A Freedom of Information request was made with the New York State Department of State for policies restricting Freedom of Information requests

I've just blogged about New York State Department of State's response to my Freedom of Information request that 

1) denied my request, without prejudice;
2) directed me to meet additional conditions before my request may be satisfied.

That was a constructive denial of my FOIL request.

I will file an administrative appeal of that denial - once the NYS Department of State provides me with the name and address of the officer where such an appeal should be sent 

(each agency should designate an officer to hear such appeals as part of its FOIL compliance - for example, in Delaware County, New York, an agency that I frequently FOIL, the officer to review administrative appeals is, upon my information, the Chairman of the Delaware County Board of Supervisors James Eisel).

Meanwhile, though, I have made a new FOIL request asking to disclose to me copies of any written policies by the New York State Department of State directing restrictions on access to records, as revealed to me by NYS DOS "assistant records access officer" Helen Wilbard in her today's e-mail to me.

Here it is:

I have sent this FOIL request by e-mail here:

I will publish NYS Department of State's response to this FOIL.

Stay tuned.

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.

Are we about to see a shift to secret lawyering?

The recent "Ashley Madison" scandal left customers of this "service" (which promised privacy of customers' information), well, exposed with secrets that they wouldn't want to parade in public, and even, reportedly, caused suicides.

Yet, latest developments with breach of attorney-client privileges by law firms (disgruntled former employees of such law firms) or through exposure of their computer-based information to international hackers, show that what people do in bed with other people not their spouses may be the least of our concerns.

Well, now it concerns only clients of 50 U.S. elite firms - according to the recently reported threat to security of client information in those unidentified firms.

But, if technically such a breach is possible, it is possible with any other law firm whose computers are exposed to the Internet, and that is, probably, the majority of law firms' computers - where people need to do legal research online.

Just recently, a disgruntled employee of a Panama law firm spilled her former employer's client list to journalists - which led to extrordinary international scandals, at the highest political level.

Also, reportedly an international hacker recently announced that he is hiring other hackers to breach security protections and obtain client lists from the world's 50 leading U.S. law firms.

Since the cybercriminal is posting about his plans on forums, and is thus openly challenging those elite law firms, he may already have a plan and may already know some weakness that the elite law firms' security features are exposed to.

So, in the increasingly globalized and "internetized" world, the large clients of law firms are increasingly exposed to risks that may not be worth it.

What would be the resulting strategy of the government and the law firms?

To make names of the law firms themselves secret to prevent such targeting?

But what then about the state licensing requirement - where the law license of each attorney in the U.S. , as well as his or her place of work - is a matter of public record?

Will underground attorney licensing and underground lawyering by secret mammoth law firms start taking place from now on?

Interesting times we live in...

The police can officially and "legally" lie... And, obviously, will continue to "testilie"...

From the same glorious 9th Circuit that a Nevada federal judge Gloria Navarro cited in denying to a criminal defendant his 6th Amendment constitutional right to counsel of his choice in a criminal proceeding, comes yet another pro-prosecution case.

Ruling that the police can lie to the suspect at a traffic stop, and that does not cause the evidence to be suppressed.

This is not what the police routinely tell schoolchildren when they come to talk about their profession.

You know, kids, I lied yesterday 50 times at traffic stops, and, if I stop you, I will lie to you, too, to get a conviction against you or to drum up the necessary "traffic ticket quota" to get a bonus.

Now, clap your hands, I am honorable!

The problem with "legally" allowing the police to lie is that the police do not know where to stop in lying - and go into "testilying", see, for example, here and here, lying under oath in grand jury proceedings and criminal jury trials, as well as at pre-trial hearings.

Lying through their teeth.

Under oath.

As if that is their God-given right.

That's why I personally consider the 9th Circuit's latest bow to the police to continue "legally" lying - a very bad precedent.

Minnesota and Nevada federal judges are on the same bandwagon using occupational licensing of attorneys to deny counsel of choice to criminal defendants in high profile cases

I recently described on this blog how a federal judge in Minnesota did not allow representation of a criminal defendant by a criminal defense attorney of his choice because of the alleged disciplinary history the attorney had, even though the judge had no right to restrict right to counsel at all, or on such grounds.

