2016-01-05 Plaintiff's Opposition To DOJ's Motion For Summary Judgement - Brief (Flores V Doj) (Foia) (Stamped)

Case 1:15-cv-02627-JG-RLM Document 24-1 Filed 01/05/16 Page 1 of 47 PageID #: 427
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LOUIS FLORES,

Plaintiff,

v.

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

Defendant.

MEMORANDUM IN SUPORT OF
PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND
IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

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

TABLE OF CONTENTS

Table of Authorities .......................................................................................................................................... ii
Introduction ......................................................................................................................................................... 1
Factual Background .......................................................................................................................................... 1
Argument .............................................................................................................................................................. 8
I. FOIA : Standard of Review on Summary Judgment. .................................................................. 8
II. The First Amendment .......................................................................................................................... 11
III. The Governments Responses Are Unlawful, Because It Has Officially
Acknowledged the Information Plaintiff Seeks, the DOJ May Not
Lawfully Withhold its Working Law, and the Searches Were Unlawful. ................. 11
A. The Governments Glomar-equivalent Response and No Number,
No List Response are Unlawful, Because the DOJ Has Officially
Acknowledged the Information Plaintiff Seeks. ......................................................... 12
B. DOJ May Not Lawfully Withhold Records Intepreting or Describing its
Guidelines on the Prosecution of Activists, Because Those Records
are the Agencys Working Law. ..................................................................................... 20
C. DOJs Searches Were Inadequate. ....................................................................................... 25
D. The Court Should Permit Plaintiff Limited Discovery to Establish Facts
as Necessary, or Should Order the Government to Cure its Inadequate
Declarations, Provide Declarations By Experienced Declarants, and to
Produce a Vaughn Index. ...................................................................................................... 37
Conclusion .......................................................................................................................................................... 41

- i -

TABLE OF AUTHORITIES

Cases
ACLU v. U.S. Dept of Def., 389 F. Supp. 2d 547, 561 (S.D.N.Y. 2005). ......................................... 14
ACLU, 389 F. Supp. 2d at 566 ...................................................................................................................... 16
Am. Immigration Council v. Dept of Homeland Sec., 905 F. Supp. 2d 206, 218 (D.D.C.
2012) ............................................................................................................................................................... 23
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) ........................................................ 9
Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004). .................................................................... 14, 16, 18
Bloomberg v. Bd. Of Governors of the Fed. Reserve System, 601 F.3d 143, 147 (2d Cir.
2010). .............................................................................................................................................................. 12
Boyd v. U.S. Dept of Justice, 475 F.3d 381, 389 (D.C. Cir. 2007) ................................................... 17
Brenan Ctr. For Justice v. DOJ, 697 F. 3d 184, 195-6, 199-202 (2d Cir. 2012) 20, 22, 23, 24
Carney v. U.S. Dept of Justice, 19 F.3d 807, 812 (2d Cir. 1994). .................................... 11, 42, 44
Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) ............ 23, 24
Davis v. DHS, No. 11-CV-0203, 2013, WL 3288418 (E.D.N.Y. June 27, 2013)(Ross, J.) . passim
Elec. Frontier Foundation v. Office of the Director of Natl Intelligence, 542 F. Supp. 2d
1181, 1186 (N.D.Cal. 2008) .................................................................................................................... 10
Elec. Privacy Information Center v. Dept of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006)10
Families for Freedom v. U.S. Customs and Border Prot., 837 F. Supp. 2d. 331, 335-37
(S.D.N.Y. 2011) ............................................................................................................................................. 43
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) ...................................................................... 17
Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982) ....................................................................... 15
Globe Newspaper v. Superior Court, 457 U.S. 596 (1982) ............................................................... 12
Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) .............................................................................. 32
Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) .......................................................................... 15
Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997). ....................... 9, 20
Holy Spirit Assn v. CIA, 636 F.2d 838, 846 (D.C. Cir. 1980) ........................................................... 16
Jefferson v. U.S. Dept of Justice, 284 F.3d 172, 178-179 (D.C. Cir. 2002) ................................. 16
Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994) ..................................................................................... 44
Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182, 186 (D.D.C. 2008) ................... 16
King v. U.S. Dept of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987) ................................................... 11
Larson v. U.S. Dept of State, 565 F.3d 857, 864 (D.C. Cir. 2009). ................................................. 11
Natl Assn of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) ................................... 9
Near v. Minnesota, 283 U.S. 697 (1931) ................................................................................................. 44
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) ................................................ 9, 21
Nova Cas. Co. v. Liberty Mut. Ins. Co., 540 F. Supp. 2d 476, 481 (S.D.N.Y. 2008) ..................... 9
Nuclear Control Inst. v. U.S. Nuclear Regulatory Commn, 563 F. Supp. 768, 772 (D.D.C.
1983) ............................................................................................................................................................... 17
Porter v. DOJ, 717 F.2d 787, 791-93 (3d Cir. 1983) .......................................................................... 42
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) .......................................................... 12
Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 875 (D.C. Cir. 2010). ....................................................... 23
Pub. Citizen, Inc. v. Rubber Mfrs. Assn, 533 F.3d 810, 813 (D.C. Cir. 2008 ................................. 9
Richmond Newspapers, Inc. v. Virgina, 448 U.S. 555 (1980) ......................................................... 12
- ii -

