For those interested in #NewYorkJudiciaryLaw487 - an appeal of the final judgment in the #MokaySaga has been filed

A pro se appeal to the 3rd Department from a final (ex parte) money judgment was filed by my husband Frederick J. Neroni in the Mokay saga (see my blogs here, here and here).

You can read the Appellant's Brief here.

The table of contents and authorities to the Appellant's brief can be found here.

The record on appeal consists only of the trial transcript here, pages in the trial coincide with pages in the Record on Appeal (R-1 is trial transcript, page 1 etc.).

and Judge Kevin Dowd's order after the ex parte trial is here.

You can read about Judge Dowd's shenannigans about blocking Mr. Neroni's access to the trial exhibits after the trial, before and after Judge Dowd made his ex parte judgment, and releasing the trial exhibits (allegedly, hundreds of them, judging by the transcript) to Richard Harlem during the pendency of the appeal, making it impossible for Mr. Neroni to provide an effective representation for himself on appeal, and to see and analyze, for appellate purposes, any flaws in reliance by the trial court on those alleged trial exhibits.

The blogs, recordings of my conversations with the Delaware County Supreme Court Clerk's office, and transcripts of those conversations can be found here, here, here, here and here.

At this time, the Mokay trial exhibits are irreversibly spoliated and gone, thanks to Judge Dowd.

The 3rd Department court is stubbornly refusing to recuse from the case, even though it recused from my disciplinary case, after adding my husband to the caption of that case, in June of 2014, 

My husband's appeal has interesting (I think) arguments pertaining to:

1) #JudiciaryLaw487 and the case law interpreting it, including the just-decided Neroni v Follender that gutted Judiciary Law 487 by affirming absolute judicial immunity granted to a private attorney sued under that statute, see also my blogs about Judiciary Law 487  and other legal issues with the Mokay saga: 

• here - on the precedential value of the alleged "dicta" in Neroni v Follender;
• here - about the de facto gutting of Judiciary Law 487 by two courts, NYS Court of Appeals and Delaware County Supreme Court in Neroni v Follender;
• here - about Mr. Neroni's client (now the Estate represented by Mr. Harlem) suing Mr. Neroni for the client's own alleged participation in the fraud, according to the decision of Appellate Division 3rd Department from January of 2015;
• here - about Richard Harlem representing both the victims and the alleged perpetrator (the Estate of Andrew Mokay Sr.) in the same action, and claiming legal fees as his only damages, when such legal fees were forfeited as a matter of law because of such conflicted representation;
• here - about the improper billing practices of Richard Harlem that were accepted by Judge Kevin Dowd (because he will accept anything if it is against my husband or myself); and
• here - about the new rule of Judge Kevin Dowd invented in June of 2014 prohibiting me to impeach Richard Harlem testifying as a witness.

2) #InterferenceWithFutureRightOfInheritance;  
3) #ChoiceOfRemedies and #UnjustEnrichment;
4) #CausationOfDamages in a Judiciary Law 487 case;
5) attorney Richard Harlem's (and his law firms') and the trial counsel James Hartmann's fraud upon the court.

I look forward to seeing how Richard Harlem will react to the appeal.

This is the very first and only appeal in the Mokay case - and there were several intermediate appeals - that Richard Harlem did not try to derail by a motion to dismiss made within 2 months after the Notice of Appeal was filed, and several questions arise because of it:

1) Does Richard Harlem have pangs of conscience about his continued fraud?  Well, that is a rhetorical question, so scratch that;

2) Does Richard Harlem see the writing on the wall?

3) Did supporters of Richard Harlem distance from him finally because of his fraud, after my husband has forwarded to the Appellate Division 4th Department Committee the affidavit of David Mokay who Richard Harlem, throughout 8 years of litigation, claimed to have been his client?

Richard Harlem did not acknowledge to the 3rd Department that David Mokay provided to my husband an affidavit denying he ever was a Plaintiff in the 8-year-long litigation in two courts, after the final judgment based on ex parte trial in the Mokay case where no alleged Plaintiffs testifying, and where the only testifying (self-serving) witness was Richard Harlem himself, who testified that all his own bills were legitimate and good.

The appeal points out how Richard Harlem obtained from the Supreme Court what he already obtained previously from the Surrogate's Court, and points out that the whole legal theory of the Mokay case was a sham from the beginning, and continues to be even more of a sham, now that David Mokay came forward with his affidavit.

