Case 1:15-cv-02627-JG-RLM Document 23 Filed 01/04/16 Page 1 of 33 PageID #: 392

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK



LOUIS FLORES,






Plaintiff,



v.



UNITED STATES DEPARTMENT OF
15-CV-2627 (JG)(RLM)
JUSTICE,





Defendant.






PLAINTIFFS DISPUTE OF AND ANSWER TO
DEFENDANTS LOCAL CIVIL RULE 56.1 STATEMENT



Pursuant to Rule 56.1 of the Local Civil Rules of the U.S. District Court for New
Yorks southern and eastern districts, Plaintiff Louis Flores (Plaintiff or Flores)
disputes statements made by Defendant U.S. Department of Justice (the DOJ or the
Government) that there are no genuine issues to be tried and, instead, makes those
disputes known herein and sets forth additional statements of material facts, numbered
to answer Defendants Statement, with additional statements, as follows:
A.

Plaintiffs Request for Information and FOIA Request

1.

Plaintiff does not contest this statement, other than to specify that the

Assistant U.S. Attorney in question is Angela George (George). (Singh Decl., Ex. N at 1).
(Flores Decl., Ex. F). The related e-mail exchange has been filed in the docket of this case.
(Dkt. No. 12, Ex. I of Ex. C).
2.

Plaintiff disputes this statement, by pointing out that :

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a.

In the March 27, 2013 e-mail (the First E-mail Request),

Plaintiff requested information about :

(i).

Why the DOJ was making the prosecution of activists a

priority, and what was the DOJ trying to achieve by the prosecution of
activists, including Lt. Choi ;

(ii).

Why the DOJ would not refer to Lt. Daniel Choi (Lt.

Choi) by his U.S. military service rank ; and

(iii).

Asking for the disclosure of the cumulative cost of the

Governments prosecution of Lt. Choi, which, collectively became a

framework of questions that later became the foundation of the FOIA
request dated 30 April 2013 (the First FOIA Request). (Dkt. No. 12,
Ex. A to Ex. I of Ex. C).
b.

The DOJ never answered the three requests in the First E-Mail

Request. (Dkt. No. 15 31).

3.

Plaintiff disputes this statement ; the U.S. Attorneys Office in the

District of Columbia was not solely in charge of the prosecution of Lt. Choi, since law
enforcement arrested Lt. Choi and George and/or other prosecutors prosecuted Lt. Choi
based on White House information sent by Brian Bond and other information and legal
analysis provided by other Executive Branch agencies, including, but not limited to, the
National Park Service and the U.S. Department of the Interior. (Flores Decl., Ex. HH (the
White House email), Ex. G at Tab B (the Capt. Guddemis November 22 email), and Ex.
G at Tab A (the Myers memo (email))).
4.

Plaintiff does not contest this statement, except to add :

a.

The DOJ never answered the April 10, 2013 e-mail (the

Second E-mail Request). (Dkt. No. 15 32).

b.

The related e-mail exchange has been filed in the docket of this

case. (Dkt. No. 12, Ex. I of Ex. C).

5.

Plaintiff does not contest this statement. The related e-mail exchange

has been filed in the docket of this case. (Dkt. No. 12, Ex. I of Ex. C).
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6.

Plaintiff does not contest this statement.

7.

Plaintiff contests this statement, noting that the address used by

Plaintiff to address the First FOIA Request was provided to Plaintiff by the DOJ, that
William Miller was the Public Information Officer (Miller), and that Miller wrote to
Plaintiff that the Executive Office for United States Attorneys (the EOUSA) will respond
to your request directly (emphasis added). (Dkt. No. 12, Ex. D to Ex. I of Ex. C).
a.

Prior to the filing of this action, the EOUSA never responded to

the First FOIA Request directly to Flores. (Dkt. No. 15 50).

8

Plaintiff contests this statement, since Plaintiff made several requests

for information, as follows :

a.

All records and information pertaining to the legal basis of

prosecuting activists, who engage in protests, including, but not limited, to

records and information regarding :

(i)

what kind of activists may be targeted for prosecution,

how many activists have been targeted for prosecution, what are the
names of such activists, and which Department of Justice officials
approved of such prosecution of activists ;

(ii)

whether the nature and purpose of prosecution of

activists may be aggressive, selective, or involve overreach, and which

Department of Justice officials approve of such nature and purpose of
prosecution of activists ;

(iii)

limits, rules, procedures, or other guidelines that must

or should be taken into consideration before, during, and after the

prosecution of activists to mimimise the interference with First
Amendment rights, other Constitutional rights, civil liberties, and other
civil rights of activists ;

(iv)

consideration of other circumstances, conditions, and

restrictions that form any part of the decision to target activists for
prosecution ; and, if such considerations exist, under what
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circumstances, under what conditions, and subject to what

restrictions ;

(v)

any

and

all

agency,

executive,

judicial,

or

congressional reports, memoranda, records, and information, which

provide any description of the process for the determination as to
whether activists can be targeted for prosecution ; and

(vi)

whether agencies other than the Department of

Justice may target activists for prosecution, and, if so, under what
circumstances, under what conditions, and subject to what
restrictions ; and which agency officials approve of such prosecution of
activists.
b.

All records and information created on or after Nov. 12, 2010,

pertaining to the legal basis for the arrest and/or prosecution of Lt. Choi,
including, but not limited to, records and information regarding :

(i)

whether the prosecution of Lt. Choi was part of any

Department of Justices process to target activists ; and

(ii)

the limits of the Department of Justices prosecution

to mimimise the interference with First Amendment, other

Constitutional rights, civil liberties, and other civil rights of Lt. Choi.
c.

All records and information created on or after Nov. 12, 2010,

pertaining to the legal basis for the Department of Justice or U.S. Attorneys
Office to fail to refer to Lt. Choi by his military rank, in accordance with Army
Regulation 670-1.
d.

The total cost of the prosecution of Lt. Choi, including, but not

limited to :

(i)

any and all records and information created on or

after Nov. 12, 2010, pertaining to the cost of arresting and/or

prosecuting Lt. Choi, including, but not limited to, records and
information regarding :
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8.1

(A)
any and all agency, executive, judicial, or
congressional reports, memoranda, records, and information,
which indicate, calculate, or analyze the budged and actual cost
of the prosecution of Lt. Choi ;

(B)
any and all records of the cost of staff costs,
staff benefits, travel, transcripts, accommodations, meals, nonattorney investigation costs, research costs, other investigation
costs, and all other costs on the prosecution of Lt. Choi ;

(C)
any and all records of the costs of fact and
expert witnesses in connection with the prosecution of Lt.
Choi ;

(D)
any and all records of assistance provided by
other law enforcement agencies in connection with the
prosecution of Lt. Choi ; and

(E)
any and all records of hours worked, paid or
unpaid overtime hours, and other information about personnel
hours worked in connection with the prosecution of Lt. Choi.
(Dkt. No. 15 34). (Dkt. No. 12, Ex. I of Ex. C).

Defendant has either wilfully ignored some of requests in the First FOIA

Request, provided partial responses to some, and wilfully withheld records without
either an explanation or a Vaughn Index, despite requests for clarification and a Vaugh
Index made by Plaintiff, for some requests, as set forth below :
a.