Roth v. U.S. Dept of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) ...................................... 14, 16
Schaffer v. Kissinger, 505 F.2d 389, 391 (D.C. Cir. 1974) ................................................................ 43
Schrecker v. Dept of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002) ............................................. 42
Schrecker v. Dept of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), affd 349 F.3d 657 (D.C.
Cir. 2003) ......................................................................................................................................................... 5
Senate of P.R. v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987) ........................................................ 15, 27
Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) ........................................................... 22, 23
Tax Analysts v. IRS, 152 F. Supp. 2d 1, 25-26 (D.D.C. 2001) .......................................................... 16
U.S. Dept of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989) ...................................... 10, 11
United States v. Erie Cnty., 763 F.3d 235, 239 (2d Cir. 2014) ............................................... 13, 27
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) .................................................................................. 13
Wash. Post Co. v. U.S. Dept of State, 840 F.2d 26, 28 (D.C. Cir. 1988) ........................................ 42
Wilner v. Natl Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009) ................................................... 13, 14
Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) ........................................................................... 14, 17
Statutes
28 U.S.C. 1331 ................................................................................................................................................ 11
5 U.S.C. 552 .................................................................................................................................... 1, 9, 10, 21
5 U.S.C. 552(b) ............................................................................................................................................... 24
Other Authorities
Anthony Lewis, A Public Right to Know About Public Institutions : The First Amendment
as Sword, 1980 Sup. Ct. Rev. 1. .............................................................................................................. 11
Phillip J. Cooper, Rusty Pipes : The Rust Decision and the Supreme Courts Free Flow
Theory of the First Amendment, 6 Notre Dame J.L. Ethics & Pub. Poly 359 (1992) ...... 11
Rules
Fed. R. Civ. P. 56 ....................................................................................................................................... 27, 42
Fed. R. Civ. P. 56(a) ........................................................................................................................................... 9
Fed. R. Civ. P. 56(c)(4) ................................................................................................................................... 41
Fed. R. Civ. P. 56(d) ................................................................................................................................. 11, 38
Regulations
22 C.F.R. 171 ..................................................................................................................................................... 2
28 C.F.R. 16 ....................................................................................................................................................... 2
28 eCFR 16.3(b) .................................................................................................................................... 29, 38
28 eCFR 16.9 .................................................................................................................................................. 36
32 C.F.R. 286 ..................................................................................................................................................... 2
Constitutional Provisions
U.S. Const. amend. I. ................................................................................................................................... 1, 11

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INTRODUCTION
This action was brought by Plaintiff Louis Flores (Plaintiff of Flores) against
Defendant United States Department of Justice (DOJ or the Government) to compel
compliance with the Freedom of Information Act, 5 U.S.C. 552 (FOIA) and the First
Amendment, U.S. Const. amend. I., for injunctive and other appropriate relief, seeking
the immediate processing and release of agency records requested by Plaintiff pursuant
to a FOIA request, dated 30 April 2013 (the First FOIA Request). During proceedings
before this Court, Plaintiff filed another FOIA request, dated 20 October 2015 (the
Second FOIA Request, and, collectively with the First FOIA Request, the Free Speech
FOIA Requests). The Government has acknowledged the existence of records by virtue
of the fact that agency guidelines indicate that the agency can prosecute activists. The
Government appears to be refusing to acknowledge the existence of records and
invoking a No Number, No List response to avoid its statutory obligations to release
records.
FACTUAL BACKGROUND
Prior to this action and during proceedings before this Court, the DOJ has been
violating FOIA with impunity, and many disputes of material facts exist. (PL 56.1
Answer). (Flores Decl.) (PLs Rule 52 Cross Motion). This action commenced to seek
under FOIA and the First Amendment the expedited processing and release, in respect
of the First FOIA Request, of DOJ agency records regarding the Governments
prosecution of activists, including of Lt. Daniel Choi, an international civil rights activist,
who was discharged from the U.S. armed services under the militarys former
discriminatory policy, Dont Ask, Dont Tell (Lt. Choi). (Dkt. No. 1). The First FOIA
Request was physically received and signed for by an agent of the DOJ on 06 May 2013.
(Dkt. No. 12 at Ex. II to Ex. C). (Flores Decl., Ex. OO). As a courtesy, Plaintiff e-mailed the
First FOIA Request to DOJ officials on 30 April 2013. (Flores Decl., Ex. JJ). On 01 May
2013, a DOJ official acknowledged receipt by return e-mail to Plaintiff of Plaintiffs 30
April 2013 e-mail transmitting the First FOIA Request. (Flores Decl., Ex. RR). The First

FOIA Request listed eighteen (18) requests in four categories : (i) All records and
information pertaining to the legal basis of prosecuting activists, who engage in
protests ; (ii) 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 ; (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, in accordance with Army Regulation 670-1 ; and (iv) The total cost of
the prosecution of Lt. Choi (Dkt. No. 12, Ex. A to Ex. I of Ex. C). (PL 56.1 Answer 8).
In violation of the FOIA and its own regulations, including the Presidents FOIA
Memorandum and the Attorney General's FOIA Guidelines, the DOJ failed to process
Plaintiffs First FOIA Request on an expedited basis, or within ten (10) calendar days, as
was requested. See 5 U.S.C. 552(a)(6)(E)(ii)(I) ; 22 C.F.R. 171.12(b) ;
28 C.F.R. 16.5(d)(4) ; 32 C.F.R. 286.4(d)(3) ; 32 C.F.R. 1900.21(d). The DOJ didnt
even process the First FOIA Request within the twenty (20) business-day time frame for
processing a standard FOIA request not entitled to expedited treatment. (Flores Decl.,
Ex. A at 2-3).
Before the commencement of this action, Plaintiff made many attempts to
pressure the DOJ to comply with FOIA and answer the First FOIA Request. Plaintiffs
attempted to negotiate with Government officials Sanjay Sola (Sola) and Sonya
Whitaker (Whitaker) for the release of responsive records under Request No. 131506. (PL 56.1 Answer 11a-b, 13, 17b). Plaintiff launched an activist campaign that
included a letter writing campaign that featured the Hon. United States Representative
Joseph Crowley asking the DOJ to process Plaintiffs First FOIA Request (the
Congressional Request). (Dkt. No. 12, Ex. I to Ex. D). (Flores Decl., Ex. B). (PL 56.1
Answer 16b-c). For a period of time, Plaintiff was represented by counsel, Willkie
Farr & Gallagher LLP (Plaintiffs Counsel), which filed an appeal with the Office of
Information Policy (the OIP) (Appeal No. AP-2014-00890) (the FOIA Appeal).
(Flores Decl., Ex. A at 2). (PL 56.1 Answer 16). As a result of the FOIA Appeal, the
OIP remanded to the Executive Office for United States Attorneys (the EOUSA) an
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instruction to reopen the request file and process the First FOIA Request (the OIP
Remand Memo). (Flores Decl., Ex. A at 3). According to the OIP Remand Memo, the
EOUSA claimed that it could not locate the request file for the First FOIA Request.
(Flores Decl., Ex. A at 3). When Plaintiffs Counsel submitted the FOIA Appeal, the FOIA
Appeal indicated that a copy of the First FOIA Request was enclosed : (the Request)
(Enclosed). (Flores Decl., Ex. A at 2).1 After the DOJ never produced any records in
response to the FOIA Appeal, Plaintiff produced YouTube videos as part of his activism
campaign, and the YouTube videos were disseminated over social media, primarily over
Twitter. 2 (PL 56.1 Answer 99). In furtherance of Plaintiffs activism campaign,
Plaintiff even protested in front of former United States Attorney General Eric Holder
(Holder), asking that the DOJ process Plaintiffs First FOIA Request.3 (PL 56.1 Answer
99).
After Plaintiff commenced this action, Defendant filed an Answer, indicating
that Assistant U.S. Attorney Angela George (George) had a copy of the First FOIA
Request all along. (Dkt. Nos. 9 29, 17 29). (Flores Decl., Ex. JJ). (PL 56.1 Answer
91). Despite that George and other officials at the DOJ had copies of the First FOIA
Request all along, Plaintiff provided to Assistant U.S. Attorney Rukhsanah Singh