In that particular case, occupational licensing (discipline from another state imposed upon the criminal defense attorney) was used by Minnesota federal district court judge Michael Davis to preclude criminal defense attorney Mitchell Robinson from representing criminal defendant Hamza Ahmed. 

Occupational licensing is used for the declaratory purpose of protecting consumers from bad service providers.

Attorney licensing is (supposedly) no different.

When an attorney is licensed - or his or her license is taken - that happens, supposedly because to allow the attorney to practice will hurt the consumers.

There are certain ways how an admitted attorney in one jurisdiction may be precluded from practicing in another jurisdiction - lack of automatic reciprocity of attorney licensing across jurisdictions.

If an attorney is licensed, for example, to practice law in the State of New York, his license may not permit him to practice law in a state which does not have mutual agreement with New York recognizing each other's state licenses without an additional bar examination and a separate licensing process.

Federal courts are usually less restrictive.

If an attorney is admitted in at least one federal court, they usually admit that attorney in their court, permanently or for a particular case (it is called a "pro hac vice" admission) without any problem.

Apparently, not so if the incoming attorney attempts to represent a criminal defendant in a high profile case.

In the case I described earlier on this blog, criminal defendant, Hamza Ahmed, who is charged with various counts related to ISIS, was denied representation by an attorney who is admitted in the State of Minnesota, so there was supposed to be no problem allowing him to step into a federal case in the same state of Minnesota.

In the Cliven Bundy case currently prosecuted in Nevada, after the famous ranchers' stand-off in Oregon where Cliven Bundy's son Ammon Bundy was involved, a criminal defense attorney who tried to enter the case and represent the defendant (and was denied that right by the judge on pretextual grounds) was not registered in that particular federal court, and filed a petition to the court for admission for that case only - a "pro hac vice" petition.

There is no question that Larry Klayman, the attorney who attempted to get into the criminal case on the criminal defense side, and was denied entry, is a seasoned, skilled and knowledgeable attorney.

Attorney Larry Klayman is skilled, seasoned, aggressive and courageous to get his point across, even if it does not coincide with the point of view of judges - and that may exactly be the reason why Larry Klayman was blocked from representing a criminal defendant charged with a list of serious felony counts.

Here is what Cliven Bundy was charged with:

 And, Cliven Bundy was represented by just one criminal defense attorney - who wanted Larry Klayman to join the team and be the SECOND criminal defense attorney on the team.

The Prosecution has FOUR prosecutors on their team across the defendant's current ONE.  

In Hamza Ahmed's case in Minnesota the prosecution had FIVE prosecutors against Hamza Ahmed's ONE public defender.
There was no question that Larry Klayman was the attorney of Cliven Bundy's choice.

As I indicated above, Larry Klayman was, undoubtedly (1) skilled and (2) wanted by his client.

And, these two conditions was undoubtedly enough to have representation by Larry Klayman mandated by the 6th Amendment of the U.S. Constitution that, under the Supremacy Clause, trumps any inconsistent state law.

Yet, Chief Judge Gloria Navarro, of the Nevada District Court, thought, as well as the U.S. Court of Appeals for the 9th Circuit, that there is a compelling interest that may allow her to preclude representation of a criminal defendant in an extremely high-profile case from being represented by a skilled criminal defense attorney of his choice helping the defense team.

The Nevada Chief federal judge Gloria Navarro would not allow representation of Cliven Bundy in his criminal proceedings by the well known conservative public interest lawyer Larry Klayman.

This is the decision:

The Sixth Amendment right to counsel in criminal cases does not have exceptions in its text.

So, any exceptions invented by courts - like the one Chief Judge Gloria Navarro cited - is amendment of the U.S. Constitution by the court, and is completely illegal, and unconstitutional, as is Chief Judge's Navarro's order denying an extra skillful counsel to a criminal defendant faced by steep charges and a prosecution team of 4 prosecutors against his one current criminal defense attorney.

 Of course, the particular attorney who is being blocked from entering the case, sued the federal government based on Edward Snowden's disclosure of NSA surveillance over American citizens through cell phone data.

Of course, Larry Klayman won a groundbreaking decision against the government on the basis of government surveillance.