My husband was unable to raise on appeal the issue of fraud upon the court by attorneys Richard Harlem, Eric Jervis and James Hartmann, husband of judge Gary Rosa's law clerk Nancy Deming, because it was not part of the record on appeal.

I wonder whether Richard Harlem will actually disclose to the 3rd Department his fraud risking instant disbarment - or will continue to pretend that he represented David Mokay, even against David Mokay's own affidavit that it is not so.

We will know soon, as Respondents will have to - well - respond to that appeal.  

We will see whether Richard Harlem will have the audacity to continue to claim to the Third Department that he represents David Mokay on this appeal and represented him in the previous 8-year litigation, after David Mokay provided his affidavit saying Richard Harlem knew he never represented David Mokay, that David Mokay never hired Richard Harlem or his law firms to sue my husband on his behalf.

Stay tuned.

A Freedom of Information Request was made to New York Senate asking for e-mail addresses and cell phone numbers of the Senators and their employees, and for legislative history of certain statutes

A couple of days ago I wrote about the potential violations of Freedom of Information Law by New York State Senate in how it either seeks information from FOIL inquirers it is not entitled to seek, or how it restricts the means of making FOIL requests to such formats which do not allow to the inquirer to get proof that a FOIL request was made to the NYS Senate, or what was the request's contents.

Today I practically checked out the run-around system of how to file FOIL request with New York State Senate, found a way to preserve evidence of the filing and the contents of the FOIL request - and am sharing this information with my readers.

I've just filed a Freedom of Information Request with New York State Senate for the following public records:

===

1) State-assigned E-mail addresses and cell phone numbers of all Senators and all of the Senate's employees and officers;  copies of the latest telephone cell phone bills of all Senators and Senate's employees and officers;
2) All records pertaining to any legislation, enacted or discussed, for authority of the New York State Courts or its judges to participate in or appoint officers to the New York State-Federal Judicial Council;
3) The entire legislative history and history of enactment and amendments, including correspondence, transcripts of floor speeches, video and audio recordings of debates, for the following New York Statutes:

a) County Law 400
b) Public Officers Law 15 and 17
c) Judiciary Law 14
d) Judiciary Law 90
e) Judiciary Law 478
f) Judiciary Law 479
g) Judiciary Law 484
h) Judiciary Law 486
i) Judiciary Law 487
j) Judiciary Law 499
k) Civil Practice Law and Rules 2103
l) Civil Practice Law and Rules 5601

4) financial disclosures and disclosures of conflicts of interest by all Senators for the past 10 years.

I demand that the above records are e-mailed to me to my e-mail address at tatiana.neroni@gmail.com in scanned or print-to-PDF format, or, in case such medium is denied to me, the NYS Senate provides to me, as a response to an additional FOIL request, inventory of its printing, scanning equipment and software indicating that the requested records (i) cannot be scanned as easily as printed, and that (iii) the requested records do not exist on computers, and that (iii) NYS Senate does not possess software for printing into PDF format.

In case of denial of information in electronic format, I also request copies of all equipment sold by NYS Senate as obsolete or redundant, specifically, all scanning, printing and computer equipment, with a list of software contained on the sold computer, including, but not limited to:

1) inventory information on the equipment sold;
2) purchase value of the equipment sold;
3) documents proving title of NYS Senate to equipment sold and its value/cost at purchase;
4) selling price;
5) identity of buyer;
6) date of sale;
7) any records proving that sales of scanning/printing/computer equipment and/or software were put up on public auction.

==


NYS Senate does not allow to preserve evidence that you've sent a FOIL request in any format:

1) there is no e-mail confirmation sent to you after you click the "Submit" button, this is the only evidence I submitted the above FOIL request:

2) if you try to print-to-PDF your FOIL request, you cannot do it, the window assigned for entering your actual FOIL request is not big enough to show your entire FOIL request to be printed.

Therefore, 

before I clicked the "submit" button, 

I copied-and-pasted my FOIL request into this blog, and 

after I clicked the "submit" button, 

I've posted this blog and attempted to post it on the NYS Senate's Facebook page.

The attempt did not go through well.

Here is what I attempted to post on the "wall" of the Facebook (public) page of the New York State Senate:

Here is the response I received when I was tried to post - and my post was rejected:

But, oh the wonder of Mark Zuckerberg - I still was able to get proof that New York State Senate got my FOIL request, no matter how hard New York State Senate tried to duck it.