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).
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 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).
See Louis Flores, Twitter (Sept. 25, 2014, 11:15 AM EST), https://twitter.com/
maslowsneeds/status/515157736821358592 (noting the Sept. 17, 2014, protest against
Holder).
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(Defense Counsel) another copy of the First FOIA Request by cover letter dated 05 July
2015. (Dkt. No. 12, Ex. I of Ex. C). On 31 July 2015, Plaintiff and Defense Counsel
participated in a Telephone Conference during which Defense Counsel informed
Plaintiff that the DOJ was preparing a response to the First FOIA Request and that the
DOJ was planning to file a motion for summary judgment as soon as it answered the
First FOIA Request. (PL 56.1 Answer 59a). By cover letter dated 19 August 2015, the
Executive Office for United States Attorneys (the EOUSA) produced records in
response to the First FOIA Request (the First FOIA Response or Red Herring
Response). (Flores Decl., Ex. F).
After Plaintiff received the First FOIA Response, Plaintiff began to review the
First FOIA Response and sent a letter to Defense Counsel dated 26 August 2015,
objecting to the First FOIA Response, claiming that the DOJ had intentionally created a
red herring by providing incomplete pleadings in the Governments trial against
Lt. Choi, an indication of the DOJ acting in bad faith. (Dkt. No. 12 at Ex. A). Plaintiff and
Defense Counsel participated in a Telephone Conference on 01 September 2015, at
which time Plaintiff reiterated his objection to the Red Herring Response, noting that
Plaintiff was in the middle of completing an index of the First FOIA Response
(Plaintiffs Index to the First FOIA Response) and that Plaintiff was noting many
missing documents from the Red Herring Response. (PL 56.1 Answer 8.1b(iii)(A)).
(Dkt. No. 12 at Ex. B). Defense Counsel offered to provide a copy of one of the missing
documents, but Plaintiff objected to receiving the one missing document (referred to as
Tab J), because Defense Counsel said that Plaintiff would have to obtain the rest of the
missing records at his time and expense from PACER. (PL 56.1 Answer 65). (Dkt. No.
12 at 1 and Ex. B). Defense Counsel informed Plaintiff that the Government had made
the Red Herring Response at its discretion, which was later represented in documents
submitted to the Court. (Stone Decl., 8).
Plaintiff objected to Defense Counsels wrongful assertion that Plaintiff would
have to collect the documents missing from the Red Herring Response from PACER.
(Dkt. No. 12 at 1). Plaintiff then wrote a letter to the Court, amongst other reasons,
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asking to conduct discovery, because there had not been an adequate search for records
(Plaintiffs Letter Motion for Discovery). (Dkt. No. 12 at 2, Ex. B).4 In Plaintiffs Letter
Motion for Discovery, Plaintiff noted in Plaintiffs Index to the First FOIA Request that
there were references to the kinds of records that Plaintiff had been seeking, but that
the DOJ had intentionally withheld. (Dkt. No. 12 at Ex. B). Plaintiff noted for the Court
that the DOJs intention was to divert attention away from the true documents and
records being sought under the First FOIA Request. (Dkt. No. 12 at 1).
The first sub-item under request 1 of the First FOIA Request asked for records
that would identify : 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.
(Dkt. No. 12 at Ex. I to Ex. C). (PL 56.1 Answer 8a(i)). Since the DOJ had said it had not
found any responsive records to the First FOIA Request, Plaintiff hoped that, by
providing examples of names of activists, who had been prosecuted for their activism, it
would make it easier for the DOJ to locate and produce these records. (PL 56.1 Answer
40). Before the Initial Conference between the Parties and the Hon. U.S. District Court
Magistrate Judge Roanne Mann, Plaintiff performed due diligence and produced an
index of the kinds of records that Plaintiff had been seeking (Plaintiffs Index of
References to Records Requested under FOIA Request). (PL 56.1 Answer 40). At the
Initial Conference, Plaintiff served Defense Counsel with a copy of Plaintiffs Index of
References to Records Requested under FOIA Request. (PL 56.1 Answer 40). (Flores
Decl., Ex. L).
At the Initial Conference and in the subsequent Omnibus Order, the Court
recommended that the DOJ conduct searches for some of the records on Plaintiffs Index
of References to Records Requested under FOIA Request. (Dkt. No. 12). At the Initial
Conference, Plaintiff objected to acts of bad faith committed by the DOJ and requested