Of course, discipline imposed upon him in Florida - that's why Judge Navarro blocked him from representing the criminal defendant who hired and chose him - had nothing to do with his ability to provide a quality criminal defense, and for Cliven Bundy, I am sure, that particular quality in a lawyer controls at this time.

Chief Judge Gloria Navarro, along with the U.S. Court of Appeals for the 9th Circuit, found an exception to the 6th Amendment right to counsel - which, in her view, trumps the U.S. Constitution that she is sworn to uphold.

The court-invented exception to 6th Amendment is like this:

 The 6th Amendment right to counsel in a criminal case is now, apparently, according to Chief Judge Gloria Navarro, a "qualified" (restricted) right.

And it is "qualified" (restricted) if satisfying that (constitutional) right will be too much of a burden for the court where counsel is "incompetent or unwilling to abide by court rules and ethical guidelines".

But - wait a second - if for any reason, Cliven Bundy chooses to represent himself, he cannot be blocked from doing so even:

• if he is incompetent;
• if he is completely unethical with the court; and
• if he is completely unable or unwilling to follow court rules

 His right to self-representation cannot be denied then.

His right to representation by another cannot be denied either - there is NO such restrictions in the text of the 6th Amendment, and a federal court does not have an authority to amend the U.S. Constitution, the clear and unambiguous text of the 6th Amendment, through interpretation.

Chief Judge Navarro indicated that a criminal defendant's 6th Amendment right to counsel of his choice may be restricted only for "compelling reasons", meaning that the so-called "strict scrutiny" test is supposed to be applied.

But, first, the strict scrutiny test (invented by the U.S. Supreme Court to analyze whether the government STILL has authority to violate fundamental constitutional rights of individuals, even if the U.S. Constitution clearly says it doesn't give the government such an authority) requires also to go through an extra step - to verify whether the restrictions of the 6th Amendment right is "narrowly tailored" to that allegedly "compelling interests".

You saw in the order of Chief Judge Gloria Navarro (cited ) above the cited "compelling reason" to deny criminal defendant Cliven Bundy a counsel of his choice - "fair, efficient and orderly administration of justice".

Huh?

To deny a federal constitutional right to counsel of his choice to a criminal defendant who, once again, has only one criminal defense attorney on his side, while the prosecution has 4 prosecutors on their team - satisfies the "compelling" interest of "fair, efficient and orderly administration of justice"?

And, what "orderly" and "efficient" has to do with "justice"?

There is no compelling interest by the government for "efficient" administration of justice, because the only "efficient" resolution for the government is a conviction.

There is no compelling interest of the government in "orderly" administration of justice either, because the only "orderly" way out is to kill all criminal defense and civil rights attorneys or permanently seal their lips (they are trying to do that through attorney discipline that disproportionately, if not solely, targets feisty criminal defense and civil rights attorneys).

There is no statutory or constitutional definition of "orderly" or "efficient" administration of justice, and what is a "fair" administration, is already set in the U.S. Constitution, its Amendments and federal penal and procedural statutes.

So, the strict scrutiny test, as illegal and unconstitutional as it is in itself, was not even followed by Chief Judge Gloria Navarro to the end, she did not prove:

(1) that "fair" administration of justice is a "compelling interest" OF THE PROSECUTION and the court that may be used to restrict a criminal defendant's 6th Amendment right to counsel;

(2) what "orderly" or "efficient" administration of justice is, why it is a "compelling interest" of the government, and what is the legal basis to allow that "compelling interest" to trump a fundamental constitutional right under the 6th Amendment (other than a decision by another court made without authority to make such a decision).

With such a drastic decision, made on such a contrived ground - a decision that very obviously stinks - I started to look what kind of background Chief Judge Gloria Navarro has to lead her to make such a decision.

Chief Judge Navarro, according to her official biography, worked previously both as a public defender, and as a prosecutor.

Apparently, becoming part of judicial establishment must go to people's heads.

Obviously, Judge Navarro's ruling may help her career should a Republican president be elected (even though she was appointed initially to the bench by President Obama).  And Chief Judge Navarro, who is just 48 at this time (very young for a federal judge) has some ways to go up the ladder - she can still become:

• a federal appellate court judge;
• a federal appellate court's Chief judge, and
• a U.S. Supreme Court justice

And, these three extra steps to go may make the whole difference in whether Chief Judge Navarro wants to do "fair" administration of justice - or just "efficient and orderly" one.

