Wars over apple green grass that hurt the public

Earlier this year, I've posted an article about a mysterious case of attorney discipline in South Carolina that originated in federal courts, involved hidden court dockets and made no sense whatsoever from the text of the disciplinary decision.

In that blog, I pointed out that a member of the public cannot figure out from the disciplinary decision, what cases are involved, and the official registry of federal court cases do give any clue in that matter.

Since then, I received a tip from a reader, pointing me to the right cases.  I obtained some, but not all docket reports about the underlying federal case in question, and so many "irregularities" surfaced in the case that it made my head spin.

An attorney was disciplined based on that case by the South Carolina Supreme Court.

Attorney regulation, and discipline, exists - at least, the government and legal establishment declares that it is the main purpose of attorney regulation - to protect consumers from incompetent or unscrupulous attorneys.

But, as I read through the documents in the case that the tip pointed me to, I realized more and more that the public was protected from the wrong person, and that the people who the public needs to protect from are those who prevented proper enforcement of federal law, hid court dockets (an unconstitutional practice, see a similar scandal emerging in New York courts at this time) and punished not only an attorney for his diligent work, but also a party for following the law.

This case deserves diligent deciphering - and I will try to do that.

First of all, it helps to understand who the actors are.

Here is the original complaint, filed in the U.S. District Court in the Middle District of Georgia before judge Clay D. Land (a "CDL" designation in the civil action number on the right).

Note that Judge Clay Land, after transferring this case to South Carolina federal court - a move that decided the fate of the case and the fate of attorney Nolan, in favor of a South Carolina corporation despite recorded evidence of its infringement of intellectual property rights of two Georgia corporations, including a corporation called "University of Georgia Research Foundation" - was elevated to the position of Chief Judge of that federal court.

Let's also note that the attorney for defendants was a Robert Fredrick Goings of Columbia SC, of the Goings Law Firm, see trial docket report:

The Goings Law Firm advertises results of its work - with the required disclaimer at the bottom of the long list of achievements, that the firm does not guarantee those results.

As one of the top results on the list it lists this: "successful defense verdict in a multi-week intellectual property and infringement trial in the Federal District Court of South Carolina.  Prevented a $4.2 million dollar verdict.

Boy did Robert Fredrick Goings prevent that, and then some.  After all, attorney Robert Fredrick Goings, by his own admission, "has a knack for winning big verdicts".

Here is also one more interesting document filed by attorney Robert Fredrick Goings with the South Carolina STATE Supreme Court

In this masterpiece, attorney Robert F. Goings who "has a knack for winning big verdicts", as of January 13, 2014, when the appeal was still pending, attorney Robert F. Goings complains to an entity where an attorney is not licensed, about a case in a federal court governed by federal law and under the jurisdiction of attorney regulation by the federal bar.

I wonder why attorney Robert F. Goings did not file his complaint where he was supposed to.

But, anyway, Robert F. Goings admits in his complaint that

• the attorney he is complaining about is an "out of state attorney"

Actually, attorney Goings likely made a false statement in that complaint claiming that

"Mr. Nolan was admitted pro hac vice to practice in South Carolina in the /sic/ a civil action captioned The Turfgrass Group, Inc. and the University of Georgia Research Foundation, Inc. v. Carolina  Fresh Farms, LLC, Civil Action No. 5:10-cv-00849-JMC".

Watch the careful sleight of hands by attorney Robert Goings:

• he misrepresents to the South Carolina Supreme Court that attorney Duff Nolan was actually admitted pro hac vice to practice IN SOUTH CAROLINA - that had to be admission by the SC Supreme Court to practice in state courts of South Carolina; then
• he carefully omits the name of the court in claiming that after being admitted "pro hac vice to practice IN South Carolina", Mr. Nolan actually practice "in South Carolina", in a "civil action No. 5:10-cv-00849-JMC".

The problem with the last statement though is, as the docket indicates, and Robert Goings own "motion for sanctions" attached to the complaint confirms, that the case was litigated not "in South Carolina" - not in South Carolina State Courts - but in a federal court:

•  so, the governing disciplinary authority over attorney Duff Nolan, an attorney who IS admitted pro hac vice in FEDERAL court within the territory of South Carolina, but IS NOT admitted by the State Supreme Court of South Carolina, and the case thus DOES NOT invoke South Carolina STATE attorney ethical rules - would have been
• the disciplinary committee of the U.S. District Court for the District of South Carolina, where the case was litigated; 
• the U.S. District Court of the State of Georgia (where the case was filed originally), or
• the Arkansas State Supreme Court where attorney Nolan is licensed originally.