4
Under FOIA, discovery is appropriate when an agency has not undertaken an adequate
search for records. Schrecker v. Dept of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), affd
349 F.3d 657 (D.C. Cir. 2003).
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the Courts permission to amend the Complaint to include demands for sanctions and
penalties. (PL 56.1 Answer 40.1). (Dkt. No. 12). The Court granted Plaintiffs request
to amend the Complaint. (Dkt. No. 14 at 1). On 23 September 2015, Plaintiff filed an
Amended Complaint, demanding that the Court appoint a monitor to conduct or verify
the search for responsive records, order the conduct of in camera reviews of records,
and/or impose sanctions and penalties, including fines, against the Defendant to compel
compliance with FOIA and to deter each of future acts of bad faith and future violations
of FOIA. (Dkt. 15 at 30).
On 16 October 2015, Plaintiff and Defense Counsel participated in another
Telephone Conference to discuss the DOJs forthcoming response to Plaintiffs Index of
References to Records Requested under FOIA Request, as promised by a cover letter,
dated 13 October 2015, from Defense Counsel to Plaintiff (the Second FOIA Response).
(Flores Decl., Ex. G). (PL 56.1 Answer 22). To stall for time, Defense Counsel had emailed the cover letter for the Second FOIA Response without attaching any of the
responsive documents or Declarations. (PL 56.1 Answer 71). Although Plaintiff had
not yet received the records constituting the Second FOIA Response, the Parties
attempted to discuss the outstanding records without Plaintiff having the benefit of
reviewing any responsive documents or Declarations. (PL 56.1 Answer 65).
During the 16 October 2015 Telephone Conference, Plaintiff made objections to
many issues, including to Defense Counsels wrongful assertion that the DOJ can comply
with FOIA at its discretion. (PL 56.1 Answer 65). Plaintiff renewed his objection to
the bad faith act by the DOJ to produce the Red Herring Response and informed Defense
Counsel that Plaintiff planned to request that the Court make a determination as to the
DOJs obligations under FOIA in respect of the documents missing from the Red Herring
Response. (PL 56.1 Answer 65). Plaintiff asked Defense Counsel if any other
components of the DOJ had a Criminal Division, where possible records responsive to
the First FOIA Request could exist, and Defense Counsel answered in the negative. (PL
56.1 Answer 81). After the call was concluded, Plaintiff checked the DOJs Web site
and saw that the Civil Rights Division had a Criminal Division and that the Civil Rights
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Division is a component that works to uphold the civil and constitutional rights of all
Americans, particularly some of the most vulnerable members of our society.5 (PL 56.1
Answer 81). Because of each of the material misrepresentations made by Defense
Counsel and the Governments pattern and practise of violating FOIA until the
intervention by the Courts, Plaintiff had no choice but to prepare and file the Second
FOIA Request in an effort to close the loop on the records being sought by Plaintiff.
(PL 56.1 Answer 81). (Flores Decl., Attachment to Ex. I).
With only seventeen (17) days before the Parties were expected to file a Joint
Status Report with the Court, Plaintiff received on 19 October 2015 from Defense
Counsel the DOJs Second FOIA Response. (Flores Decl., Ex. G). A no records letter,
dated 15 October 2015 and signed by Defense Counsel, was provided to Plaintiff in lieu
of a Declaration or responsive records from Main Justice (the Third FOIA Response).
(Flores Decl., Ex. H). 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). Once Plaintiff received and
reviewed the Second FOIA Response, Plaintiff performed due diligence and prepared a
letter, dated 26 October 2015, that included several questions about the Second FOIA
Response (the Plaintiffs Due Diligence Letter). (Flores Decl., Ex. I). The DOJ
responded by letter, dated 03 November 2015, answering only two (2) questions
presented by Plaintiff (Defendants Incomplete Due Diligence Response). (Flores
Decl., Ex. J). In keeping with the DOJs pattern and practise of subverting FOIA, the DOJ
objected to Plaintiffs right to conduct due diligence and would neither agree to provide
to Plaintiff clarification about the few responsive records produced by the DOJ, to
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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negotiate with Plaintiff for outstanding records, nor to an extension of time to negotiate.
(Flores Decl., Ex. J). (Dkt. No. 18 at 3).
Attempts by Plaintiff to resolve outstanding issues with the DOJ were cut short
by the Memorandum and Order issued by the Court on 09 November 2015 (Dkt. No. 19).
ARGUMENT
The DOJ has not provided all of the records duly requested under FOIA for : the
prosecution of activists, the prosecution of Lt. Choi, the records about the use of titles in
courts, and the costs of the prosecution of Lt. Choi. For two years prior to the
commencement of this action and during proceedings before this very Court, the DOJ
has acted in bad faith. The DOJ has fabricated the misplacement of the request file for
the First FOIA Request. The DOJ has withheld records, redacted records without
explanation, made misrepresentations, filed at least one altered or incomplete
document into evidence, and withheld at least one Vaughn Index.
With only seventeen (17) days before the Parties were expected to file the Joint
Status Report with the Court, Plaintiff received the Second FOIA Response and was
expected to confer with a cunning and calculating Defendant with a history of
subverting FOIA with impunity. Plaintiff was forced to file a Second FOIA Request in an
attempt to compel a previously unknown component of the DOJ to produce responsive
records. With so much information lacking about the DOJs destruction or alteration of
records, its pattern and practise of violating FOIA with impunity, and its withholding of
responsive records, Plaintiff respectfully requests that the Court deny Defendants
Motion for Summary Judgment in its entirety and enter orders, as requested herein,
compelling the DOJ to comply with FOIA and ordering limited discovery.
I.
FOIA : Standard of Review on Summary Judgment.

Summary judgment is only warranted when no genuine dispute of material fact
exists and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
determining whether summary judgment is appropriate, all ambiguities and reasonable
- 8 -

inferences are resolved against the moving party. Nova Cas. Co. v. Liberty Mut. Ins. Co.,
540 F. Supp. 2d 476, 481 (S.D.N.Y. 2008). Thus, if there is any evidence in the record
from which a reasonable inference could be drawn in favor of the non-movant on a
material issue of fact, summary judgment is improper. See Hetchkop v. Woodlawn at
Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997).
Congress enacted FOIA to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed. NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978) (NLRB I). Although Congress enumerated nine exemptions from the
disclosure requirement, these limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act. Pub. Citizen, Inc. v. Rubber
Mfrs. Assn, 533 F.3d 810, 813 (D.C. Cir. 2008) (quoting Natl Assn of Home Builders v.
Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)). Accordingly, FOIAs exemptions are to be
narrowly construed. Id.
Typically, a FOIA Request must be processed within twenty business days. See
5 U.S.C. 552(a)(6)(A)(i) (2013). However, expedited processing is to be granted in
cases where either the failure to obtain requested records...could reasonably be
expected to pose an imminent threat to the life or physical safety of an individual, or
with respect to a request made by a person primarily engaged in disseminating
information there is an urgency to inform the public concerning actual or alleged
Federal Government activity. See 5 U.S.C. 552(a)(6)(E)(v) (2013). In these cases, an
agency must process the FOIA request as soon as practicable. See 5 U.S.C.
552(a)(6)(E)(iii) (2013). Where an agency fails to comply with the twenty-day
deadline applicable to a standard FOIA request, the agency presumptively also fails to
process an expedited request as soon as practicable. Elec. Frontier Foundation v. Office
of the Director of Natl Intelligence, 542 F. Supp. 2d 1181, 1186 (N.D.Cal. 2008), citing
Elec. Privacy Information Center v. Dept of Justice, 416 F. Supp. 2d 30, 39 (D.D.C. 2006).
Under FOIA, [t]he burden is on the agency to demonstrate, not the requester
to disprove, that the materials sought are not agency records or have not been
- 9 -