I (1) "liked" the New York State Senate Facebook page, and then

(2) I posted my FOIL request put into a blog onto my own Facebook page - and "tagged" New York State Senate in the post, and, of course

(3) I preserved the snapshot of evidence that NYS Senate was "tagged" with the post.

Here:

So, now I do have proof that the New York State Senate did receive my FOIL request - and it MUST answer it within 5 business days, as required by law, and 

the New York State Senate cannot get out of its obligation to fully comply with my FOIL request by claiming that it did not receive the request at all, nor can it contest what was in it, because the electronic evidence (that New York State Senate was trying so hard not to create) is right there.

So, now the run-around-of filing the FOIL request is complete, the ball is in NYS Senate's proverbial hands, and we will sit back and wait as to the Senate's responses.

I will keep my readers informed as to how New York State, the enactor of the Freedom of Information Law, complied with my FOIL request. 

Stay tuned.

Attorneys' courage in challenging the government

This young Russian civil rights attorney from Ekaterinburg (Russia, Siberia) Roman Kachanov does not look like a hero.

But he is a hero.

Here is Roman Kachanov's speech in court in defense of his client Ekaterina Vologzheninova who was labeled an "extremist" and criminally charged and prosecuted simply for re-posting other people's political posts on social media.

The official charge is for “incitement of hatred or enmity, as well as humiliation of human dignity”, a criminal offense under under Article 282.1 of the Russian Federal Criminal Code.

Here is Roman Kachanov's client, Ekaterina Vologzheninova.

Here is a snapshot made by Russian media source Grani.ru of the court proceeding against Ekaterina Vologzheninova.  Note that a court security officer in Russian court is allowed to conceal his face, like in a SWAT-team operation.

Here is Roman Kachanov's speech in her defense in court, in Russian, of course.

Here is my translation of Roman Kachanov's speech (my transcript of Roman Kochanov's speech from the original video recording, in Russian, is posted here).

"Freedom of thought and speech, constitutional freedom of thought and speech, allows me to stand in complete solidarity with the opinion of my client regarding actions of my country in the Ukraine.

I rarely side with my clients, it is actually the first time in my law practice, but here, being here as if I am a defendant, too - yes, I am perceived like that...

It is not by chance that I am here, together with my client, on this defense bench - the defendant is here close to me - I am also a defendant here, as are millions of Russian citizens who did not support occupational, land-grabbing position of my Motherland in regards to the neighboring sovereign state.

Did not support.

Millions. 

So what now - all of them should be charged? 

A war... Is going on...

Human corpses, people perish, people's pain and suffering...

Of course, people are emotional.

Of course, during war time it is acceptable.

How did the poet describe it?

"Strike at a German, kill him as many times as you see him" 

(Roman Kochanov is alluding to the 1942, well-known in Russia WWII poem of Russian poet  Konstantin Simonov "If you cherish your home and land", poetic translation is pending and will be published soon - T.N.).

And, when the poet wrote "German", he meant, naturally, fascism because it is an embodiment of the whole, if I may say...

One may make such generalizations during war time, when my people, my citizens, citizens of my country and my compatriots, are dying in a foreign land.

That's what Galich wrote - "citizens, our Motherland is in danger, our tanks are on foreign soil" 

(Roman Kochanov is referring to Alexander Galich, a now-deceased and still famous Soviet poet, screenwriter, playwright, singer-songwriter, and dissident, and to Galich's famous anti-war song 'The immortal Kuzmin', poetic translation is pending and will be posted soon - T.N.).


Here are my... Our tanks are in the foreign land!

Of course, people are not indifferent to it.

And people are being gagged.

They are told:  "be silent, do not express emotions, that's not your d****d business, it's our business to deal with it without you".

Of course, people are not indifferent.

Look at the pathos of these publications!

Look at this one verse alone!

"We are Russians!  Know it, Russians do not surrender!
We will not surrender the Ukraine to you!"

This is positive pathos, aimed to extol Russians who are fighting.... citizens of the Ukraine who are fighting on the side of their Motherland, on their own land.  Against aggressors and land-grabbers.

And now this text, the one that the esteemed state prosecutor referenced - regarding ... signed... where "volunteers" from Russia who fight are criticized ("volunteers" meant are Russian citizens who crossed into the Ukraine to fight against the Ukrainian armed forces - T.N.).