But, attorney Goings obviously understood that it would have been a waste of time to file a complaint there, because attorney Nolan did not violate any laws or ethical rules in Arkansas, or in federal courts.

Moreover, attorney Goings was not very forthcoming in the State Supreme Court of South Carolina either, because he also omitted to mention that sanctions he requested against attorney Nolan in federal court were denied on May 3, 2011, 3.5 years before he filed his complaint with South Carolina Supreme Court.

Attorney Goings' client did not appeal denial of sanctions against attorney Nolan, but such a denial had a collateral estoppel effect upon the South Carolina Supreme Court, barring it from imposing sanctions upon an attorney where the original federal court did not impose any discipline.

After all, what attorney Goings asked the South Carolina STATE Supreme Court to impose upon Attorney Nolan (who was not at the time admitted in South Carolina STATE Supreme Court, and the action attorney Goings was complaining about was not from the South Carolina State Supreme Court) was the so-called "reciprocal discipline" which could only be imposed if the federal court imposed discipline upon attorney Nolan - which did not happen.

The sanctions were in the nature of an order "in limine" (excluding evidence), and I will discuss legality of that order later in this article.

Moreover, attorney Goings clearly indicated in the Motion for Sanctions attached to his complaint against attorney Nolan that the governing law of the case is FEDERAL law, because not only the case was litigated in a federal court, but it was not even a diversity case, it was a "federal question" case, charging violation of 2 federal statutes, as attorney Goings clients' acknowledge in their "motion for sanctions" in federal court:

so the so-called "Eerie doctrine" - where the federal court sitting within the territory of a state "borrows" substantive law of the state to decide a case brought in diversity - did not apply.

The federal court case was governed by federal law, in terms of procedural law and substantive law alike.

Rules of ethics of South Carolina Supreme Court had no place in that federal court proceeding where they contradicted rules of ethics accepted in such federal proceedings, and, as attorney Nolan pointed out in his response to the complaint of attorney Goings, "surreptitious recording" in preparation for an intellectual property infringement case in federal court, is an accepted practice recognized by other federal courts:

In his response to the complaint, attorney Nolan also attached an appellant's brief to the federal court, pointing out that the appeal was still pending, and described the "apple of discord" in litigation, licensing rights to market and sell the so-called "centipede grass", an apple green type of grass that does not turn brown during southern winters, but remains green, a clear attraction for golf courses that abound in southern states of the U.S.

On appeal, plaintiffs argued, among other things, the following:

Then, things got fuzzy.

There were actually two appeals in this case, as the trial docket shows, with two different docket numbers.

The first appeal was dismissed by the federal appellate court on the day of filing, in 2013.

The second appeal has a long docket - and was eventually affirmed in 2015 without an explanation by the U.S. Court of Appeals for the Federal Circuit.

Yet, here are some interesting details about the dates in the appellate docket.

On January 8, 2014 Attorney Nolan's clients file an Appellants' Brief in electronic format.

Within 5 days, on January 13, 2014, after obviously having received the brief (in electronic format) and being upset about it, attorney Goings HAND-DELIVERED his complaint against opposing counsel attorney Nolan:

Apparently, such a complaint, filed before the end of appellate litigation, and with the wrong disciplinary body, had a clearly discernible aim - to rattle the opposing counsel so that he would not be able to function well on appeal.

And now, to the last thing that the three courts involved in the case:

1. the U.S. District Court for the District of South Carolina;
2. the State Supreme Court of the State of South Carolina, and
3. the U.S. Court of Appeals for the Federal Circuit

apparently wanted to consider - the law.

Here is a table I've put together to illustrate what has happened to the plaintiffs and to their attorney Duff Nolan, even though the law was clearly on their side.

Jurisdictions	Statutory prohibition on surreptitious recording of telephone conversations with consent of only one party to the conversation	Rules of attorney ethics on surreptitious recording of telephone conversations when one party to the conversation consents	Rules on suppression of evidence in court based on legal conduct	Was the Eerie doctrine applicable in federal court?	Were state ethical rule for attorneys applicable to rights of a party in federal court?	Are investigators allowed to put out a decoy to catch a thief?
Arkansas	No	No	No			Yes
Georgia	No	No	No			Yes
Federal Courts	No	No	No	No, it was a “federal question” case, federal law was applicable; surreptitious recording was legal under the federal criminal statute, and a decision on point in SDNY		Yes
ABA	n/a	No	n/a			n/a
South Carolina	No	Yes, in reliance on overruled ABA rule	No			Yes

All three states involved:

• Arkansas;
• Georgia; and
• South Carolina

allow surreptitious recording with consent of one party to the conversation - and so does federal law, 18 U.S.C. § 2511.