improperly withheld pursuant to FOIAs nine enumerated exemptions. U.S. Dept of
Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989) (internal quotations omitted) (Tax
Analysts I). FOIA requires agencies to promptly provide a response to requests for
documents, duly made, or to provide justification why the documents may be exempt
from production. See 5 U.S.C. 552 (2004). Under FOIA, the Government is also
obligated to release a general index of records of records which, because of the
nature of their subject matter, the agency determines have become or are likely to
become the subject of subsequent requests for substantially the same records.
See 5 U.S.C. 552(a)(2)(D), (E). Accordingly, a FOIA plaintiff is entitled to summary
judgment where the agency fails to justify its withholdings. Tax Analysts I, 492 U.S. 136
at 142 ; 5 U.S.C. 552(a)(4)(B). In supporting its withholding decisions, the agency
must provide reasonably detailed explanations why any withheld documents fall
within an exemption. Carney v. U.S. Dept of Justice, 19 F.3d 807, 812 (2d Cir. 1994).
The significance of agency affidavits in a FOIA case cannot be underestimated. As,
ordinarily, the agency alone possesses knowledge of the precise content of documents
withheld, the FOIA requester and the [C]ourt both must rely upon its representations
for an understanding of the material sought to be protected. King v. U.S. Dept of Justice,
830 F.2d 210, 218 (D.C. Cir. 1987). Affidavits submitted by a governmental agency in
justification for its exemption claims must therefore strive to correct, however,
imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA
litigation. Id. [C]onclusory affidavits that merely recite statutory standards, or are
overly vague or sweeping will not . . . carry the governments burden. Larson v. U.S.
Dept of State, 565 F.3d 857, 864 (D.C. Cir. 2009).
In dispositive motion practice, if a nonmovant shows that facts are unavailable
to the nonmovant, then the Court may : (1) defer considering the motion or deny it ;
(2) allow time to obtain affidavits or declarations or to take discovery ; or (3) issue any
other appropriate order. See Fed. R. Civ. P. 56(d). As a result, at summary judgment,
the burden is on the agency to show that its search was reasonable and to justify its
withholding of any requested records. Bloomberg v. Bd. Of Governors of the Fed. Reserve
- 10 -

System, 601 F.3d 143, 147 (2d Cir. 2010). Although courts accord agency affidavits a
presumption of good faith, they need to defer to those affidavits. See Id. Rather, the
Courts review the claimed withholding de novo, and [a]ll doubts [are] resolved in favor
of disclosure. Id.
II.
The First Amendment

This Court has original subject matter jurisdiction under 28 U.S.C. 1331, as
this matter arises under the Constitution, laws, or treaties of the United States.
The U.S. Supreme Court has established the right by a reporter or an ordinary
citizen to claim access to places like prisons, records, or channels of communication6
in respect of the judicial system, and in these cases, the U.S. Supreme Court has upheld
rights of access in a number of settings, including judicial proceedings.7 8 [O]ur
Constitution, and specifically the First Amendment to the Constitution ... protects the
publics right to have access to judicial documents. See United States v. Erie Cnty., 763
F.3d 235, 239 (2d Cir. 2014). See also U.S. Const. amend. I. The intention of the Free
Speech FOIA Requests is for Plaintiff to access judicial records that evidence the legal
basis of the Governments prosecution of activists.
III.
The Governments Responses Are Unlawful, Because It Has Officially

Acknowledged the Information Plaintiff Seeks, the DOJ May Not Lawfully
Withhold its Working Law, and the Searches Were Unlawful.
The Government has acknowledged procedures that likely have records about
the prosecution of activists, but the DOJ is unwilling to acknowledge the existence of
documents responsive to the Free Speech FOIA Requests, and the DOJ provided a No
Number, No List response for records it withheld from the Red Herring Response (the
Exempted Records). This kind of a response evokes a Glomar response, and it is not
appropriate here, because Plaintiff seeks judicial records under FOIA and the First
Amendment.

6
7
8
Anthony Lewis, A Public Right to Know About Public Institutions : The First Amendment as
Sword, 1980 Sup. Ct. Rev. 1.
See Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ; Globe Newspaper v. Superior
Court, 457 U.S. 596 (1982) ; Richmond Newspapers, Inc. v. Virgina, 448 U.S. 555 (1980).
Phillip J. Cooper, Rusty Pipes : The Rust Decision and the Supreme Courts Free Flow Theory
of the First Amendment, 6 Notre Dame J.L. Ethics & Pub. Poly 359 (1992).
- 11 -

A.
The Governments Glomar-equivalent Response and No Number,

No List Response are Unlawful, Because the DOJ Has Officially
Acknowledged the Information Plaintiff Seeks.
1.
Glomar and No Number, No List Responses are Permitted in

Exceptional Circumstances.
Normally, when responding to a FOIA request, the responding governmental

agency searches for responsive records, releases non-Exempt records, and then
provides a detailed justification for any withholding of individual records. See Vaughn v.
Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). In narrow circumstances, the government
may refuse to confirm or deny the existence of responsive records : where a FOIA
exemption would itself preclude . . . acknowledgment that the agency possesses or does
not possess records. Wilner v. Natl Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009)
(emphasis in original). Such a response is known as a Glomar response, after the
Hughes Glomar Explorer, an oceanic research vessel at issue in the case that established
the doctrine. Phillippi v. CIA (Phillippi I), 546 F.2d 1009 (D.C. Cir. 1976). In similarly
narrow circumstances, the government may acknowledge that it possesses responsive
records but refuse to provide a Vaughn index identifying, listing, or enumerating them if
doing so would reveal information protected by a FOIA exemption. This is known as a
No Number, No List response. See Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004).
[T]he danger of Glomar responses is that they encourage an unfortunate
tendency of government officials to over-classify information, frequently keeping secret
that which the public already knows, or that which is more embarrassing than
revelatory of intelligence sources or methods. ACLU v. U.S. Dept of Def., 389 F. Supp. 2d
547, 561 (S.D.N.Y. 2005). Because Glomar responses are an exception to the general
rule that agencies must acknowledge the existence of information responsive to a FOIA
request and provide specific, non-conclusory justifications for withholding that
information, they are permitted only when confirming or denying the existence of
records would itself cause harm cognizable under an FOIA exception. Roth v. U.S.
Dept of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (quoting Wolf v. CIA, 473 F.3d 370,
374 (D.C. Cir. 2007)) (internal quotation marks and citation omitted) ; see also Wilner,
- 12 -