The DOJ has not fully answered this the First FOIA Request, as

follows :

(i)

In respect of request I.1.A., the DOJ has not provided

an accounting, as set forth below :

(A)
not identified what kind of activists may be
targeted for prosecution,

(B)
not identified how many activists have been
targeted for prosecution,

(C)
activists, and

(D)
not identified which Department of Justice
officials approved of such prosecution of activists ;

not identified what are the names of such

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(ii)

In respect of request I.1.B., the DOJ has not provided

an accounting or any information as to :

(A)
whether the nature and purpose of
prosecution of activists may be aggressive, selective, or involve
overreach, and

(B)
which Department of Justice officials approve
of such nature and purpose of prosecution of activists ;

(iii)

In respect of request I.1.C., the DOJ has claimed it did a

search, but the DOJ has not provided the information about the limits,
rules, procedures, or other guidelines that must or should be taken into
consideration before, during, and after the prosecution of activists to
mimimise the interference with First Amendment rights, other
Constitutional rights, civil liberties, and other civil rights of activists ;

(iv)

In respect of request I.1.D., the DOJ has not provided

an accounting or any information about :

(A)
the consideration of other circumstances,
conditions, and restrictions that form any part of the decision
to target activists for prosecution ; and

(B)
if such considerations exist, under what
circumstances, under what conditions, and subject to what
restrictions [could activists be prosecuted] ;

(v)

In respect of request I.1.E., the DOJ has not provided

an accounting or any agency, executive, judicial, or congressional

reports, memoranda, records, and information, which provide any
description of the process for the determination as to whether activists
can be targeted for prosecution, and the DOJs wilful decision to not
coperate makes it difficult for Plaintiff and this Court to know whether
the DOJ has provided all of these records ; and

(vi)

In respect of request I.1.F., the DOJ has not identified

whether agencies other than the Department of Justice may target

activists for prosecution, and, if so, under what circumstances, under
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what conditions, and subject to what restrictions ; and which agency

officials approve of such prosecution of activists, and the DOJs wilful
decision to not coperate makes it difficult for Plaintiff and this Court to
know how much information the DOJ is deliberately withholding.
b.

In respect of request I.2., the DOJ has not provided all of the

records and information created on or after Nov. 12, 2010, pertaining to the
legal basis for the arrest and/or prosecution of Lt. Choi, including, but not
limited to, records and information regarding :

(i)

The DOJ has not provided records that identify

whether the prosecution of Lt. Choi was part of any Department of

Justices process to target activists, in accordance with request I.2.A. ;
and

(ii)

The DOJ has claimed it did a search, but the DOJ not

provided records that identify the limits of the Department of Justices

prosecution to mimimise the interference with First Amendment, other
Constitutional rights, civil liberties, and other civil rights of Lt. Choi, in
accordance with request I.2.B., except that :

(iii)

The DOJ has :

(A)
created a red herring when it released a
partial copy of the pleading file in the Governments
prosecution case against Lt. Choi (the First FOIA Release or
the Red Herring Release) that referenced many documents
but that which were missing from the Red Herring Response
(Flores Decl., Ex. F);

(B)
The Red Herring Release contained
references to the kinds of documents that Plaintiff had been
seeking, but the DOJ deliberately withheld such documents
that were answerable to the First FOIA Request (Plaintiffs
Index to the First FOIA Response) (Dkt. No. 12, Ex. B) ;

(C)
The cover letter from the DOJ, dated 19
August 2015, acknowledged the existence of Nonpublic
records pertaining to a third party that the DOJ was
deliberately withholding (Flores Decl., Ex. F at 1) (the
Exempted Records); and
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(D)
The DOJ declined to produce the Nonpublic
Records in accordance to the Privacy Act, 5 U.S.C. 552a.
(Flores Decl., Ex. F at 1). The exemption, under the Privacy Act,
5 U.S.C. 552a, is the only time in the action before this Court
that the DOJ has cited an exemption under FOIA to explain a
withholding of records.

(E)
The DOJ, in the cover letter transmitting the
Red Herring Response, did not make a line-item accounting of
each item requested in the First FOIA Request. (Flores Decl.,
Ex. F at 1-2).

c.

In respect of request I.3., the DOJ has claimed it did a search,

but the DOJ has not provided records and information created on or after Nov.
12, 2010, pertaining to the legal basis for the Department of Justice or U.S.
Attorneys Office to fail to refer to Lt. Choi by his military rank, in accordance
with Army Regulation 670-1.
d.

In respect of request I.4., the DOJ has claimed it did a search,

but the DOJ has not provided records and information about the total cost of the
prosecution of Lt. Choi, including, but not limited to :

(i)

any and all records and information, in accordance

with request I.4.A., created on or after Nov. 12, 2010, pertaining to the
cost of arresting and/or prosecuting Lt. Choi, including, but not limited
to, records and information regarding :

(A)
any and all agency, executive, judicial, or
congressional reports, memoranda, records, and information,
which indicate, calculate, or analyze the budged and actual cost
of the prosecution of Lt. Choi, in accordance with request
I.4.A.a. ;

(B)
any and all records of the cost of staff costs,
staff benefits, travel, transcripts, accommodations, meals, nonattorney investigation costs, research costs, other investigation
costs, and all other costs on the prosecution of Lt. Choi, in
accordance with request I.4.A.b. ;

(C)
any and all records of the costs of fact and
expert witnesses in connection with the prosecution of Lt.
Choi, in accordance with request I.4.A.c. ;

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(D)
any and all records of assistance provided by
other law enforcement agencies in connection with the
prosecution of Lt. Choi, in accordance with request I.4.A.d. ;
and

(E)
any and all records of hours worked, paid or
unpaid overtime hours, and other information about personnel
hours worked in connection with the prosecution of Lt. Choi, in
accordance with request I.4.A.e., except that :

(F)
The DOJ has informed Plaintiff that the DOJ
cannot segregate costs for the prosecution of Lt. Choi from the
prosecution of other activists. (Kelly Decl., 21-24), and

(G)
Despite Plaintiffs request that Plaintiff will
accept all of the costs of the prosecution of activists that
include the cost of the prosecution of Lt. Choi, Defendant has
not disclosed such costs. (Flores Decl., Ex. I at 1h)

e.

The DOJ has not provided an index requested by Plaintiff of the

privacy-encumbered records withheld by the DOJ. (Dkt. 12, Ex. A, B at 46).

(Flores Decl., Ex. I at 4j(i)-(ii)).
9.

Plaintiff objects to this statement. Plaintiff made eighteen (18) requests

in four categories of documents and records in the First FOIA Request. The four
categories can be summarised as : (i) All the records and information pertaining to the
legal basis of prosecuting activists, who are engaged in protests (Dkt. No. 15 34a) ; (ii)
All the records and information created on or after Nov. 12, 2010, pertaining to the legal
basis for the arrest and/or prosecution of Lt. Choi (Dkt. No. 15 34b) ; (iii) All records
and information created on or after Nov. 12, 2010, pertaining to the legal basis for the
Department of Justice or U.S. Attorneys Office to fail to refer to Lt. Choi by his military
rank (Dkt. No. 15 34c) ; and (iv) The total cost of the prosecution of Lt. Choi (Dkt.
No. 15 34d). (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1 Answer 8a(i)-(vi), 8b(i)-(ii), 8c,
and 8d(i)(A)-(E).
10.

Plaintiff contests this statement, because Defendants statement at 10

contradicts Defendants statement at 9.

a.

Plaintiff contests this statement, because the First FOIA

Requested included six sub-categories, and these categories are submitted in the
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record of the proceedings before this Court. (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1
Answer 8a(i)-(vi)).
b.

Plaintiff contests this statement, because the First FOIA

Requested included two sub-categories, and these categories are submitted in

the record of the proceedings before this Court. (Dkt. No. 12, Ex. I of Ex. C). (PL
56.1 Answer 8b(i)-(ii)).
c.

Plaintiff does not contest this statement, except to note that

Plaintiffs request is submitted in the record of the proceedings before this

Court. (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1 Answer 8c).
d.

Plaintiff contests this statement, because the First FOIA

Requested included five sub-categories, and these categories are submitted in

the record of the proceedings before this Court. (Dkt. No. 12, Ex. I of Ex. C). (PL
56.1 Answer 8d(i)(A)-(E)).
11.

Plaintiff does not contest this statement, except to add :

a.

Plaintiff further notes that Plaintiff was told on 5 June 2013 by

DOJ paralegal Sanjay Sola (Sola) that Sonya Whitaker (Whitaker) would
determine whether Plaintiffs request for expedited processing would be
approved. Plaintiff never received any response from Whitaker about his
request for expedited processing. (Dkt. 15 44-45).
b.

Plaintiff further notes that despite Solas promises to Plaintiff,

Plaintiff never received any determination about his fee waiver request being
denied by the DOJ. (Dkt. 15 46-47).
12.

Plaintiff notes further to Defendants statement that amongst the

individuals, who received the First FOIA Request, was George. (Flores Decl., Ex. JJ). (Dkt.
9 29). This fact was mentioned by Plaintiff at the Initial Conference.
a.