So, recordings for purposes of introduction of those recordings in a federal court "federal question" case was lawful under federal law, and under the law of all three states:

1. where the plaintiffs' attorney was originally from - Arkansas;
2. where the case was originally filed in federal court - Georgia; and
3. where the case was later litigated on transfer in federal court - South Carolina.

Since it was a "federal question" case, federal law controlled.

Under federal law it was legal.

Under the law of all 3 states it was legal.

If it was legal for the party plaintiffs to do it, it was admissible.

Had it been admitted, as attorney Goings boasts on his website, the plaintiffs could have had a verdict against them for $4.2 million - without even a jury trial, as a matter of a summary judgment.

Instead, not only the case was decided for the defendants - because of an application of South Carolina State rule of attorney ethics that, while claiming it followed the ABA rule, contradicted the modern ABA rule on the subject which was aligned with state and federal law while the South Carolina attorney ethics rule wasn't, to the work of plaintiffs' investigators which was legal under state and federal law.

Attorney Nolan attempted to explain to the South Carolina disciplinary court - as if they wanted to hear him - that, as a matter of due diligence, because of the case Twombly in federal court that required enhanced factual pleadings to survive a pre-answer motion to dismiss, he had, as a matter of due diligence, to do such investigation pre-filing.

As a matter of fact, had attorney Nolan not ordered pre-filing investigations, he could have been sanctioned for filing a meritless lawsuit without conducting a proper pre-filing investigation, based on "conclusory allegations alone" - but then, of course, defendants would have rounded up their wagons, instructed their employees and hid their evidence.

So, apparently, when you step on the wrong toe in litigation, you can be sanctioned no matter what you do.

Attorney Nolan was sanctioned because he conducted his due diligence, as required of him by attorney rules of professional conduct, as well as his duty to their client.

What I cannot get is - why federal court punished two plaintiffs, corporations, for lawful conduct, depriving them of damages for violation of their intellectual property rights?

Once again - whatever attorney Goings could be alleging that attorney Nolan could have done wrong under South Caroline State rules of ethics for attorneys, the plaintiffs and their investigators did nothing wrong under federal or state statutory law, and there was no legal basis to strike the recordings.

I wonder what kind of strings were pulled by the defendants to block clear evidence of wrongdoing, lawfully obtained by the plaintiffs, so that the jury would return a verdict for them?

Because, when clear law is not applied, it is clear that strings had to be pulled, on all levels, so that:

• Lawfully obtained evidence that had to result in a summary judgment for the plaintiffs, was blocked, and thus returned a jury verdict for the defendants (because the jury was not allowed to hear those recordings where investigators posed as customers, in a proven investigative technique of "posing a decoy to catch a thief";
• Well-respected experienced attorney for plaintiffs was sanctioned by federal court for doing his duty and following the law, and then sanctioned by a South Carolina State Supreme Court for allegedly "violating the state ethical rule" - in federal court, where what he did was legal.

All of the above so that attorney Robert Fredrick Goings could post this on his website?

But, whatever fee attorney Goings got for this case, wasn't the price for the public too high?

Because, whenever a court case is decided not on the law, but obviously based on in-state connections against out-of-state litigants and their out-of-state attorney, and especially where, like with attorney Nolan, a pretense is made that, by using connections in imposing court sanctions against a person who did nothing wrong and who diligently and lawfully worked to ENFORCE the existing law - justice is subverted.

Moreover, the University of Georgia Research Foundation, Inc., that was trying in vain to regain its rights against those who were unjustly enriching themselves by selling the product of their research, is a tax-exempt entity, operating on people's tax-exempt donations, and tax dollars.

It is the people, the taxpayers who were cheated in this case - because somebody knew the right strings to pull so that the law would stop applying.

And that's a complete shame.

I hope, this case is not at an end, and should be looked into by proper federal investigative authorities.