592 F.3d at 68. In analyzing a Glomar response, courts apply the same burden and
standard of review applicable to traditional claims of exemption. Wilner, 592 F.3d at 68.
Yet, the instant case has nothing to do with a secretive nature of records that would
justify a Glomar response. Although Courts typically accord substantial weight to
government Declarations in secretive matters, like national security-related FOIA cases,
that deference is due only when the governments affidavits contain reasonable
specificity of detail rather than merely conclusory statements, and if they are not called
into question by contradictory evidence in the record . . . . Gardels v. CIA, 689 F.2d
1100, 1105 (D.C. Cir. 1982) (quoting Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)).
Here, there are no indications in the Declarations that the issues involved in the Free
Speech FOIA Requests have anything to do with a secretive nature of the records. In its
Answer filed with the Court, the DOJ 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. No. 9 27).
(PL 56.1 Answer 14b). Here, the Government has not claimed any Exemptions (other
than for the Exempted Records withheld from the Red Herring Response), and the DOJ
has waived its right to claim any Exemptions in respect of any records or clarifications
requested by Plaintiff.
Furthermore, the Court has already ruled in Plaintiffs favour, when the Court
ordered the DOJ to conduct a search of Main Justice and to produce at least some of the
records on Plaintiffs Index of References to Records Requested under the FOIA
Request. The Courts ruling in favour of Plaintiff carries significant weight. The Court
of Appeals for the District of Columbia has ruled that agencies [may] not make new
exemption claims to a district court after the judge has ruled in the other partys favor,
nor may they wait until appeal to raise additional claims of exemption or additional
rationales for the same claim. Senate of P.R. v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987)
(quoting Holy Spirit Assn v. CIA, 636 F.2d 838, 846 (D.C. Cir. 1980)). See also Tax
Analysts v. IRS, 152 F. Supp. 2d 1, 25-26 (D.D.C. 2001) (Tax Analysts III) (refusing to
revisit issue of attorney-client privilege, because the Court ruled on attorney-client
- 13 -

privilege issue in previous opinion), affd in pertinent part, revd in part, 294 F.3d 71
(D.C. Cir.).
Courts have rejected Glomar responses as unsubstantiated by government
affidavits and ordered the government to confirm or deny the existence of responsive
records. See Roth, 642 F.3d at 1181 (rejecting governments justifications for Glomar
response under law enforcement exemptions) ; Jefferson v. U.S. Dept of Justice, 284 F.3d
172, 178-179 (D.C. Cir. 2002) ; ACLU, 389 F. Supp. 2d at 566 (rejecting CIA Glomar
response as to one category of requested records because the fact of their existence was
not properly classified) ; Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182, 186
(D.D.C. 2008) (rejecting agencys Glomar response because its argument that
knowledge of the mere existence or absence of [records] poses a security risk does not
hold water).
No Number, No List responses are used in those narrow circumstances where
the details that would appear in a Vaughn index are protected by a FOIA exemption.
Bassiouni, 393 F.3d at 246. A No Number, No List response must be justified on the
record by the withholding agency to the same extent as a Glomar response and must be
tethered to a relevant FOIA exemption. However, the Free Speech FOIA Requests have
nothing to do with secretive matters, because Plaintiffs Free Speech FOIA Requests
pertain to judicial records. Nevetheless, the DOJs Glomar-equivalent response fails as a
matter of law, as does its No Number, No List response.
2.
Agencies Glomar and No Number, No List Responses Are

Unlawful When Information Has Been Officially and
Specifically Disclosed.
Courts have repeatedly held that a Glomar response is unlawful when the
existence of the records sought has already been officially acknowledged. Boyd v. U.S.
Dept of Justice, 475 F.3d 381, 389 (D.C. Cir. 2007) (rejecting agencies Glomar responses
as deficient because the agencies had already acknowledged the existence of records
about the subjects of the plaintiffs requests) ; Wolf, 473 F.3d at 378 ([W]hen
information has been officially acknowledged, its disclosure may be compelled even
- 14 -

over an agencys otherwise valid exemption claim.) ; Nuclear Control Inst. v. U.S. Nuclear
Regulatory Commn, 563 F. Supp. 768, 772 (D.D.C. 1983) (rejecting Glomar response
because the existence of the requested document had already been acknowledged by
the agency). A FOIA requester challenging a withholding on the basis of official
acknowledgment must satisfy three criteria:
First, the information requested must be as specific as the
information previously released. Second, the information requested
must match the information previously disclosed . . . . Third, . . . the
information requested must already have been made public through
an official and documented disclosure.
Wolf, 473 F.3d at 378 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990))
(ellipses in original).
No Number, No List responses are also defeated if the government has officially
acknowledged the existence or scope of responsive records, or has disclosed details
about the subject of the request. See Bassiouni, 392 F.3d at 246-47 (analyzing plaintiffs
claim of official acknowledgment and concluding that the government had not officially
disclosed information concealed by its No Number, No List response). 9
3.
Records Produced by the DOJ Prove that Responsive

Records Must Exist, and Government Officials Have Officially
Acknowledged that Activists Have a Right to Protest. Yet,
the DOJ Prosecutes Activists.
The records and information that the Government wants to keep secret in this
litigation are judical documents about the prosecution of activists. The first sub-item
under request 1 of the First FOIA Request asked for records that would identify : 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