...criticism of volunteers from Russia, including Russian volunteers who fight in the Ukraine.  

This is not simple criticism, this is, so to say... (licks his lips nervously) ... The author says - "how can you?  You disgrace Russian people!  Disgrace them!

The Ukraine... For 25 years it is a sovereign state, a member of the United Nations, a founding member, one of the founding members of the United Nations, an organization that has in its Charter the principle of sovereignty and territorial integrity.

When Stalin attacked Finland, the Soviet Union was kicked out of the League of Nations - quickly!

They, probably, don't have the guts to do the same now.

But - what has happened is the same.

Why should Russian citizens be silent?

Why should they be mum as cattle, why should they be mum and yes-man the government? 

When Kiselyov, from a state channel, wields  his propaganda, when he says - "let's turn the United States into radioactive ashes" - that's not incitement of hatred and animosity?

That's not brainwashing of millions of our compatriots?

So...

You didn't have the guts to get at Kiselyov - right?

It is easier to get at a single mother caring for her own elderly mother...

Somebody read something somewhere...

Just think about it, she was persuading somebody somewhere in the rightness of her ideas...  Her colleagues, somebody else...

So what?

Yes, she was persuading.

Yes, she was advocated.

Has an absolute right to do that.

And I am also persuading, and I am also advocating - those things I am sure about.

So what?

Let's charge everybody for it.

===

Attorney Roman Kochanov did not save his client from a clearly political conviction.  

The odds were too great.

There is a tendency to charge people for contents of their political statements in Russia, as there is a clamp down on free speech elsewhere in the world - all under the guise of fighting terrorism.

Mr. Kochanov's client was reportedly sentenced to 320 hours of community service and to a completely medieval - and senseless - sentence of destruction of her laptop that she used for reposting on social media, and even sentenced to destruction of her computer mouse.

Yet, that Roman Kochanov valiantly fought for his client, the way he did, shows that, while such people like him exist, not all is lost for humanity.

If you watch and listen to him speak, whether you know the Russian language or not (the speech is short, just over 5 minutes), simply by observing Roman Kachanov's facial expression, his body language, his trembling lips when he is speaking, his occasional stammer and broken sentences, you can say that he is afraid to say what he is saying to the court.

Yet, he is saying it, on behalf of his client.

To do what Roman Kochanov is doing, at the time he is doing it, in the country he is doing it, in the political climate he is doing it, despite his likely and reasonable fear of repercussions for doing it, makes him a hero.

Roman Kochanov is one of many honest lawyers who are fighting for their clients everywhere in the world.

The toughest fight is the fight against unfair accusations of the government - government that has exponentially more resources and tools of suppression of both the client, and the attorney, than the attorney has.

Roman Kochanov was not demonstrating in the streets.

But, what he did is no less important, maybe, more.

He created an example for others inside and outside of his profession to follow, an example of integrity and standing on one's principles, even if when you are afraid, but when you think you are right, and when it is a matter of important principle.

Our freedoms and the future of democratic society rests on the courage of people like Roman Kochanov.

If in your time of need, you, for any reason, in your country, become "unpopular" with the government or people around you - because of who you are, because of what your thoughts and beliefs are - if you have nobody around you like Roman Kochanov who will be ready to put his own career and well-being on the line for your sake - because when people like Kochanov were discriminated and eliminated, you did not think it's worth it to defend them - then what?

On the right to life and to protection of the laws of human rights defenders

Yesterday, the United Nations' Human Rights Council issued a resolution reaffirming its commitment to protection of the rights of human rights defenders, after political assassination of environmenta rights activists Berta Cáceres and Nelson García in Honduras and of indigenous leader Walter Manfredo Méndez Barrios in Guatemala.

Here are faces of the murdered activists, and their reported stories.

Berta Caceres

Nelson Garcia, and the community he was reportedly helping when he was murdered

Walter Manfredo Méndez Barrios

The UN Human rights council, in its resolution, stated that 

" in most places, persons who defend communities against development projects are attacked or assassinated with almost total impunity. They are routinely accused of being 'criminals', 'traitors', 'terrorists' or 'enemies of development'. Accessing justice largely remains an illusion for the victims."

The resolution also "condemns attacks against human rights defenders and their widespread impunity, within the global context of shrinking space for civil society."
For civil rights attorneys and for criminal defense attorneys for "unpopular defendants", identifying them with their clients, accusations of being a "traitor", discrimination against them and even direct assassination of attorneys, as human rights defenders, is a routine occurrence throughout the world.