The should be copies of recordings still remaining for review, proving the case for the Georgia Research Foundation, and there is a deposition (marked confidential, but available for a fee online on Pacer.gov), which I have bought, together with exhibits, and am now publishing for everybody to see.

Judge for yourself how that case was decided.

It is all about pretty apple green grass that taxpayer-backed research produced - and private corporations now distribute without a license because federal court did not want to enforce federal laws.

Let's remember that.

And ask for impeachment of federal judges who blocked this license infringement case.

Here are their names and happy faces.

Judge Clay Land of the U.S. District Court for the Middle District of Georgia, who transferred the case from Georgia to South Carolina, and who was since elevated to the position of Chief Judge of that court.

Judge J. Michelle Childs, an "ardent ambassador" instead of a neutral applier of the law,

who went along with Robert Goings motions for sanctions and in limine and blocked lawfully obtained investigative evidence that, if allowed to be used, would have resulted in a summary judgment and a jury verdict, possibly, much exceeding the $4.2 million that attorney Robert Goings is boasting of "defending" his clients against.

And, Federal Circuit judges who affirmed the jury verdict made by a cheated jury who was not allowed to see the actual evidence in the case because of the unlawful decisions of the "ardent ambassador"  District Judge J. Michelle Childs - through a "non-precedential decision", without any explanation, possibly without doing any work at all.

After all, no effort is needed to put one word "affirmed" on a piece of paper instead of engaging in legal research and reasoning, and that's what the three of them did.

Chief Judge of the U.S. Court of Appeals for the Federal Circuit Sharon Prost:

Federal Circuit Judge Pauline Newman, see also here (born June 20, 1927, and who was 88 years of age when she decided to endorse blocking lawfully obtained evidence without an opinion or explanation):

and

Federal Circuit Judge Richard Taranto, former law clerk of the U.S. Supreme Court Justice Sandra Day O'Connor:

So - Defendants won

Attorney Goings won, and can continue advertising his winnings for this clients (without, of course, mentioning what kind of means he uses to get those winnings).

Judge Clay Land won, having been promoted to the position of Chief Judge for his transfer of the case into South Carolina, where the right connections could be pulled so that the case is decided in favor of South Carolina defendants and South Carolina attorney.

The three smiling-face judges do not care, they sit in the Federal Court of Appeals for life, and will be throwing around speeches about "judicial excellence" and the rule of law until they drop dead - while doing quite the opposite, without any explanation whatsoever.

And we, the public - lost.

Don't tell me that this is "the rule of law".

The rule of law is actually following the law, federal statutory law in this case, and not deciding a court case on a whim.

This is, ladies and gentlemen, the "rule of men" - and women - 3 women and one man actually decided this case.

We shouldn't tolerate such a rule of connections and such a perversion of justice, allowing private entities to enrich themselves at the expense of publicly-funded research institutions.

Impeach them.

New York courts engage in an unconstitutional practice of hiding entire court cases from public docketing, and administrators of courts on all levels pretend the have no clue. Maybe, impeachment will help?

More than a year ago I wrote a blog about the U.S. District Court for the Northern District of New York hiding the entire docket of my alleged suspension in that court.

I said "alleged" because suspension of an attorney, same as an admission, is a public court order, and, while I am listed in that court as "suspended", there is no such public court order - or even a public docket on Pacer.gov showing that there is a disciplinary case against me.

That was true in 2015, 2016, and that remains true today.

Here is the scan of all cases where I appeared as an attorney or a party (or both), and there is no case there that started in November of 2015, after I was (illegally) suspended in New York State for making motions to recuse on behalf of my indigent clients. 

While the Northern District of New York continues to play game with hidden court dockets, a scandal is currently unraveling in New York State where a Nassau County legislator #LauraCurran raised the issue that Nassau County Courts did the same thing as the U.S. District Court for the Northern District of New York did in my case - the courts are hiding court dockets.

And, while it was obviously ok in my case for the NDNY court to play these games with my hidden docket and claim that I am somehow suspended - while now public docket or order of suspension was available, when New York State Court were caught red-handed in hiding court docket, the reaction of state court administrators was different.

First, the press picked up on those hidden dockets, and ran not just one, but two articles so far about it, here and here - before New York State Court Administration reacted.

The press indicated that it is not clear HOW MANY of hidden court dockets exist - how many of these dockets New York State Courts (where all judges are sworn to uphold the U.S. and New York State Constitution and federal and state law, as well as Canons of Judicial Ethics, engaged in this clear fraud upon the public and violation of their oaths of office).