Plaintiff notes that Defendant changed its representation to the

Court that George received the First FOIA Request when it filed its Amended
Answer. (Dkt. 17 29).

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b.

Plaintiff notes that Plaintiffs change in its representation

before this Court contravenes information that Defendant gave to Plaintiff

during a Telephone Conference that took place on 16 October 2015, namely, that
George had a copy of the First FOIA Request all along.
13.

Plaintiff and this Court do not have any information about the log at the

EOUSA, because the DOJ has not produced any records about the log or about the original
request (Request No. 13-1506) or the appeal (Appeal No. AP-2014-00890). Since
records about the log are not in evidence, facts about the log are not available to the
Court and to Plaintiff. Plaintiff can only attest to being provided by Sola the request
number : 13-1506 that Sola informed Plaintiff the First FOIA Request had been assigned.
(Dkt. 15 44).
14.

Plaintiff disputes this statement, because the DOJ has not accounted for

how any of the DOJs activities described by Plaintiff in the Complaint are consistent with
the DOJs inability to locate a copy of the First FOIA Request. (Dkt. 1 39-61).
a.

All that is known is when the DOJ first filed its Answer in the

proceedings before this Court, the DOJ admitted that, Defendant has not yet
released any records that are responsive to Plaintiffs FOIA request at issue in
this action and has not yet provided an explanation to Plaintiff. (Dkt. 9 27).
b.

In its Answer filed with the Court, Defendant never invoked an

Exemption under FOIA as a reason why it never provided an explanation to

Plaintiff for why it had not yet released any records that are responsive to
Plaintiffs FOIA request. (Dkt. 9 27).
c.

In its Amended Answer filed with the Court, Defendant was

forced to change its excuse that the EOUSA could not find the request file to the
EOUSA did not have a copy of the First FOIA Request. (Dkt. No. 17 52).
15.

Plaintiff does not contest this statement.

16.

Plaintiff contests this statement, as the DOJ is implying that the

shorthand description of Willkie Farr & Gallagher LLP (Plaintiffs Counsel) in the 30
April 2013 letter to the Office of Information Policy (OIP) (the FOIA Appeal) for the
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nine-page First FOIA Request should somehow limit or restrict the 18 requests in four
categories of documents and records in the First FOIA Request. (Dkt. 15 34). (Dkt. No.
12, Ex. I of Ex. C). (PL 56.1 Answer 8a(i)-(vi), 8b(i)-(ii), 8c, and 8d(i)(A)-(E). (Flores
Decl., Ex. A).
a.

Plaintiff notes that in Plaintiffs Counsels FOIA Appeal

indicated that a copy of the First FOIA Request was enclosed : (the Request)
(Enclosed). (Flores Decl., Ex. A at 2).1
b.

Plaintiff further notes that Plaintiff approached the office of his

elected Congressional representative, U.S. Representative Joseph Crowley, who

wrote a letter dated 10 February 2014 on Plaintiffs behalf (the Congressional
Request), addressed to the EOUSA, asking the EOUSA to process the First FOIA
Request. (Dkt. No. 12 Ex. I to Ex. D). (Flores Decl., Ex. B).
c.

Plaintiff notes that the Government never answered the

Congressional Request. (Dkt. No. 15 49).

d.

Plaintiff submits Plaintiffs Counsels 19 March 2014 e-mail

report-back to Plaintiff in which Plaintiffs Counsel wrote that the DOJ was
transitioning their system from a paper format to an electronic format, which
has been causing some delay in processing, but that your request is being
processed, further noting that the First FOIA Request should be processed in
2-3 weeks, before concluding that, according to Plaintiffs Counsel, this meant
that someone may actually be looking at the First FOIA Request. (Flores Decl.,
Ex. C).
17.

Plaintiff contests this statement, because the communication that the

OIP sent to Plaintiffs Counsel did not state that the First FOIA Request was lost. The
letter, dated 20 May 2014 from the OIP to Plaintiffs Counsel (the OIP Response) noted
the remand of the First FOIA Request to the EOUSA. (Flores Decl., Ex. D at 1).

1

Although, in Plaintiffs copy of the e-mail, it does not appear that the First FOIA Request was
attached, Plaintiff notes that one of the lawyers at Plaintiffs Counsel was never asked to
provide a copy of the First FOIA Request. (Flores Decl., Ex. NN).

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a.

Attached to the OIP Response was an internal DOJ

memorandum, undated, to Susan Gerson, an assistant director at the EOUSA,

from Melanie Ann Pustay, a director of the DOJ (Pustay), and Sean R. ONeill,
the chief of Administrative Appeals Staff (ONeill) (the DOJ Remand Memo).
It was in the DOJ Remand Memo, and not in the OIP Response, where Pustay and
ONeill wrote that the EOUSA failed to locate the request file. Plaintiff notes that
the DOJ Remand Memo does not say that the EOUSA could not find the First
FOIA Request. The exact wording is : EOUSAs failure to locate the request
file. (Flores Decl., Ex. D at 2).
b.

The DOJ Remand Memo instructed EOUSA to please reopen

this request and conduct a search for responsive records, and send any
releasable records directly to the requester, subject to any applicable fees,
adding that the OIP attorney reviewing the FOIA Appeal was Whitaker, the same
person Sola informed Plaintiff would determine whether Plaintiffs request for
expedited processing would be approved. (Flores Decl., Ex. D at 2). (Dkt. 15
44-45).
c.

Plaintiff further notes that Plaintiffs Counsel informed Plaintiff

via e-mail dated 09 June 2014 (the Good News e-mail) that the OIP had sent
this back down to the EOUSA to conduct a search for, and produce, responsive
records. (Flores Decl., Ex. E).
d.

In the OIP Response, Plaintiffs Counsel was advised : If your

client is dissatisfied with my action on your appeal, the Freedom of Information

Act permits him to file a lawsuit in federal district court in accordance with 5
U.S.C. 552(a)4)(B). (Flores Decl., Ex. D at 1).
e.

At no time prior to Plaintiffs Counsels representation of

Plaintiff did the DOJ ever communicate to Plaintiff that the DOJ or the OIP had no
copy of the First FOIA Request or a request file for the First FOIA Request, and
at no time during Plaintiffs Counsels representation of Plaintiff did Plaintiffs

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Counsel inform Plaintiff that the DOJ or the OIP had no copy of the First FOIA
Request or a request file for the First FOIA Request. (Flores Decl., Ex. NN).
f.

The OIP never released records in response to the FOIA

Appeal. (Dkt. No. 1 53).

g.

Plaintiffs Counsel never explained to Plaintiff the OIPs failure

to ever release records in response to the First FOIA Request.

h.

The Court has never asked the DOJ to account for how the First

FOIA Request or the request file for the First FOIA Request was lost.
B.

C.

Plaintiff Initiates This Lawsuit

18.

Plaintiff does not contest this statement.

19.

Plaintiff does not contest this statement.

The Searches for Information Responsive to Plaintiffs FOIA Request

20.

Plaintiff contests this statement, because the DOJ does not indicate how

the DOJ obtained a copy of the First FOIA Request, and the DOJ does not account for all
the time that the DOJ failed to release any records that are responsive to Plaintiffs FOIA
request at issue in this action and had not yet provided an explanation to Plaintiff, as
of the filing of the DOJs Answer in this action. (Dkt. 9 27).
21.

Plaintiff has no information to verify this statement, except that Plaintiff

has objected to each of the form of the search conducted, limitations imposed by the DOJ
in the conduct of the searches, and the qualification of Karin Kelly, who conducted the
searches, in Plaintiffs letter to Defense Counsel, dated 26 October 2015 (the Plaintiffs
Due Diligence Letter). (Flores Decl., Ex. I at 1).
22.

Plaintiff has no information to verify this statement, except that Plaintiff

has objected to the Declaration of Karin Kelly on the basis that during a Telephone
Conference between Plaintiff and Defense Counsel on 16 October 2015 the Due
Diligence Telephone Conference), Defense Counsel had promised Plaintiff that the
search would be conducted for guidelines, protocols, procedures, but the Declaration of
Karin Kelly was silent about these descriptions of records. Amongst other complaints

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made by Plaintiff was that the Declaration of Karin Kelly mentioned the First FOIA
Request items I.1.C., I.2.B, item I.3, and item I.4. However, none of the other items were
individually addressed. Plaintiff requested a full clarification on an item-by-item basis of
the search results. (Flores Decl., Ex. I at 1b, 1i).
23.