One thing is also clear - that Chief Judge Navarro's order is unconstitutional, that it was a reversible error to deny counsel of his choice to a criminal defendant based on judge's contrived reasoning.

But, since Judge Navarro already relied on the 9th Circuit "precedent", it will be for the U.S. Supreme Court - if it would take the case for review should there be a conviction and appeal - to rule on this issue.

In this country the U.S. Constitution exists and becomes visible only if the Council of 9 (now 8) elders says so.

New York Senate does have a (no longer secret) contact e-mail address for Freedom of Information Requests!

I wrote on this blog previously about the run-around people are put through when they are making FOIL requests with New York Senate.

I also analyzed, in detail, the illegality of certain restrictions or demands by New York State Senate as a condition to file a FOIL request with the Senate.

Also, I blogged about my own attempts to file a FOIL request with New York Senate - the lack of confirmation e-mail, my attempts to secure that confirmation through NYS Senate's Facebook page etc.

Yesterday - lo and behold - I received a response from NYS Senate to my FOIL request.

And, I am happily informing my readers that they now have an e-mail to use to file their FOIL requests, instead of the Senate's run-around "fill-in" page that provides you no means of confirmation and improperly restricts you in how you can file your FOIL requests, what kind of information you "must" provide about yourself as a condition of filing such FOIL request, and what you can ask.

Here is the FOIL e-mail of the NYS Senate:  foil@nysenate.gov.

Here is the full response by the NYS Senate to my FOIL request - which I am going to appeal, of course.

I will fully analyze the response in a separate blog, but the key preliminary points are that the NYS Senate:

1) claimed a fee from me when I asked to provide to me the records I requested in digital format, or, if the request is denied, an inventory of the Senate's scanning equipment - the Senate provided no inventory, but denied provision of records in digital format and attempted to charge me a fee;

2) denied me records that I clearly identified - financial disclosures of NYS Senators and enactment/amendment history of several statutes, and

3) asked me practically for the purpose of my FOIL request - by requesting to narrow down my request from ALL records of enactment/amendment history to SOME records that I am looking for.

In any event, you now have the e-mail address to file your FOIL requests, instead of the Senate's imposed online "form".

Once again, foil@nysenate.gov.

Enjoy and use!

What 1st Amendment?

Judicial retaliation against attorneys who criticize judges has been a recurrent topic on this blog.

I, as an attorney whose license was suspended for two years on November 13, 2015, for criticizing two judges in three motions, two of them to recuse, know the brunt of that retaliation first-hand.

Despite the fact that my criticism was (1) true and (2) fully protected by the 1st Amendment (as the U.S. Supreme Court confirmed in June of 2015 in the case Reed v Town of Gilbert, invalidating content-based regulation of speech that did not pass strict scrutiny - and strict scrutiny test was never applied to my sanctions - courts stubbornly continue to enforce the unconstitutional suspension.

I am not alone in my plight.  Attorneys throughout the U.S. are being sanctioned, and raise the issue of their 1st Amendment protection to criticize misconduct of public officials, including judges.

Now, amazingly, a judge entered the fray of this fight.

In my previous blog (just updated) I described the plight of a judge who dared to call a spade and a spade and accused a prosecutor of being racist - based on the prosecutor's unquestionably racist actions.

Now the judge is in hot waters and is facing a disciplinary action for his protected speech on issues of grave public concern - CONFIRMED, systematic racism in criminal proceedings in his state.

Now a judge has to sue the Judicial Conduct Commission to protect his right of free speech that he did not abdicate when he put on his black robe - and that is exactly the same situation with attorneys, who did not abdicate their 1st Amendment rights to speak out on issues of public concerns, including judicial misconduct, in exchange for their state license and "permission" by the state to earn their livelihood, a federal constitutional right.

So, when an attorney criticizes a judge, she is disciplined.

When a (black) judge criticizes a (white) politically connected attorney, he is about to be disciplined, too.

This bacchanalia of discipline only hurts the public and prevents their access to court by eliminating attorneys and judges who can actually do their jobs honestly, as they were sworn to do.

And the public should be aware of it.