The 2nd Circuit refuses to release records of the State-Federal Judicial Council under Freedom of Information Act claiming exemption of the "judiciary" under FOIA, while the D.C. Circuit grants access to records of complaints against immigration judges to the American Immigration Lawyers Association

I wrote on this blog about my Freedom of Information Act (FOIA) request regarding records reflecting membership, structure, agenda, meeting schedule and other available records of the so-called New York State-Federal Judicial Council, a shadow secret organization where state and federal judges, and some select attorneys, meet behind closed doors, and do that under circumstances where state judges may be defendants appearing in front of federal judges - members of the Council, see my blog here.

Initially, both judges D'Agostino (the U.S. District Court for the Northern District of New York) and Katzman (the U.S. Court of Appeals for the 2nd Circuit) simply ignored my FOIA request.

I repeated it after President Obama signed into law at the end of June, 2016 the FOIA's presumption of access to records.

Today I received a response from a "Circuit Executive" of the U.S. Court of Appeals for the 2nd Circuit denying my FOIA request - in the court's  alleged "discretion", claiming that information I am seeking is exempt from FOIA, because "the judiciary" is allegedly not subject to FOIA.

Yet, I was not asking for information regarding judicial acts of "the judiciary", but instead regarding administrative activities of a body where members are appointed by the Chief Judge of the 2nd Circuit. 

Moreover, the "Circuit Executive"'s webpage indicates that the office of the Circuit Executive handles administrative activities of the 2nd Circuit.

Such a statement is an admission that not all activities of the 2nd Circuit are judicial activities.

Administrative activities are definitely subject to FOIL, same as administrative activities of, let's say, New York State Court Administration are subject to the state Freedom of Information Law.  In fact, I obtained the only document I could regarding the New York State-Federal Judicial Council through a FOIL request to the New York State Court Administration.

Simply because members of that body are judges, does not mean that records of that body are concealed from public review, and that is especially so that FOIA exempts information only about federal judiciary, while the body is a mixed body, and thus information about state judges who are members of that council is definitely discoverable. 

State judges have no official place in the federal judiciary - they are neither appointed as magistrates, nor nominated by the President, nor confirmed by the Senate.  Thus, state judges' - and attorneys' - participation in such "councils" certainly does not fall within exemptions from FOIA.

Administrative activities of any governmental body, including the court, are subject to FOIA, and FOIA has, since June of 2016, a presumption of disclosure.

As an illustration as to how "inapplicable" FOIA is to "the judiciary", I provide the July 29, 2016 decision of the U.S. Court of Appeals for the D.C. Circuit regarding information sought by the American Immigration Lawyers Association regarding names of immigration judges against whom complaints were filed.

These two decisions - one from the 2nd Circuit, and the other from the D.C. Circuit, on the same subject of access to records regarding non-judicial activities of judges, are only one day apart.

Here is also an article about the lawsuit to get access to records of complaints against immigration judges.  (As a side note, in New York, for example, complaints against judges are deep secret and are not recoverable under FOIL on "privacy" grounds.  Apparently, not so under the federal Freedom of Information Act.  As a matter of public concern and ability to review performance of their high-powered public officials, such information must be available to the public - and the D.C. Circuit's decision of July 29, 2016 is a huge step in that direction.

As far as denial of my FOIA request is concerned, judges are judges, whether they work in the actual court, or for and administrative agency, such as the Board of Immigration, and information sought by the American Immigration Lawyers Association is not related to the judicial decisions, same as my information was not seeking court records.

The D.C. Circuit's precedent is fully applicable to the denial of FOIA request on July 28, 2016 (one day prior) by the 2nd Circuit.

Please, note that the 2nd Circuit did not say it does not have the records I was seeking - only that it will not give the records to me, in the court's alleged "discretion".

Apparently, the information I am seeking is too sensitive for judges of the 2nd Circuit to be disclosed - all the more reason for me to try to get it.

I will certainly appeal the denial of my FOIA request, and if my appeal is denied, am contemplating a court action to compel production of records I seek.