Plaintiff contests this statement on the basis that the search was

defective, incomplete, and limited, as noted in Plaintiffs Due Diligence Letter, where
Plaintiff wrote that the search strings deliberately over-looked wording in the First FOIA
Request, particularly to references to First Amendment, other Constitutional rights, civil
libertied, and other civil rights of activists. (Flores Decl., Ex. I at 1g). Amongst the
documents included in the Second FOIA Response were copies of sections from the
United States Attorneys Manual applicable to demonstrations. (Flores Decl., Ex. G
at Tab D). See U.S. Dept of Justice, United States Attorneys Manual 9-65.880, .881,
.882. These records indicated that the DOJ can prosecute activists. The DOJ also
produced other records from the United States Attorneys Manual. (Flores Decl., Ex. G
at Tabs E and G). That the DOJ later produced responsive records using alternative
common sense search strings shows that the DOJs search for records that produced the
Red Herring Response was defective, incomplete, and unlawful.
24.

Plaintiff contests this statement on the basis that Plaintiff has

questioned the employment status of Karin Kelly. (Flores Decl., Ex. I at 1a). The other
DOJ employee providing a Declaration in this matter has only been employed by the DOJ
since April 2015, and Plaintiff has raised objections about why temp, junior, or new staff
were called to provide Declarations in this matter. (Flores Decl., Ex. I at 2a-2c).
25.

Plaintiff has no information about this statement other than to point

out that perhaps Ms. Kelly is seemingly admitting occupational ignorance.

1.

Search for Records Responsive to Items 1 and 2 of Plaintiffs FOIA Request

26.

Plaintiff objects to this statement, since, in the Declaration of Karin

Kelly, only items I.1.C and I.2.B. are individually listed for items 1 and 2 of the First FOIA
Request. There is no accounting for any of the other items. (Kelly Decl., 10-19).
(Dkt. 15 34). (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1 Answer 8a(i)-(vi), 8b(i)-(ii)).
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27.

Plaintiff has no information about this, except that Plaintiff has objected

to the form of the search. (Flores Decl., Ex. I at 1).

28.

Plaintiff has no information about this, except that Plaintiff has objected

to the form of the search. (Flores Decl., Ex. I at 1).

29.

Plaintiff objects to this statement, since Plaintiff has objected to the

search string used by Karin Kelly. Plaintiff has further objected to the DOJ searching for
terms, like targeted (because it was descriptive of the effect of the DOJs conduct and is
a loaded word, given that the DOJ would not be likely to make such voluntary
classification in its internal records that would reflect on its own misconduct), but not
for any of the laws that would govern the prosecution of activists, such as First
Amendment, other Constitutional rights, civil liberties, or other civil rights.
Furthermore, the DOJ located guidelines from the United States Attorneys Manual
applicable to demonstrations. (Flores Decl., Ex. G at Tab D). See U.S. Dept of Justice,
United States Attorneys Manual 9-65.880, .881, .882. The DOJ also produced other
records from the United States Attorneys Manual. (Flores Decl., Ex. G at Tabs E and G).
Yet, reasonable and applicable search terms, like demonstrations, were deliberately
omitted when the DOJ conducted is search of records that later begat the Red Herring
Response, because the search terms were limited to activists and targeted. (Kelly
Decl. 11, 17). Moreover, Plaintiff objected that the search was limited to certain, loaded
words ; only certain items in the First FOIA Request were specifically identified ; in all of
the Declaration of Karin Delly, the DOJ failed to address a search for each line item in the
First FOIA Request ; and Plaintff objected to attempts by the DOJ to deliberately create
obfuscation. (Flores Decl., Ex. I at 1g, 1i).
30.

Plaintiff objects to this statement. The DOJ is citing an e-mail that has

not been introduced into evidence, and Plaintiff notes that Karin Kelly quoted the
relevant portion of the First FOIA Request, but there is no documentation what that
portion is or was, triggering an objection by Plaintiff. (Flores Decl., Ex. I at 1e).
a.

Plaintiff further notes that the DOJ is referring to an incorrect

Reference Number for the First FOIA Request. The Karin Kelly Declaration
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refers to FOIA Request No. 2015-02422, but the OIP Response referred to FOIA
Request No. 2013-1506 and Appeal No. AP-2014-00890. (Kelly Decl., 5).
(Flores Decl., Ex. D at 1)
31.

Plaintiff objects to this statement, repeats his objection to the form of

the search, and repeats his objection to the reduction of the nine-pages of the First FOIA
Request to the two words, one of which, activist, is used without search strings for
synonyms or related laws that would govern the prosecution of activists, such as
demonstrations or First Amendment, other Constitutional rights, civil liberties, or
other civil rights, respectively ; and the other, targeted, which was descriptive of the
effect of the DOJs conduct and is a loaded word, given that the DOJ would not be likely to
make such voluntary classification in its internal records that would reflect on its own
misconduct. (Flores Decl., Ex. I at 1g).
32.

Plaintiff has no information about this, except that Plaintiff has objected

to the form of the search. (Flores Decl., Ex. I at 1).

33.

Plaintiff has no information about this, except that Plaintiff has objected

over and over again to the way that the DOJ has conducted the search. In this statement,
Karin Kelly explained the type of information being sought instead of just providing
the exact wording in the 18 requests in four categories of documents and records in the
First FOIA Request. (Flores Decl., Ex. I at 1). The DOJ rigged the search so as to conduct
no search at all.
34.

Plaintiff has no information about this.

35.

Plaintiff has no information about this.

36.

Plaintiff has no information about this, except to again assert that the

DOJ has been deliberately using obfuscation in order to prevent the release of records
fully responsive to the FOIA Request. (Flores Decl., Ex. I at 1g). Plaintiff provided
copious examples of activists being prosecuted for their activism in the First FOIA
Request. Yet, the DOJ deliberately chose not to search the records of those cases for
applicable laws or guidelines, revealing, again the DOJs effort to basically conduct no
search at all.
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37.

Plaintiff has no information about this.

38.

Plaintiff has no information about this, except that the Assistant U.S.

Attorney in question is George and that, given that George was the prosecutor, who tried
Lt. Choi, then she should have been able to provided guidance to Karin Kelly about what
words would have produced search results, for example, the use of the word
demonstrations or some of the laws under which activists would have been prosecuted
or which could have created records. (Flores Decl., Ex. I at 1g).
39.

Plaintiff objects to this statement, because it is not a fact. The

Government has a long, established history of targeting activists. That is what this FOIA
action has been trying to establish, and there are press reports about the Governments
activities to target activists. (Dkt. 15 17-24). Furthermore, since the DOJ has asked
George to provide testimony in this action, giving Plaintiff an opportunity to crossexamine her as a witness is only fair, and the Court needs to order limited discovery to
allow for a deposition of George.
39.1

Despite assurances from the Obama administration to the contrary,

activists have still been arrested for their activism.

a.

In remarks made on 24 November 2014, President Barack

Obama (President Obama) said that peaceful protests may occur, saying, in
relevant part, I also appeal to the law enforcement officials in Ferguson and the
region to show care and restraint in managing peaceful protests that may
occur.2 (Flores Decl., Ex. O).
b.

On 02 December 2014, then Attorney General Eric Holder

(Holder) was disrupted during the delivery of remarks in Atlanta, saying, in

response to the Ferguson activists, that social change is achieved through
activism, What we saw there was a genuine expression of concern and
involvement. And it is through that level of involvement, that level of concern

2

See Barack Obama, President Obama Delivers a Statement on the Ferguson Grand Jurys
Decision, White House (Nov. 24, 2014), https://www.whitehouse.gov/blog/2014/11/24/
president-obama-delivers-statement-ferguson-grand-jurys-decision.

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and I hope a level of perseverance and commitment, that change ultimately will
come.3 (Flores Decl., Ex. P).
c.