9
Indeed, No Number, No List responses have been invoked (and upheld) only when the
governments disclosure of the quantity of records it holds will reveal what is actually a
secret. See, e.g., Bassiouni, 392 F.3d 244 (government sought to withhold information about
the depth of its interest in a DePaul Law School human rights professor); Jarvik v. CIA, 741
F. Supp. 2d 106 (D.D.C. 2010) (government sought to withhold information about the depth
of its interest in violence that occurred in Andijan, Uzbekistan in May 2005); Subh v. CIA,
760 F. Supp. 2d 66 (D.D.C. 2011) (government sought to withhold information about the
depth of its interest in an individual denied employment because of information in his FBI
and CIA files).
- 15 -

Justice officials approved of such prosecution of activists. (Dkt. No. 12 at Ex. I to Ex. C).
(PL 56.1 Answer 8a(i)). Yet, the DOJ refuses to acknowledge or answer such request,
much less produce records in response to this request. (PL 56.1 Answer 8.1a(i)(A)(D)). Yet, it is known from press reports that the government prosecutes activists for
their activism. (Flores Decl., Ex. Q, T, U, V, W). It is known that the government, at
times, will target activists, like when the government sent a letter to the Rev. Dr. Martin
Luther King, Jr., trying to persuade him to commit suicide. (Flores Decl., Ex. R). Or,
when the government targeted John Lennon and Yoko Ono for possible deportation
hearings. (Flores Decl., Ex. S). Furthermore, the DOJ, in disclosing some guidelines
about the prosecution of activists, has cited sections from the United States Attorneys
Manual, which is publicly available over the Internet. 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- 82. 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). These public records
were disclosed to Plaintiff during the proceedings before this Court in response to the
Courts Omnibus Order. (Dkt. No. 14).
Contrary to the public nature of the Governments prosecution of activists, the
records are kept secret. The DOJ invoked a Glomar-equivalent response in this litigation
by refusing to acknowledge and process specific requests for records in the First FOIA
Request. Plaintiff has requested at least twice an Index of the Exempted Records
withheld from the Red Herring Response, but the DOJ has not produced an index of the
Exempted Records. The DOJ further invoked a No Number, No List response to deny
any information about the Exempted Records pertaining to Lt. Choi. (Dkt. No. 12, Ex. A
at 2, B at 46). (Flores Decl., Ex. I at 4(j)(ii)). (Flores Decl., Ex. J).
In accordance with its pattern and practise of violating FOIA, the DOJ will not
explain its failure to acknowledge, process, and provide responsive records in respect of
specific line-item requests in the First FOIA Request. All that is known is that the DOJ
- 16 -

makes this representation to the Court : There can be no withholding when, as in this
case, no responsive records exist. (Govt Mem. at 5). But facts are not available to
Plaintiff and to the Court, and there are controversies between the facts put forth by the
Government and Plaintiff. (Defs 56.1 Stmt.). (PL 56.1 Answer). The Government
makes a Glomar-equivalent response to deny the public information about, let alone
access to, records about the prosecution of activists.
The DOJ is simply refusing to fully account for the line-items in the First FOIA
Request fail, and this is known because some of the responsive records produced by the
DOJ indicate that the DOJ and some U.S. Attorneys Offices would likely have records
about the prosecution of activists. For example, when the Federal Bureau of
Investigation (FBI) begins an investigation of activists under one of the DOJs
guidelines, the FBI will consult with an U.S. Attorney. (Flores Decl., Ex. G at Tab D). See
U.S. Dept of Justice, United States Attorneys Manual 9-65.881. Under the same
section, there is legal advice given to the DOJ by the U.S. Department of State (DOS)
about criminal charges being disposed under local law. Id. Under a related section, a
U.S. Attorney will make a legal determination whether to prosecute activists. See U.S.
Dept of Justice, United States Attorneys Manual 9-65.882. These acknowledgements
defeat the Governments ability to maintain its Glomar-equivalent response with respect
to the line-items in the First FOIA Request, particularly in respect of the first sub-item
under request 1.10 Thus, it is substantively questionable that the DOJ is accurate when it
asserted that there are no responsive records. (Govt Mem. at 5). Since there is
evidence in the record from which a reasonable inference could be drawn in favor of the
non-movant on a material issue of fact, summary judgment is improper. See Hetchkop,
116 F.3d 28, 33. Furthermore, the Court must compel the DOJ to produce records being

10
The first sub-item under request 1of the First FOIA Request asked for records that would
identify : 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. (Dkt. No. 12 at Ex. I to Ex. C).
(PL 56.1 Answer 8a(i)).
- 17 -

created by 9-65.881-82, and all other similar sections, of the United States Attorneys
Manual.
The Government makes a No Number, No List response to deny Plaintiff
confirmation that the Exempted Records are truly exempt under FOIA, claiming that the
Exempted Records are not responsive to the First FOIA Request. (Govt Mem. at 16
n.6). Confirmation that the Exempted Records are truly exempt is particularly
necessary, given the DOJs conduct prior to the commencement of this action and during
proceedings before this Court. After all, it is DOJs burden to show that an exemption
properly applies. See Brennan, 697 F.3d at 201-02.
FOIA was enacted to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors
accountable to the governed. NLRB I, 437 U.S. 214, 242. As shown in Plaintiffs Index
of References to Records Requested Under FOIA Request, both President Obama and
Holder have said that activists have a right to protest, yet the Government prosecutes
activists for their activism or protests. (Flores Decl., Ex. L at 2-3). 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, said President Obama, referring to
peaceful activists as the vast majority who just want their voices heard around
legitimate issues in terms of how communities and law enforcement interact. (Flores
Decl., Ex. O at 2-3). Referring to activists, Holder said What we saw there was a
genuine expression of concern and involvement. And it is through that level of
involvement, that level of concern and I hope a level of perseverance and commitment,
that change ultimately will come. (Flores Decl., Ex. P at 1). There is a compelling
Federal interest in the public resolving the contradictions between the DOJs guidelines
and acknowledgements and public statements by President Obama and Holder. For
that to happen, the DOJ must disclose all records about the prosecution of activists.
- 18 -