Moreover, John Ferretti who was portrayed by the press as a "Chief Deputy Clerk", but who is listed on New York State attorney registration website as THE Nassau County Clerk

  


claimed that he "does not know", for how long the "practice" of hiding certain court dockets was going on in Nassau County.

John Ferretti, of course, is not Nassau County Clerk.

Maureen O'Connell is listed as such,

Maureen O'Connell is also an attorney "with no record of public discipline".

"No record" in New York courts is becoming a new pun, isn't it?

Maureen O'Connell said nothing about the ongoing scandal with missing court dockets on her webpage.

Look what Maureen O'Connell tells us on her webpage:

"I am delighted that you have chosen to visit the County Clerk’s online office. Please note that Nassau County land documents are now available to search online for your convenience.

The County Clerk is an office created by the New York State Constitution, serving as Clerk of the Supreme and County Courts and as an agent for state and federal governments. In addition, the Clerk is responsible for recording documents relating to real property located in Nassau County and maintains the official index of real property ownership.

As County Clerk, my primary objective is to continue to implement strategies to promote real-time services and facilitate enhanced access to serve the residents of Nassau County. We constantly are working to strip away layers of bureaucracy, improve access to official records, and streamline operations while containing costs.

The Nassau County Clerk’s Office offers a variety of services to assist the courts, legal professionals, and the public. We process hundreds of millions of dollars per year in transactions and have many statutory duties. I hope our website is informative and that this office processes your transaction to your satisfaction.

And, if he lied to the public on that - and I am sure he did, because the County Clerk's office is where all cases are filed, and where the actual sealing was taking place - he engaged in untruthful conduct making John Ferretti unfit to be an attorney.

I will not hold my breath though to wait until disbarment of John Ferretti, as I am sure the system that "regulates" attorneys will protect "their own" - as it always does in New York, without fail, and especially given how much John Ferretti knows about the dirty little or not-so-little dealings in courts.

And, if that practice exists in Nassau County, I wonder whether it exists in all other courts in the State of New York.

Of course, now that the scandal is raging in the press, New York Chief Administrative Judge Lawrence Marks had to say something, so he said that the practice of hiding court dockets, if it really is like that, is "troubling".

Of course, it is not just "troubling", but, as the press had no trouble pointing out, unconstitutional - as held in the 2nd Circuit 13 years ago (having jurisdiction over New York), and in 11th Circuit:

Here is another article describing how dockets are being hidden in federal trial courts.

And, here are the decisions of the U.S. Court of Appeals for the 11th Circuit in U.S. v Valenti in 1993 and of the U.S. Court of Appeals for the 2nd Circuit in Hartford Courant Co. v. Pellegrino in 2004 ruling that hiding court dockets from the public is unconstitutional.

I know wonder whether New York State Courts will now reveal to the public:

1. all index numbers concealed over, let's say, 50 years going back;
2. all names of parties and their attorneys involved in knowingly engaging in litigating cases on secret dockets; and, of course,
3. all names of judges who ordered such sealing of dockets.

After all, since it is Nassau County court dockets are hidden, such dockets may involve a lot of politicians, government officials and celebrities.

And, while I will not hold my breath as to discipline of such judges and such attorneys, it will be interesting to see how Nassau Courts and New York State Court Administration will be getting out of this mess.

Right now the New York State Court Administration - both the Chief Judge Janet DiFiore with her "Court Excellence" program, and the Chief Administrative Judge Lawrence Marks, pretended that they have no control over how the lower court judges administrate their court dockets. 

Even though they are chief administrators of the court setting policies on how to administer those same court dockets - and hiding many court cases obviously denotes a policy.

Count on "the honorable" courts in New York to:

1. do something illegal; and, when caught red-handed
2. try to hide it and have its personnel - an attorney no less, whose license is "regulated" by the courts - lie about it.

I bet Nassau County Clerk #JohnFerretti (in New York County Clerks are also the filing court clerks at County and Supreme Court trial levels) was told to zip his lips, or be thrown under the bus, his license and livelihood and all.

I will continue to cover this story.

Stay tuned.

100% of reprisal cases in federal pilot whistleblower protection program was decided against whistleblowers. Matches 98% cases decided against whistleblower attorneys

The Whistleblower blog featured a report to U.S. Congress of a "complete failure" of a "pilot" whistleblower protection program for federal government contractors.