In contravention to the guidance provided by President Obama

and Holder, Ferguson activists were still arrested for peaceful activism outside
the federal courthouse in St. Louis, Missouri.4 (Flores Decl., Ex. Q).
39.2

In respect of the Federal Bureau of Inestigation (FBI) :

d.

According to The New York Times, the FBI once sent an

anonymous letter to the civil rights activist, the Rev. Dr. Martin Luther King, Jr.,
with the intention to drive him to commit suicide.5 (Flores Decl., Ex. R).
e.

According to Mother Jones, John Lennon, and his wife, Yoko

Ono, were going to face deportation hearings for having been cited by the FBI
for revolutionary activities.6 (Flores Decl., Ex. S).
39.3

Some activists hold demonstrations, and do not face criminal charges

for their demonstrations from local police, but they do face criminal charges from federal
police, as noted in a 2000 report of HIV/AIDS activists, who were arrested outside the
headquarters of the Republican National Committee, where it was noted, in relevant
part, that, [T]he protesters were to be charged with obstruction of passage on federal
grounds, a violation of D.C. law. They were not arrested on the steps of the RNC because
that area falls under the jurisdiction of the D.C. Metropolitan Police, who chose not to
take action .7 (Flores Decl., Ex. T)

3
4

See Holly Yan and Catherine E. Shoichet, Ferguson fallout : Protesters interrupt Holders
speech, CNN (Dec. 2, 2015), http://www.cnn.com/2014 /12/01/us/ferguson-up-to-speed/.
See Cristian Farias, #BlackLivesMatter Activists in St. Louis Charged With Disturbance On
Federal Property, The Huffington Post (Aug. 10, 2015), http://www.huffingtonpost.com/
entry/blacklivesmatters-st-louis-charges_55c93a8de4b0f1cbf1e61b8a.
See Beverly Gage, What an Uncensored Letter to M.L.K. Reveals, N.Y. Times (Nov. 11, 2014),
http://www.nytimes.com/2014/11/16/magazine/what-an-uncensored-letter-to-mlkreveals.html.
See AJ Vicens, Check Out This FBI Memo Citing John Lennon's "Revolutionary Activities,"
Mother Jones (Oct. 9, 2014), http://www.motherjones.com/politics/2014/10/fbi-memojohn-lennon-revolutionary-activities.
See AIDS/HIV : ACT UP Rallies Against Bush at RNC Headquarters, California Healthline (Oct;
17; 2000), http://www.californiahealthline.org/articles/2000/10/17/aidshiv--act-uprallies-against-bush-at-rnc-headquarters.

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39.4

A two-day protest by housing activists that took place outside the DOJ

resulted in almost 30 arrests, including complaints by activists that law enforcement

used tasers on activists. According to the report in Rolling Stone, it appeared that the
Federal Protective Service, part of the U.S. Department of Homeland Security, was the
law enforcement agency in charge.8 (Flores Decl., Ex. U).
39.5

Allegations have been made that the DOJ mounts vindictive

prosecution of activists, such as in the case of Lt. Choi.9 (Flores Decl., Ex. V).
39.6

As reported by The New York Times, the family of the late Internet

activist Aaron Swartz believed that the Government mounted criminal cases rife with
intimidation and prosecutorial overreach in respect of the late young Mr. Swartz, adding
that the Massachusetts U.S. Attorneys Office and others contributed to the death of the
young late Mr. Swartz.10 (Flores Decl., Ex. W).
a.

In 2013, U.S. Representative Darrell Issa, chair of the House

Oversight and Government Reform committee, and U.S. Represesentative Elijah

Cummings wrote a letter to the DOJ, demanding an explanation of the fervent
prosecution of the late Internet activist Aaron Swartz.11 (Flores Decl., Ex. X).

10

11

See John Knefel, Why Are Homeowners Being Jailed for Demanding Wall Street Prosecutions?,
Rolling Stone (May 22, 2013), http://www.rollingstone.com/politics/news/why-arehomeowners-being-jailed-for-demanding-wall-street-prosecutions-20130522.
See Scott Wooledge, Updated : Judge Allows Lt Dan Chois vindictive prosecution Defense,
Daily Kos (Aug. 31, 2011), http://www.dailykos.com/story/2011/08/31/1012290/Updated-Judge-Allows-Lt-Dan-Choi-s-vindictive-prosecution-Defense ; Lou Chibbaro Jr.,
Judge rules against Choi in vindictive prosecution claim, Washington Blade (Oct. 17, 2011),
http://www.washingtonblade.com/2011/10/17/judge-rules-against-choi-in-vindictiveprosecution-claim/.
See Noam Cohen, A Data Crusader, a Defendant and Now, a Cause, N.Y. Times, Jan. 14, 2003,
http://www.nytimes.com/2013/01/14/technology/aaron-swartz-a-data-crusader-andnow-a-cause.html.
See, e.g., Kim Zetter, Congress Demands Justice Department Explain Aaron Swartz Prosecution,
Wired (Jan. 29, 2013), http://www.wired.com/threatlevel/2013/01/doj-briefing-on-aaronswartz/ ; Marcy Wheeler, Aaron Swartz reveals the hypocrisy of our Justice Department, Salon
(Jan.
15,
2013),
http://www.salon.com/2013/01/16/
aaron_swartz_reveals_the_hypocrisy_of_our_justice_department/.

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39.7

The prosecution of some activists has provoked public outrage and calls

for legislative reform.12 (Flores Decl., Ex. Y).

39.8

In 2011, The Washington Post reported that the during the tenure of

U.S. Attorney Patrick Fitzgerald the Government conducted raids and searches as part of
a mysterious, ongoing nationwide terrorism investigation with an unusual target :
prominent peace activists and politically active labor organizers.13 (Flores Decl., Ex. Z).
39.9

HIV/AIDS activists complained in 2012 that now former U.S. Attorney

Ronald Machen held them to a different and unfair standard, such as bringing stricter
criminal charges, than other activists, who were arrested by local law enforcement for
different activism.14 (Flores Decl., Ex. AA).
40.

Plaintiff objects to this statement, because Plaintiff has made his

objection known to the DOJ that the search strings were incomplete and defective.
(Flores Decl., Ex. I at 1b, 1c, 1d, 1e, 1g). Plaintiff further notes that the First FOIA
Request included an item requesting the names of activists, who have been targeted for
prosecution. (Dkt. 15 34). (Dkt. No. 12, Ex. I of Ex. C). Furthermore, Plaintiff
conducted due diligence and identified examples of names activists prosecuted by the
government in the First FOIA Request, in the Complaint, and in Plaintiffs Index of
References to Records Requested under FOIA Request, a copy of which was provided to

12

13

14

See Tom Risen, Barrett Brown's Prison Time Raises Cybersecurity, Journalism Concerns, U.S.
News & World Report (Jan. 23, 2015), http://www.usnews.com/news/articles/
2015/01/23/barrett-browns-prison-time-raises-cybersecurity-journalism-concerns.
See Peter Wallsten, Activists cry foul over FBI probe, The Washington Post (June 13, 2011),
http://articles.washingtonpost.com/2011-06-13/politics/35235946_1_activists-crystephanie-weiner-targets ; Kevin Gosztola, FBI Continues to Target Activists in Chicago and
Minneapolis (VIDEO), Firedoglake (Dec. 9, 2010), http://my.firedoglake.com/kgosztola/
2010/12/09/fbi-continues-to-target-activists-in-chicago-and-minneapolis/ ; Josh Gerstein,
After 1 year, FBI returns property to Minnesota anti-war activists, Politico (Nov. 3, 2011),
http://www.politico.com/blogs/joshgerstein/1111/FBI_returns_property_to_Minnesota_
antiwar_activists.html.
See Arin Greenwood, HIV/AIDS Activists Complain Of Unfair Treatment By U.S. Attorney's
Office, The Huffington Post (Feb. 8, 2012), http://www.huffingtonpost.com/
2012/02/08/aids-activists-protest_n_1263144.html ; Brianne Carter, D.C. mayor Vincent
Gray, councilmembers arrested : Protesters plead not guilty, WJLA (May 5, 2011),
http://www.wjla.com/articles/2011/05/d-c-mayor-vincent-gray-councilmembersarrested-protesters-to-appear-in-court--60103.html ; Debbie Siegelbaum, AIDS activists
allege discriminatory treatment following Capitol arrest, The Hill (Feb. 8, 2011),
http://thehill.com/homenews/house/209485-aids-activists-allege-discriminatorytreatment-after-capitol-protest-arrest.