In Turkey, recently 9 attorneys belonging to the organization of Association of Lawyers for Freedom were reportedly arrested, their houses raided by police, and the lawyers are charged with belonging to a terrorist organization.

Their names are:  Ms. Ayşe Acinikli, Ms. Ayşe Gösterişlioğluİrfan Arasan, Hüseyin Boğatekin, Şefik Çelik, Adem Çalışçı, Tamer Doğan, Ramazan Demir and Mustafa Ruzgar.

According to the press report, "during their interrogation, they were questioned about interviews they gave in the media, complaints they lodged before the European Court of Human Rights (ECtHR) and visits to their clients."

In the same Turkey, a human rights attorney, Tahir Elçi, 

who was reportedly previously discriminated against, detained and who received threats because of his political statements, was murdered in November of 2015, during a press conference.

His funeral turned into a protest demonstration where thousands attended.

Political assassination of attorneys for their work is nothing new.

In July of 1979, the Italian attorney Giorgio Ambrosoli was murdered, after he found and turned over evidence of criminal activity of a sicilian banker Michele Sindona.

In February of 1989, an Irish human rights lawyer Patrick Finucane, was killed.

The murder, reportedly, involved collusion of the Irish and the British government.

This is Pat Finucane and tribute to him on the website of the law firm he has founded.  

27 years after Patrick Finucane's death, his law partners remember him and try to do him justice, at least by spreading information on their website.

In August of 1985, a South African nurse, midwife and human rights lawyer Victoria Mxenge was assassinated, right before the Pietermaritzburg Treason Trial of the United Democratic Front and Natal Indian Congress (see coverage of the trial by the Los Angeles Times in 1985).

In May of 2014, a human rights lawyer from Pakistan, Rashid Rehman, was assassinated.

In 1985, a Canadian lawyer Frank Shoofey was murdered, reportedly, shortly after he started an action against a physician for providing an abortion.

He was also warmly remembered as a lawyer for the people who did not turn down as clients average "people from the street", not just social elite.

Whatever side of the divide we are on the pro-life/pro-choice issue, to murder a person for his point of view should not ever be an option.

Frank Shoofey also reportedly represented "unpopular" defendants, such as drug dealers.

In the U.S., in 1954 attorney Albert Patterson was assassinated after he has won a nomination for the office of Alabama State Attorney General on the pledge that he will fight corruption in Phenix City, Alabama.

Reportedly, 

"A special grand jury in Birmingham handed down 734 indictments against local law enforcement officers, elected officials and local business owners connected to organized crime. Three officials were specifically indicted for Patterson's murder: Chief Deputy Sheriff Albert Fuller, Circuit Solicitor Arch Ferrell and Attorney General Si Garrett. Of the three, only Fuller was convicted; he was sentenced to life imprisonment, but was released after 10 years. Fuller died within the same year as his parole; claiming his innocence until his dying day.^[4] Ferrell was acquitted and Garrett was never brought to trial, as he was convalescing in a mental institution for most of the year after Patterson's murder."


Also in the U.S., a prosecutor Thomas C. Wales specializing in prosecution of bank fraud was assassinated in 2001.

The death toll of human rights defenders, non-attorneys and attorneys, continues to toll.

Just hours ago, news appeared of the confirmed murder of a Ukranian attorney Yuri Grabosky 

who represented, in the Ukraine, Russian soldiers charged with trespassing into the Ukraine and participating in the war on Donbass and who reportedly was doing his job very well, finding inconsistencies in the government's case against his clients, as unpopular in the Ukraine as they are.

Here is the tribute to Yuri Grabovski published on Facebook today by Nadezhda Savchenko's attorney Ilya Novikov:

Here is the translation:

"Attorney Yuri Grabovski who went missing several days ago, was found murdered.  During the last several months he defended in court a Russian citizen Alexander Alexandrov.  I did not get to know him personally, even though I and my colleagues were constantly asked whether we keep in touch.  We had mirror working situations:  we, Russian attorneys, defended in a Russian court a Ukranian citizen, Nadezhda Savchenko, and it was expected by many that our clients may be exchanged after the verdict.

