"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, December 27, 2016

Public records should be public - and free. The newly proposed policy of the U.S. Justice Department for access to records and opposition to it.

I wrote on this blog previously of the artificial barriers, and severe punishments, imposed by various governments across the United States upon people trying to get access to public records, from threats, revocation of the requestor's right to earn a living (that's my case) to unlawful incarceration and even murder.

While the government pays lip service to the fact that when a member of the public (and part of the popular sovereign in the United States - "We the People") seeks records of its public servants, the government, to verify how they do their jobs, that's supposed to help the country remain democratic, and not autocratic.

And, when a member of the public, a taxpayer, whose money was already used to create those public records, is seeking access to those public records, such access - my opinion - should be given for free, since those records were already created using that public records' money.

This year, President Obama has signed an amendment to the Freedom of Information Act creating a presumption of disclosure to public records.

Now, the U.S. Department of Justice offered a policy, and - allegedly - sought public comments on it, that when a certain type of information is released to one member of the public, it must be published for all the public to see - a "release to one - release to all" policy.

Of course, the U.S. Department of Justice only gave two weeks for public comment,

see start date of December 6, 2016

and end date of December 23, 2016

and sought public comment on such an important issue right before Christmas, when people are concerned with pre-holiday preparations and not with public comments on access to public records - which is a very questionable approach.

I think that the policy is reasonable and should have been introduced long time ago.  There is no reason why documents released under public access requests under FOIA (and any other access to public records statute) should be made available only to the requesting party, and not to all members of the public - and I do not see why such information should be provided for a fee. 

If our government, claiming that it is acting on behalf of us, as taxpayers and members of the U.S. popular sovereign, and claiming that it is acting within its authority and in our (public) interest, created those documents, there is no reason why the government should charge its boss - the popular sovereign - for seeing those documents, if only and simply to check on its performance. 

If such requests are deemed to be under the law (as they are) in the public interest, the government should not be able to charge fees for release of such documents, and deter the public from seeking public records.

Yet, many comments that were posted during this very short window of comment before Christmas, are opposing the policy.

In this comment, let's call it Comment # 1, for example, the unnamed author (I wonder why comments were allowed to be unnamed - making me, as a member of the public, reasonably question whether the comment was from a member of the public, or from the agency's insider) raises 2 questions:
  1. that the policy will discourage requests by "journalists" and "companies" to file FOIA requests - and will reduce the amount of fees agencies will receive; and
  2. that the policy will create another "unfunded mandate", that the requirement to post all documents on the Internet will be a "tremendous burden" - which, of course, it won't be if effective posting technologies are implemented.
Of course, Comment # 1 is inherently contradictory because it claims that posting some information once and for all will eliminate the need for "journalists" and "companies" to seek that same information once again (and, thus, will reduce the burden on the agency) - but, at the very same time, claims that posting the information "once and for all" creates more burden than serving requests for the same information over and over again.

That inherent contradiction in Comment # 1 is addressed in Comment # 2.

Comment # 3 nd Comment # 4 address the perceived problem that journalists will be discouraged from seeking public records from the government if the government does not allow journalists to benefit from the sensation produced by some of public records.  The comment suggests allowing, on request of journalists, a delay in release of public records to the public to allow journalists in order to benefit from a sensation does not appear to me proper - or even legal.

Public records belong to the public, and nobody - nobody - should be allowed, for any purpose, and especially for purposes of profit, to delay the public from being informed about performance of its own government.

The "remuneration for effort" that the  alleged journalist mentions in Comment # 4 above, can be worked in a different way - members of the public may be remunerated for obtaining a public record by being paid a certain fee for obtaining such record - this will quickly encourage agencies to put all of their public records online, to avoid paying those fees, and the problem with both remuneration and public access will be solved, but public records will not be allowed to be treated as property of the requestor as "remuneration for efforts".

An interesting, and valid, in my opinion, issue was raised in Comment # 5 - that the government's artificial designation of a public record as being "in public interest" (as opposed to other public records that are supposedly not interesting to the public), simply by the frequency of FOIA requests - is flawed, and may lead to less transparency and less access to records.

For such a huge country, for such an important issue of public concern, this handful of comments is obviously not enough to have a meaningful public discussion of the issue.

Moreover, with the currently available technologies, there is no reason why the drafters of the policy would not be made available to the public in a live videotaped streamed question-and-answer format - on Google Hookups, for example, through Facebook Live, Skype, or through any other publicly available real-time videoconferencing or texting (chat) Internet application.

The fact that so few comments were posted is because there was no proper notice given to the public about the draft, no publicity was attracted to the issue of public comments.

The way the government approached the "public comment" requirement is not an effective  technologically up-to-date 2016 approach.

It is a shame that the government swept public discussion of this important policy under the rug by improperly restricting the time for public comment to two weeks immediately before Christmas - and by allowing to make comments anonymous, raising the issue whether it was the agency's own insider's posting those various public comments, and not the actual members of the public.

The discussion could have been a lot more fruitful had it been longer and had the public been allowed to post under their own names.

What I do know from many years of experience with seeking public records from both state and federal agencies, the uniform "policy" existing now is NOT to release records - to try and stall release, pretend misunderstanding of clearly made requests, pretend privacy in public records where no privacy is allowed by law, trying to exhaust the requestor with petty denials and forcing the requestor to either consider costly litigation or give up.

So, at least announcement of a policy that, if a certain public record is asked for three times, it must be posted for all - is good, since, at least practically, it is not difficult to have three people agree to file FOIA requests for the same public document - in order o satisfy the policy.

Public records should be made available to the public - it is an axiom.

And, access to public records should not be either costly, or cumbersome, or made by the government into a game of jumping through fire hoops, with risks to one's livelihood, liberty or life, or into a game where the winner is not the public, but a media source having the most money to pay the fees or to hire an expensive lawyer to sue the agency for access to records - and providing information to the public for money.

There should be laws in place severely punishing for any attempts of the government to stall disclosure of public records, and especially to punish those requesting public records, in any form of punishment or adverse action, for seeking or making such records public for the public - pun intended.

There should be laws in place providing benefits - monetary benefits - to members of the public who seek public records and post them, or make governmental agencies post them, for access of all the public.

I also suggest that we as members of the public put pressure on our governmental representatives to put enforcement of such laws not into the hands of the government, but into the hands of special grand juries where any member of the public can directly file his or her grievances with the grand jury, and where the grand jury is not controlled or directed by any member of the legal profession or by any government official.

I suggest that such special grand juries are vested with powers to hear grievances directly from the public, without any "filters" in the shape and form of government officials like prosecutors and courts who are interested not to allow grievances about themselves to be heard and properly prosecuted.

Then, possibly, we will have FOIL/FOIA laws - and other laws ensuring government accountability - properly enforced.

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