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Defendant at the Initial Conference, to make it easy for the DOJ to locate responsive
records. (Flores Decl., Ex. L). There is no indication that the DOJ searched for records
under all of these names for all of the DOJ guidelines. (Flores Decl., Ex. I at 1c).
40.1

Plaintiff also notes that, at the Initial Conference, Plaintiff requested

and was granted by the Court permission to amend the Complaint in this action to add
demands for remedies as a consequence of the bad faith acts and misrepresentations
made by the DOJ. (Dkt. No. 14 at 1).
40.2

Plaintiff also notes that, at the Initial Conference, the Hon. Magistrate

Judge Mann said that nothing precluded Plaintiff from having to file another FOIA
request to obtain responsive records from the DOJ.
41.

Plaintiff objects to this statement, because, as the record has shown, the

DOJ later produced records from the United States Attorneys Manual. (Flores Decl., Ex. G
at Tabs D, E, and G). Plaintiff is improbably asking this Court to believe that George does
not have a physical copy of the United States Attorneys Manual, or that she does not
have online access to the United States Attorneys Manual, which is available on the
Internet, particularly troubling since George has tried activists for their activism when
the Government has provided some guidelines to Plaintiff about the prosecution of
activists.
42.

Plaintiff does not object to this statement.

43.

Plaintiff objects to this statement. The DOJ forced an employee, who

had been employed only since April 2015 to provide one of the Declarations filed before
this Court. (Stone Decl.) Plaintiff has raised questions and expressed objections about
the qualifications of Karin Kelly. (Flores Decl., Ex. I at 1). Without more information
about Karin Kellys experience, the length of her tenure, and the status of her
employment (i.e., is she a temporary employee or a permanent employee), it is not
enough for the DOJ to make this statement.
a.

Plaintiff notes that of the ten items listed in I.1. and I.2. of the

First FOIA Request, the Government has only directly addressed items I.1.C. and
I.2.B. in Defendants 56.1 Statement. (Def.s 56.1 Stmt. at 26-43).
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2.

Search for Records Responsive to Item 3 of Plaintiffs FOIA Request

44.

Plaintiff objects to this statement, as it is not based on fact. The exact

wording of the request for item I.3. in the First FOIA Request is : All records and
information created on or after Nov. 12, 2010, pertaining to the legal basis for the
Department of Justice or U.S. Attorneys Office to fail to refer to Lt. Choi by his military
rank, in accordance with Army Regulation 670-1. The request in this item is for
records. (Dkt. 15 34c). (Dkt. No. 12, Ex. I of Ex. C).
45.

Plaintiff objects to this statement, as this statement is a matter of

opinion and is not based on fact. Plaintiff notes that Karin Kelly didnt even attempt to do
a search. (Kelly Decl. 20). Plaintiff further notes that Karin Kelly had been in
communication with George, and Karin Kelly could have asked George about item I.3.
(Kelly Decl. 37-38). Your Honor, either rules or guidelines exist that the DOJ follow about
the use of courtesy, official, or military titles in the Courts, or they do not exist.
3.

Search for Records Responsive to Item 4 of Plaintiffs FOIA Request

46.

Plaintiff has no information about this statement, other than Plaintiff

has raised questions about the restrictions of search strings and language by Karin Kelly
in the conduct of her searches. (Flores Decl., Ex. I at 1g).
a.

Plaintiff notes that item I.4 in the First FOIA Request contained

six sub-items. (Dkt. 15 34d). (Dkt. No. 12, Ex. I of Ex. C). However, Karin Kelly
does not specifically cite all of the records requests under item I.4. Instead,
Karin Kelly invented a new item 3 that does not appear on the First FOIA
Request and mislabled item I.4. as C. (Kelly Decl. 20).
47.

Plaintiff has no information about this statement.

48.

Plaintiff has no information about this statement.

49.

Plaintiff has no information about this statement.

50.

Plaintiff has no information about this statement.

51.

Plaintiff objects to this statement, because this statement was

manufactured to exclude the fact that cost records exist for all of the defendants, who
were arrested and charged for crimes related to their activism along with Lt. Choi. As
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requested by Plaintiff, the DOJ was asked to produce the cost records for all of the
defendants arrested on Monday, November 15, 2010, in the White House fence
demonstration to end the Governments discriminatory policy of Dont Ask, Dont Tell,
so that that way, the DOJ could disclose response records as a compromise. (Flores Decl.,
Ex. I at 1h).
52.

Plaintiff objects to this statement, as Plaintiff has objected to this

Declaration, and Plaintiff has offered to compromise with the DOJ, so that the DOJ could
release responsive records that would address the cost of the prosecution of activists,
who were charged with crimes along with Lt. Choi, negotiation efforts that were cut short
by the Courts rejection of Plaintffs request for more time to negotiate with the DOJ.
(Flores Decl., Ex. I at 1h). (Dkt. No. 19 at 2).
53.

Plaintiff has no information to confirm this statement.

4.

Search for Records Responsive to Item 4 of Plaintiffs FOIA Request

54.

Plaintiff has no information about this, and Plaintiff notes that, once

Plaintiff gave the names of activists, who were prosecuted for their activism, to the DOJ,
the DOJ was able to conduct a search for records. (Flores Decl., Ex. G).
55.

Plaintiff has no information about this, but Plaintiff notes that the DOJ

refuses to identify who was providing guidance, instruction, and direction to Karin Kelly
in the conduct of the searches for records responsive to the First FOIA Request, given
that Karin Kelly has not yet been employed for one year by the DOJ.
56.

Plaintiff notes that records were found in regards to the First FOIA

Request in the files of the USAO-DC, but the DOJ has yet to explain why no records were
ever located in the two years prior to the filing of this action. (Kelly Decl. 26-27). (Dkt.
9 27). Also, there is no documentation in the Declarations about how the search for the
paper files was conducted.
57.

Plaintiff notes that the DOJ has a list of records that can be produced

from the database system, but any list from that system has not been provided to
Plaintiff. (Kelly Decl. 28).

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58.

Plaintiff has not identified the EOUSA staff, who compiled the

documents for release. If that staff are comprised of DOJ management, senior
supervisors, or section chiefs, then the DOJ has ignored Plaintiffs request for a better or
umbrella Declaration to cover the Declarations being provided by junior or temp staff.
(Flores Decl., Ex. I at 2a-2c).
a.

Plaintiff raised numerous issues and requests for clarification

in respect of the Declaration of Princina Stone that the DOJ never answered in its
letter of 3 November 2015 (the Incomplete Due Diligence Response Letter).
(Flores Decl., Ex. I at 1-2). (Flores Decl., Ex. J).
D.

EOUSAs Response to Plaintiffs FOIA Request

59.

Plaintiff contests the statement that the DOJ made a response, since

the DOJ has admitted that the Red Herring Response was not responsive to the First FOIA
Request. (Flores Decl., Ex. F at 1). Plaintiff adds that prior to the production of the Red
Herring Release, Defense Counsel and Plaintiff participated in a Telephone Conference on
or about 26 August 2015 in which Defense Counsel informed Plaintiff that the DOJ
planned to file a motion for summary judgment as soon as the DOJ produced its response
to the First FOIA Request. During that call, and at no time prior to the production of the
Red Herring Response, did the DOJ ever ask Plaintiff for information to supplement,
clear-up, or explain the First FOIA Request, nor did the DOJ request from Plaintiff
proposed search strings with which to conduct it searches for responsive records.
60.

Plaintiff contests this statement, as the cover letter from the EOUSA

neither provided a line-item accounting for the conduct of the search, nor an explanation
for how the Red Herring Release was in response to any line items in the First FOIA
Request. (Flores Decl., Ex. F at 1-2).
a.