Here is the report to Congress.

The report indicates that 100% of reprisal cases against whistleblowers heard by the "pilot program" (44 out of 44) were decided AGAINST whistleblowers, so there is no whistleblower protection, even in a program that was specifically created and designed to provide such protection.

The number, 100%, matches, with only a slight deviation, the number in cases of discipline against attorneys who criticized judges - according to attorney Paul Ogden of Indiana, who did the research, such cases were decided against whistleblower attorneys in 98% of cases.

So, as Judge Andrew Napolitano said before in his book I keep coming back to,

The numbers are disheartening.

And, while the U.S. Congress reviews the report and prepares to take action on it, it should also take action on all whistleblower reprisals by the government in the country - and especially on reprisals against attorney whistleblowers, which prevents effective access of the public to impartial judicial review.

Delaware County (NY) Sheriff's Department violates Freedom of Information Law - as a matter of policy

Delaware County (NY) is well-known for stalling or stonewalling FOIL requests.

My very first FOIL was fulfilled by the County only after I complained to the NYS Committee on Open Government many years ago, and the Committee interfered.

Yet, Delaware County did not learn its lessons and continues to violate FOIL, now under its new Acting County Attorney Amy Merklen.

Here is the webpage of the County's Sheriff's Department stating conditions of access to records under FOIL.

The conditions violate FOIL in two areas:

1. Fees, and
2. a policy of blocking release of public records during the pendency of a criminal proceeding.

FOIL fees and ways to get public records under FOIL other than through paper copies

Here is what Delaware County Sheriff's Department charges in fees for records on FOIL requests:

Under FOIL, Public Officers Law 87, an agency can only assess a 25 cent per page fee if they are giving PAPER copies.

There are THREE OTHER ways to get FOILed records, for free.

1. If people ask for scanned copies, they get the records for free, if the agency has a scanner that help the agency scan records as fast as the agency can produce copies.  Of course, the County at this time is stalling my demand to certify that they do not have an inventory of scanning equipment, but I assure FOIL inquirers with the County that I have seen a fast-speed scanner in the County Department of Social Services with my own eyes, and, unless it has been stolen or sold since then (and I FOILed the County about the movement of printing, scanning and copying equipment, too), it should still be there, so the County cannot pretend it has nothing to scan records for purposes of FOIL requests.
2. People can come and review ORIGINALS of records on site, during business hours of the agency.  No fee should be charged for that.
3. People can bring their own copier or scanner to the agency and make their own copies or scans with their own equipment from the originals of public records.  No fee should be charged for that.  Any smart phone or tablet can take pretty good pictures of records, and there is also such a technological wonder as wand scanners with wifi and large expandable memory - available in stores, as far as I know, under $100.

Delaware County Sheriff's Department, does not post these options for people seeking records on FOIL, it only posts options for which the Department can charge money - which is a fraudulent practice.

Moreover, the Department has no authority to charge $10 for photos and $26 for CDs.

CDs cost cents and a page of a photo should be charged the same way as any other page of the record - at 25 cents apiece.

So, these are also fraudulent business practices, but why am I not surprised.

Records "in regards to criminal cases" during pendency of criminal proceedings

 Delaware County Sheriff's Department boldly announces on its FOIL page that it will stall FOIL requests for records "in regards to criminal cases that are currently pending in court" until the court case is finally decided.

That is an illegal policy.

There is a presumption of disclosure in Freedom of Information Law, and an agency can only deny access to records based on a provision that is in that statute.

Of course, the Delaware County Sheriff's Department did not cite to any statutory provision for its policy of denying access to public records "in regards to" a pending criminal case until the criminal case concludes.

The Sheriff CAN deny access to records in connection with a criminal case in response to a FOIL request if:

1. such disclosure will interfere with a criminal investigation - but a court case is STARTED only when the investigation is FINISHED, so that section does not apply; or if
2. such disclosure will interfere with judicial administration, with a pending court case - that reason must be stated each time, in response to each specific FOIL request, with a specific explanation as to how request for specific records in a specific FOIL request would interfere with a specific criminal case.  This exemption is not a blanket policy exemption allowing denial of access to records "in regards" to any pending criminal case.

There are, of course, records that cannot be disclosed during the pendency - or even after conclusion - of a criminal case.

