Professional Documents
Culture Documents
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.
a.
(i).
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.
(iii).
The DOJ never answered the three requests in the First E-Mail
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.
The DOJ never answered the April 10, 2013 e-mail (the
The related e-mail exchange has been filed in the docket of this
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).
- 2 -
6.
7.
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.
(i)
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)
(iii)
(iv)
restrictions that form any part of the decision to target activists for
prosecution ; and, if such considerations exist, under what
- 3 -
(v)
any
and
all
agency,
executive,
judicial,
or
(vi)
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.
pertaining to the legal basis for the arrest and/or prosecution of Lt. Choi,
including, but not limited to, records and information regarding :
(i)
(ii)
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)
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)
(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 ;
- 5 -
(ii)
(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)
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)
(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)
(vi)
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)
(ii)
The DOJ has claimed it did a search, but the DOJ not
(iii)
(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.
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.
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)
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. ;
- 8 -
(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.
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.
Requested included six sub-categories, and these categories are submitted in the
- 9 -
record of the proceedings before this Court. (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1
Answer 8a(i)-(vi)).
b.
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 never received any determination about his fee waiver request being
denied by the DOJ. (Dkt. 15 46-47).
12.
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.
Court that George received the First FOIA Request when it filed its Amended
Answer. (Dkt. 17 29).
- 10 -
b.
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.
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.
16.
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
- 11 -
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.
indicated that a copy of the First FOIA Request was enclosed : (the Request)
(Enclosed). (Flores Decl., Ex. A at 2).1
b.
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.
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).
- 12 -
a.
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.
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.
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
- 13 -
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 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.
19.
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.
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.
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
- 14 -
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.
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.
26.
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)).
- 15 -
27.
Plaintiff has no information about this, except that Plaintiff has objected
Plaintiff has no information about this, except that Plaintiff has objected
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.
Reference Number for the First FOIA Request. The Karin Kelly Declaration
- 16 -
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.
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
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.
35.
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.
- 17 -
37.
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.
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
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.
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.
- 18 -
and I hope a level of perseverance and commitment, that change ultimately will
come.3 (Flores Decl., Ex. P).
c.
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
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.
Ono, were going to face deportation hearings for having been cited by the FBI
for revolutionary activities.6 (Flores Decl., Ex. S).
39.3
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.
- 19 -
39.4
A two-day protest by housing activists that took place outside the DOJ
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.
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/.
- 20 -
39.7
The prosecution of some activists has provoked public outrage and calls
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
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.
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.
- 21 -
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
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.
43.
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).
- 22 -
2.
44.
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.
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.
46.
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.
48.
49.
50.
51.
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.
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.
4.
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).
- 24 -
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.
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.
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.
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,
- 25 -
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.
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.
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.
Plaintiff during a Telephone Conference between the Parties on 01 September 2015 that
- 26 -
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.
66.
67.
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.
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.
73.
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.
Amended Complaint.
76.
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,
- 28 -
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.
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.
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.
the prosecution of activists, guidelines which originated from the United States
Attorneys Manual. (Singh Decl., Ex. K at 3).
81.
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.
- 29 -
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.
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.
84.
In 2013, Mother Jones reported that filing a FOIA request and getting
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.
pressing the Government to honor its obligations under FOIA.18 (Flores Decl., Ex. DD).
87.
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.
- 30 -
88.
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.
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.
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.
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.
- 31 -
93.
Assistant United States Attorneys have lobbied federal legislators to oppose improved
FOIA reform legislation.23
G.
94.
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.
for any particular item or sub-item listed on the Second FOIA Request. (Flores Decl., Ex. J).
96.
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.
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.
for any particular entry listed on Plaintiffs Index of References to Records Requested
under FOIA Request. (Flores Decl., Ex. G).
H.
99.
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.
- 32 -
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,
___________________________________
Louis Flores
34-21 77th Street, Apt. 406
Jackson Heights, NY 11372
Phone : (646) 400-1168
louisflores@louisflores.com
Pro Se Plaintiff
TO :
- 33 -