Plaintiff further objects to this statement, since it is not based

on fact, as it has been shown in proceedings before this Court that the DOJ
deliberately withheld the kinds of documents that were responsive to the FOIA
Request. (Flores Decl., Ex. L at 5-6). The Myers memo (email), Capt.
Guddemis November 22 email, and Governments Exhibits 24 and 25,
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identified in the records produced in the Red Herring Release, were responsive
to the First FOIA Request but were withheld by the DOJ after EOUSA staff
compiled for the Red Herring Release for release to Plaintiff. (Dkt. 12, Ex. B at
22-23, 27-28, 30, 33-34, 39.).
61.

Plaintiff contests this statement to the extent that the DOJ wrongly

claims that it can comply with FOIA in its discretion. (Def.s 56.1 Stmt. 61).
62.

Plaintiff objects to this statement, because Plaintiff has requested an

index of the privacy-encumbered records. (Dkt. No. 12, Ex. A at 2, B at 46). (Flores
Decl., Ex. I at 4j(i)-(ii)).
63.

Plaintiff objects to this statement, because Plaintiff has requested an

index of the privacy-encumbered records. (Dkt. No. 12, Ex. A at 2, B at 46). (Flores
Decl., Ex. I at 4j(i)-(ii)).
64.

Plaintiff does not contest the portion of this statement, where the DOJ

admits that the Red Herring Response was not responsive to the First FOIA Request.
Plaintiff does contest, however :
a.

Given that the DOJ deliberately withheld some documents,

particularly, the Myers memo (email), Capt. Guddemis November 22 email,

and Governments Exhibits 24 and 25, that would have been responsive to the
First FOIA Request, it is obvious that the search that produced the Red Herring
Response was not lawful. (Dkt. 12, Ex. B at 22-23, 27-28, 30, 33-34, 39.) Some
of the documents responsive to the First FOIA Request, but withheld by the DOJ,
were identified in Plaintiffs Index of the First FOIA Response. (Dkt. 12, Ex. B).
Plaintiff notes further that the EOUSA deliberately withheld records of
guidelines for the prosecution of activists noted in the United States Attorneys
Manual under sections application to demonstrations that were later printed
from the Internet. (Flores Decl., Ex. G at Tab D). See U.S. Dept of Justice, United
States Attorneys Manual 9-65.880, .881, .882.
65.

Plaintiff objects to this statement, because Defense Counsel instructed

Plaintiff during a Telephone Conference between the Parties on 01 September 2015 that
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all of the documents missing from the Red Herring Release must be collected by Plaintiff
at his time and expense from PACER, which Plaintiff would have to pay for. (Flores Decl.,
Ex. I at 4j(iii)). Plaintiff had previously raised this issue at the Initial Conference and
asked the Court to make a determination about the DOJs responsibility for providing
publicly-available documents in response to a FOIA request, but the Court made no such
determination in its Omnibus Order following the Initial Conference. (Dkt. 14). Even
though Plaintiff had not yet received the Second FOIA Response by the date of another
Telephone Conference between the Parties, this one taking place on 16 October 2015,
Plaintiff and Defense Counsel discussed the issues, generally. During that 16 October
2015 Telephone Conference, Defense Counsel declared that DOJ could comply with FOIA
at its discretion, an assertion to which Plaintiff objected. Plaintiff later reminded Defense
Counsel during that same 16 October 2015 Telephone Conference that Plaintiff would
ask the Court to make a determination about the DOJs obligations under FOIA in respect
of the documents missing from the Red Herring Response.
65.1

Plaintiff further notes that at the Initial Conference, the Hon. Magistrate

Judge Roanne Mann asked the DOJ whether records exist in response to the First FOIA
Request, or whether no records were found. Defense Counsel represented to the Court
at the Initial Conference that no responsive records were found in respect of the EOUSAs
search that produced the Red Herring Response.
E.

Plaintiffs Discovery Demands and Defendants Voluntary Responses Thereto

66.

Plaintiff does not contest this statement.

67.

Plaintiff does not contest this statement.

68.

Plaintiff does not contest this statement, except to add that other issues

were discussed at the Initial Conference, including, but not limited to, Plaintiffs request
that the Court make a determination about the DOJs obligations under FOIA to produce
the publicly-available records that the DOJ omitted from the Red Herring Release.
Plaintiff further notes that Plaintiff requested discovery in this case pursuant to the First
Amendment doctrine that judicial documents are public records.
69.

Plaintiff does not contest this statement.

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70.

Plaintiff does not contest this statement, except to note that the Courts

instruction was not to limit the DOJ to provide only at lease some of the documents
listed on Plaintiffs Index of References to Records Requested under FOIA Request;
rather, the provision of additional responsive documents by the DOJ might resolve or at
least narrow this FIOA lawsuit. (Dkt. 19 at 2). However, the DOJ left unanswered many
questions that required clarification, and Plaintiff was only conducting due diligence on
the few responsive records produced by the DOJ. (Flores Decl., Ex. I).
71.

Plaintiff does not contest this statement, except to clarify that the

period of conference was restricted to fifty-one (51) days, which was further restricted
to only seventeen (17) days, because the DOJ did not completely comply with the Courts
order to produce some records until 19 October 2015, when the Second FOIA Response
was received by Plaintiff, and the Court denied Plaintiffs request for an extension of time
to negotiate with the DOJ for the resolution of the due diligence questions raised by
Plaintiff. (Dkt. 14 at 2). (Dkt. 19 at 2). Furthermore, Defense Counsel had e-mailed to
Plaintiff the cover letter, dated 13 October 2015, from Defense Counsel without attaching
any of the responsive documents or Declarations. (Flores Decl., Ex. MM).
72.

Plaintiff does not contest this statement.

73.

Plaintiff does not contest this statement.

74.

Plaintiff does not contest this statement, except to add that Plaintiff has

noted acts by the DOJ during the proceedings before this Court constitute bad faith. (Dkt.
Nos. 7, 12, 18).
75.

Plaintiff no information about needing to add causes of action to the

Amended Complaint.
76.

Plaintiff does not contest this statement.

77.

Plaintiff does not contest this statement, except to note that the DOJ

amended many statements from its original Answer, changing the representations it was
making before this Court, changes that included amending its representation from
admitting that George had a copy of the First FOIA Request all along to disguising from
the Court this undisputed fact, for example. (Dkt. Nos. 9 29, 17 29). Furthermore,
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Plaintiffs April 30, 2013 e-mail, attached to which was a copy of the First FOIA Request,
was addressed to George, amongst many other individuals. (Flores Decl., Ex. JJ).
78.

Plaintiff does not contest this statement.

79.

Plaintiff contests this statement, because the Court asked the DOJ to

conduct this search. This can hardly be described to be being done voluntarily, when it
was written into the Courts Omnibus Order. (Dkt. No. 14 at 2).
80.

Plaintiff strongly contests this statement, because these documents

were responsive to the First FOIA Request. Furthermore, after Plaintiff reviewed these
documents for due diligence purposes and for purposes of completeness, Plaintiff
produced a letter raising due diligence questions and requests for clarification. (Flores
Decl., Ex. I).
a.

Amongst the records produced by the DOJ were guidelines for

the prosecution of activists, guidelines which originated from the United States
Attorneys Manual. (Singh Decl., Ex. K at 3).
81.

Plaintiff has no information to confirm this statement, and Plaintiff

notes that the Defense Counsel made a material misrepresentation to Plaintiff about the
DOJ components that had a Criminal Division, saying that there were no other
components at the DOJ with a Criminal Division other than the components that had
conducted searches pursuant to the First FOIA Request, a falsehood, since the Civil Rights
Division, a component that works to uphold the civil and constitutional rights of all
Americans, particularly some of the most vulnerable members of our society,15 also
contains a Criminal Division, prompting Plaintiff to file the Second FOIA Request to
ensure production of all responsive records to the First FOIA Request. (Flores Decl., Ex. I
at 4(m)(i) ; see also Attachment to Flores Decl., Ex. I). Plaintiff further notes that the
DOJ did not provide a Declaration for this search, and there is no description or
information provided to Plaintiff in the no records letter about how the search was
conducted, and who conducted the search.

15

See Civil Rights Division, About the Division, U.S. Department of Justice (Sept. 22, 2015),
http://www.justice.gov/crt/about-division.

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82.

