS should first comply with the deadlines and fee provisions of FOIL before thrusting their expensive expedited fee schedules onto FOIL inquirers.

Once again, here is the FOIL e-mail address to be used to FOIL the New York State Department of State, provided to you in this blog as my public service to you.

Enjoy and use.

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