Those are:

1. materials of the grand jury proceedings;
2. documents subject to attorney-client privilege (here, the attorney is the prosecutor, and the "client" is, presumably, the police);
3. documents pertaining to trial strategy (correspondence regarding the trial between the District Attorney and the Sheriff);
4. possibly, but not necessarily, list of witnesses to be called at trial;
5. records disclosing the identity of witnesses who are confidential informants;
6. investigative techniques of law enforcement which, if disclosed, will thwart future investigations or jeopardize lives;
7. medical or mental health records of a detained criminal defendant.

But, that's about all.

In other words, there are SOME records "in regards to" a pending criminal case that are not subject to disclosure under FOIL.

And, the presumption of disclosure still applies to records sought under FOIL, even if they are "related to litigation".

The Committee on Open Government issued an advisory opinion on that same topic, citing to some New York Court of Appeals cases on the subject:

I've put in a scan from that advisory opinion, and repeat it with the quote in a larger font:

QUOTE:

=======

First, as stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency:

"Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)].

Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR). 

Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.)

Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns.

While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL.

Access to records under CPLR depends on status and need.

With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

UNQUOTE:

========

CPLR 31 is the statute governing, in New York State, discovery in civil proceedings.

Discovery in criminal proceedings is governed by a different statute, but the applicability is the same.

Discovery is a right RESTRICTED to:

1. status of the person in the court proceeding;
2. need for disclosure;
3. legitimacy of disclosure;
4. relevance to the pending court case.

NONE of these restrictions apply to FOIL.

Instead, under FOIL, there is:

1. a presumption of disclosure;
2. for any purpose, legitimate or not;
3. by any person, party to a pending litigation or not, local resident or not, American citizen or not, located within the U.S. or not;
4. for any need, and without restriction to its "relevance" (as the Sheriff's Department said - "in regards to") whatever issue or whichever court case, pending or concluded.

Yet, the Delaware County Sheriff's Department, and the Acting County Attorney Amy Merklen representing the Sheriff's Department, appear to be blissfully unaware of the applicable law, and the Department claims that ALL records  "in regards to" a pending criminal case are not subject to disclosure - which is simply not true.

Neither the Sheriff, not the Acting County Attorney have legislative power to re-write the Freedom of Information Law.  And, their invented restrictions on FOIL requests in criminal cases are unlawful.

The Delaware County must, as a matter of law, state as to each and every FOIL request seeking records "in regards to" a pending criminal case:

• presume disclosure, and,
• if the Sheriff's Department seeks to deny access to record,
• state clearly and specifically:
• the statute under which the exemption applies; and
• explain why that statutory exemption applies in this particular situation -

not announce, as a matter of policy, that it will simply will not release ANY records "in regards to" a criminal case until it ends.

That is unlawful.

But - count on Delaware County and its law enforcement department to do unlawful things, residents of Delaware County should be long used to that.

Or - should they be?

New York Department of Corrections and Community Supervision violates Freedom of Information Law

New York Department of Corrections and Community Supervision, same as any other New York agency, is subject to Freedom of Information Law (FOIL).

The recognizes that on its own website - kind of:

Why "kind of"?

Because the Department violates 2 provisions of FOIL by:

1. requesting too much contact information about the inquirer (FOIL is subject to requests by "persons", and all information that an agency may request is to ascertain that the person inquiring is a "person" and not a computer robot, and as to where to send the requested information.  New York DOCCS, instead, demands to know:
1. your first name;
2. your last name
3. your e-mail address - which will be already sufficient for information to be provided, but no, NYS DOCCS further requires
4. your "street address" (not P.O. Box!), city, state and zip code.
2. restricting FOIL requests to "175 words or less" - there is no such restriction in the law.

Of course, these restrictions can be completely avoided by filing FOIL requests by e-mail - then you will be disclosing only your name (if at all, e-mails can be registered under a nickname) and your e-mail address, nothing else, when making a FOIL request.

Here is the e-mail address of NYS Department of Corrections and Community Service to send FOIL to:

DOCCSFOILUnit@doccs.ny.gov

NYS DOCCS not only is playing games in how FOIL requests can be made, but is also playing games in answering FOIL requests.

I am currently engaged in lively correspondence with NYS DOCCS regarding an extremely interesting case which I will publicize a little later.

At this time, I am sending an administrative appeal of denial of my FOIL request to NYS DOCCS, with copies to other entities which may be interested in the subject of that particular FOIL request.

As I said above, I will publicize the case that is subject to my administrative appeal in a separate blog later.

Stay tuned.