Plaintiff contests this statement, since the information being sought and

questions being asked were for purposes of conducting due diligence and receiving
clarification and to achieve completeness from the DOJ in its response to the First FOIA
Request, which, for two years, was unanswered without explanation from the DOJ. (Dkt.
9 27). (Flores Decl., Ex. I).
83.

Plaintiff contests this statement, because the response was another

bad faith act by the DOJ to avoid providing clarification about its actions and its refusal to
fully provide all records responsive to the First FOIA Request. Perhaps only two out of
many, many questions were answered. (Flores Decl., Ex. J).
F.

The Governments Pattern and Practise of Violating FOIA

84.

In 2013, Mother Jones reported that filing a FOIA request and getting

information back is still a struggle.16 (Flores Decl., Ex. BB).

85.

In 2013, the leadership of the U.S. House of Representatives Committee

on Oversight and Government Reform sent a letter the OIP to focus attention on concerns
that included fees for accessing government records, backlogs of FOIA Requests, and the
misuse of exemptions (the Oversight Letter to the OIP).17 (Flores Decl., Ex. CC).
86.

A coalition of 49 groups supported the Oversight Letter to the OIP by

pressing the Government to honor its obligations under FOIA.18 (Flores Decl., Ex. DD).
87.

By the end of 2014, it was noted the number of court complaints

seeking to force the government to comply with FOIA has increased, noting that the top
defendant was the DOJ.19 (Flores Decl., Ex. EE).

16

17

18

19

See Erika Eichelberger, Most Transparent Administration Ever Is Still Not, Mother Jones
(Feb. 7, 2013), http://www.motherjones.com/mojo/2013/02/darrell-issa-elijah-cummingsfoia-transparency-department-of-justice.
See Darrell Issa & Elijah Cummings, Letter to Office of Information Policy, U.S. House of
Representatives
(Feb.
4,
2013),
http://oversight.house.gov/wpcontent/uploads/2013/02/2013-02-04-DEI-EEC-to-Pustay-re-FOIA.pdf.
See Jeff Plungis, National Press Club asks President Obama to fulfill FOIA promises, National
Press Club (Feb. 25, 2013), http://www.press.org/news-multimedia/news/national-pressclub-asks-president-obama-fulfill-foia-promises.
See Hadas Gold, NYT, Vice, Mother Jones top FOIA suits, Politico (Dec. 23, 2014),
http://www.politico.com/blogs/media/2014/12/nyt-vice-mother-jones-top-foia-suits200325.html.

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88.

In 2015, The Associated Press reported that, in respect of FOIA

requests, The government took longer to turn over files when it provided any, said more
regularly that it couldn't find documents and refused a record number of times to turn
over files quickly that might be especially newsworthy, (emphasis added), adding that in
nearly 1 in 3 cases, the Governments initial decisions to withhold or censor records
were improper under the lawbut only when it was challenged.20 (Flores Decl., Ex. FF).
89.

In 2015, the esteemed reporter Charlie Savage, who is employed by The

New York Times, noted on social media that some law enforcement agencies, particularly
the Federal Bureau of Investigation, deliberately omitted embarrassing documents from
FOIA responses, and, when caught, acted to further delay the disclosure of documents by
many months.21 (Flores Decl., Ex. GG).
90.

At the Initial Conference between the Parties on 16 September 2015,

Plaintiff pointed out to the Court that Defendant admitted in the Answer that the DOJ had
received a copy of Plaintiffs e-mail, dated 30 April 2013, attached to which was a copy of
the First FOIA Request. (Flores Decl., Ex. JJ). (Dkt. No. 9 4, 29 and Dkt. No. 12 at 2-3).
91.

Defense Counsel admitted during a Telephone Conference on

16 October 2015 that George had a copy of the First FOIA Request all along, and we know
from the Red Herring Response that George was the Assistant U.S. Attorney (AUSA)
assigned to prosecute Lt. Choi. (Flores Decl., Ex. F)
92.

The DOJ advised the entire Executive Branch of the federal government

against viewing the U.S. Senates torture report, even though the torture report was a
public document.22

20

21
22

See Ted Bridis, Administration sets record for withholding government files, The Associated
Press (Mar. 18, 2015), http://bigstory.ap.org/article/ab029d7c625149348143
a51ff61175c6/us-sets-new-record-denying-censoring-government-files.
See Charlie Savage, Twitter (Aug. 22, 2015), https://twitter.com/charlie_savage/
status/635067129205772292.
See Mike Masnick, DOJ Has Blocked Everyone In The Executive Branch From Reading The
Senates
Torture
Report,
Tech
Dirt
(Nov.
11,
2015),
https://www.techdirt.com/articles/20151110/01353532771/doj-has-blocked-everyoneexecutive-branch-reading-senates-torture-report.shtml.

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93.

Officials with the DOJ and members of the National Association of

Assistant United States Attorneys have lobbied federal legislators to oppose improved
FOIA reform legislation.23
G.

The Government Has Not Claimed Exemptions

94.

The Government has not specifically claimed Exemptions under FOIA

for any particular item or sub-item listed on the First FOIA Request. (Flores Decl., Ex. F, G,
H, J, N). (Kelly Decl.). (Stone Decl.).
95.

The Government has not specifically claimed Exemptions under FOIA

for any particular item or sub-item listed on the Second FOIA Request. (Flores Decl., Ex. J).
96.

When the Government produced the Second FOIA Response, the

Government did not specifically claim any Exemptions under FOIA for 1-45 on
Plaintiffs Index to the First FOIA Response. (Flores Decl., Ex. G).
97.

The Government has only specifically claimed an Exemption under

FOIA for 46 (the privacy-encumbered records of Lt. Choi, for which Plaintiff has
requested a Vaughn Index, yet to be produced by the DOJ) on Plaintiffs Index to the First
FOIA Response. (Dkt. No. 12, Ex. B).
98.

The Government has not specifically claimed Exemptions under FOIA

for any particular entry listed on Plaintiffs Index of References to Records Requested
under FOIA Request. (Flores Decl., Ex. G).
H.

Plaintiffs Activism Campaign

99.

Prior to the commencement of this action, Plaintiff had launched a

social media campaign to challenge the DOJs pattern and practice that systematically
refused to answer the First FOIA Request. See, e.g., Louis Flores, Twitter (Oct. 15, 2013,
4:42 PM EST), https://twitter.com/ maslowsneeds/status/390216209636925440
(attaching a link to a YouTube video, which had been uploaded on Oct. 15, 2013, that
explored whether individuals outside the DOJ had a role in ordering the arrest of Lt. Choi

23

See Nicholas Iovino, Justice Dept. Accused of Sabotaging FOIA, Courthouse News Service (Dec.
15,
2015),
http://www.courthousenews.com/2015/12/15/justice-dept-accused-ofsabotaging-foia.htm.

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for his activism and questioned whether the DOJ was targeting for vindictive prosecution
activists, who may have been engaged in pressure politics against the President in order
to bring about social change) ; Louis Flores, Twitter (Feb. 25, 2014, 4:24 PM EST),
https://twitter.com/ maslowsneeds/status/438424392977375232 (attaching a link to
another YouTube video, which had been uploaded on Dec. 4, 2013, noting that speech
critical of government, for example, political speech, is a freedom guaranteed as a
protection in the First Amendment to the U.S. Constitution, adding that when the DOJ
does not honor FOIA requests, this failure acts to curtail free speech, because the failure
denies citizens information about the governments conduct, consequently preventing
citizens from meaningfully forming informed speech, from meaningfully assembling to
discuss the governments conduct, and to petition their government for a redress of
grievances) ; and Louis Flores, Twitter (Sept. 25, 2014, 11:15 AM EST),
https://twitter.com/ maslowsneeds/status/515157736821358592 (noting the Sept. 17,
2014, protest against Holder).

Respectfully submitted,

Dated : Jackson Heights, New York

January 4, 2016

___________________________________
Louis Flores
34-21 77th Street, Apt. 406
Jackson Heights, NY 11372
Phone : (646) 400-1168
louisflores@louisflores.com
Pro Se Plaintiff

TO :

[By ECF and e-mail to : rukhsanah.singh@usdoj.gov]

Rukhsanah L. Singh, Assistant U.S. Attorney

U.S. Attorneys Office - Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
Attorney for Defendant

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