Solidarity among attorneys is something more than formal belonging to one organization or one state.  My situation in this regard differs from that of other Russian attorneys, I am formally a member  of The National Association of Attorneys of the Ukraine, and can call Yuri a colleague in all possible senses.  But I know for a fact that my Russian comrades, having no relation to the Ukraine, feel the same as I do.  A large seminar of RUssian attorneys just concluded in Prague.  Our guild leader Henry Reznik, Karinna Moskalenko, Vadim Kluvgant, Konstantin Rivkin and many others are here.  We discuss this news the whole morning today.  The Federal Chamber of Attorneys of the Russian Federation will make a specific statement about the murder of our colleague Yuri Grabovsky.  There will be the right and appropriate words in the statement, but I would like to add some words of my own.

An attorney who works on a sensational and sensitive case, easily acquires in his country a status of an enemy of the people, a stranger among his own people.  I do not know whether Yuri Grabovsky received as many threats and insults from the Ukranians for defending Alexandrov as we receive from Russians for defendant Nadezhda Savchenko.  I think he did.  This is part of our profession.  Those who cannot handle it should not enter the profession.  Every attorney knows it, every true attorney perceives a murder of his colleague, even a foreign colleague, as a strike against him personally and as his personal loss.  Our clients may be enemies to one another, but we are not enemies.  We are comrades in arms.  It is believed that our weapons are not lethal, but sometimes it kills ourselves.

Tonight I will be in Kiev.  I am bringing words of support from Russian attorneys to the Ukranian legal community, to all friends and relatives of Yuri Grabovsky.

We are with you, colleagues."

==

It is wrong.

It is wrong to kill people for their own political views.

It is wrong to identify people, attorneys, with their clients and to kill them because they do too good of a job for an unpopular client.

One of the Founding Fathers of this country, John Adams represented British soldiers standing trial for the Boston Massacre.

What those soldiers did could be, and most likely was contrary to personal beliefs of John Adams.

So why did he undertake that defense?

Reportedly,

Adams "clearly knew that taking on this case was dangerous. An angry mob could threaten his family, and should his reputation be tarnished, his ambitions and economic future would be endangered. On the other hand, Adams strongly believed that the men were entitled to a fair trial and thought that history might view him as a man who put principle above his personal beliefs. One historian, Hiller B. Zobel, has suggested that Adams agreed to defend the soldiers in exchange for a legislative seat. (Three months after the trial, he was Boston's first choice for the position.) Many years later, Adams would recall his role in the trials in this way: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”

And, John Adams did not do his defense job perfunctorily, for the sake of publicity, or as it is alleged, in exchange for a legislative seat.

He did his job well:

Results of the Trials

Preston’s trial took place between Oct. 24 and Oct. 30, 1770. Adams argued that Preston had not given the order to fire, and that Preston's soldiers were provoked by the crowd. The jury ultimately acquitted Preston on the basis of “reasonable doubt” -- notably, this was the first time a judge had ever used that term. The soldiers went on trial in November. Here, Adams argued that they acted in self-defense. The jury in that case acquitted six, but found two guilty of the lesser charge of manslaughter. Finally, in December the four civilians went to trial, and all were acquitted.

Out of 13 clients, enemies of his own country who, without a doubt, killed many Americans, with tremendous odds and animosity against his clients, John Adams obtained acquittals for 11 out of 13 and convictions on lesser charges for two.

That was a tremendous result under the circumstances.

11 out of 13 acquitted, 2 convicted on lesser charges, lives of all of John Adams' clients spared.

He did his job.

As Yuri Grabovsky, Thomas C. Wales, Albert Patterson, Frank Shoofey, Rashid Rehman, Victoria Mxenge, Patrick Finucane, Giorgio Ambrosoli, Tahir Elçi were doing theirs.

And, with due respect to Ilya Novikov's heartfelt tribute to Yuri Grabovsky, I disagree with Novikov's statement that every attorney should be prepared to be killed for doing his job, or not enter the profession.

People should not be killed for their views and political activity.

People should not be killed for doing their jobs.

People should not be preparing themselves for martyrdom when entering a profession.

The society cannot expect such a high price from their court representatives.

If we allow human rights defenders to be discriminated and killed, if we allow attorneys to be discriminated and killed, simply because they do a good job for an "unpopular" client, then we, all of us, the remaining living, are unprotected from the same risks that we expose human rights defenders and attorneys by not standing by them.

This article is a tribute to all human rights defenders who gave their lives for defending other people, and a tribute to all attorneys who have been murdered for doing their jobs.

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.