4.
The DOJ wrongly claims it can comply with FOIA at its

discretion.
During discussions with Plaintiff, Defense Counsel has made the absurd
representation to Plaintiff that the DOJ can comply with FOIA at its discretion, and
Plaintiff objected to Defense Counsels assertion to no avail, because Plaintiff
complained to the Court in the Joint Status Report about the DOJs erroneous assertion
that the DOJ can disclose records under FOIA at its own discretion. (Dkt. No. 18 at 2).
Yet, the Court has allowed the DOJ to cling to this assertion, when that is not how FOIA
works. The DOJ claims it produced the Red Herring Release at its discretion. (Flores
Decl., Ex. F at 1). Now that the DOJ may face sanctions and penalties, all of the sudden
the DOJ is walking back from its assertion. (Govt Mem. at 14). All along, the DOJ has
treated FOIA as a law it complies with at its sole discretion, and this is reflected in the
DOJs treatment of Plaintiff (the Treatment). FOIA is not optional or discretionary, and
producing at least some records is not the same as producing records that have been
duly requested under FOIA.
The fifth sub-item under request 1 asked for any and all agency, executive,
judicial, or congressional reports, memoranda, records, and information provide any
description of the process for the determination as to whether activists can be targeted
for prosecution. (PL 56.1 Answer 8a(v)). (Dkt. No. 12 at Ex. I to Ex. C). An agency
must disclose the rules and interpretations that form their policies and law. See Brenan,
697 F. 3d 184, 195-6, 199-202. This includes an agencys opinion about what the law
is and what is not the law and why it is not the law. Tax Analysts v. IRS, 117 F.3d 607,
617 (D.C. Cir. 1997) (Tax Analysts II). Plaintiff is seeking guidelines that balance the
First Amendment rights, other Constitutional rights, civil liberties, and other civil rights
of activists when the DOJ prosecutes activists for their activism. (Dkt. No. 12 at Ex. I to
Ex. C). Responsive records must be disclosed. Yet, the DOJ has, though its actions,
treated FOIA as a law with which it could comply at its sole discretion, like when the
DOJ plainly admitted in the filing of its Answer before this Court that the DOJ has not
- 19 -

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. No. 9 at 27).
B.
DOJ May Not Lawfully Withhold Records Intepreting or Describing

its Guidelines on the Prosecution of Activists, Because Those
Records are the Agencys Working Law.
1.
FOIA Requires DOJ to Disclose its Working Law.
Under the working law doctrine, agencies must disclose the rules and
interpretations that constitute their formal or informal policy. See Brennan, 697 F.3d
184, 195-96, 199-202. This includes an agencys opinion about what the law is and
what is not the law and why it is not the law. Tax Analysts II, 117 F.3d 607, 617. An
agency document constitutes working law, and thus must be disclosed, if it has
become an agencys effective law and policy. Brennan, 697 F.3d at 199 (quoting NLRB
v. Sears, Roebuck, & Co., 421 U.S. 132, 153 (1975)) (NLRB II) (emphasis added) ; see
Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) ([T]o
prevent the development of secret law within the Commission, we must require it to
disclose orders and interpretations which it actually applies in cases before it.).
Crucially, the working-law doctrine does not require that a position expressed in a
document be absolutely binding on an agency; it need only reflect a settled and
established policy. Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 875 (D.C. Cir. 2010).
Similarly, legal interpretations routinely used and relied on fall within the definition
of working law. Coastal States, 617 F.2d at 869.
The working-law doctrine is grounded in the text of FOIA itself. As the Second
Circuit has emphasized, the working law analysis is animated by the affirmative
provisions of FOIA, which require agencies to disclose their operative rules and
interpretations to the public. Brennan, 697 F.3d at 200, 202 ; see 5 U.S.C. 552 (a)(1)
(2). In this scheme, the working-law doctrine serves a crucial function : it ensures that
an agency does not thwart FOIAs express requirements by develop[ing] a body of
secret law, used by it in the discharge of its regulatory duties and in its dealings with
the public, but hidden behind a veil of privilege because it is not designated as formal,
- 20 -

binding, or final. Am. Immigration Council v. Dept of Homeland Sec., 905 F. Supp. 2d
206, 218 (D.D.C. 2012) (quoting Coastal States, 617 F.2d at 867). Importantly, it is not
Plaintiffs burden to show that the materials are working law or have been adopted as a
final agency position ; rather, as under FOIA generally, it is DOJs burden to show that an
exemption properly applies. See Brennan, 697 F.3d at 201-02.
As improbable as it may seem, if the DOJ is correctly stating that no general
guidelines for the prosecution of activists exist (which is in doubt, given the guidelines
in the Unites States Attorneys Manual), then the DOJ must provide its working law
documents, as it did when it produced the Myers memo (email) and Capt. Guddemis
November 22 email. (Flores Decl., Ex. G at Tabs A and B). Absent general guidelines,
the DOJ has produced two case-specific documents that revealed interpretations of the
laws with which the DOJ uses to prosecute activists. Plaintiff already provided
examples of names of activists in the First FOIA Request, in the Complaint, and in the
Plaintiffs Index of References to Records Requested under FOIA Request. (Dkt. No. 12
at Ex. I to Ex. C). (Dkt. No. 15). (Flores Ex., Ex. L). Since the DOJ had said it had not
found any responsive records to the First FOIA Request, Plaintiff hoped that, by
providing examples of names of other activists, who had been prosecuted for their
activism, it would make it easier for the DOJ to locate and produce these records. (PL
56.1 Answer 40). Therefore, in the alternative of providing general guidelines, which,
as the DOJ claims, may not exist, then the DOJ should produce the equivalent of the
Myers memo (email) and Capt. Guddemis November 22 email for all of the activists
that Plaintiff has identified in the record of the proceedings before this Court, so that the
public can benefit from the disclosure of the DOJs working law applicable to the specific
prosecution of activists.
2.
DOJ Must Disclose All Records on Plaintiffs Index of

References to Records Requested Under FOIA Request,
Answer Plaintiffs Due Diligence Letter, and Answer the
Second FOIA Request.
Although the DOJ has provided little information to Plaintiff and to the Court,
the only time the DOJ has provided this little bit of responsive records has been at the
- 21 -

order of this Court. (Dkt. No. 14). (Flores Decl., Ex. G). There is no question that
responsive records likely exist. If the Myers memo (email) and Capt. Guddemis
November 22 email exist for Lt. Choi, then other working law records must exist for
similarly situated activists. Furthermore, from the few responsive records that the DOJ
has produced at the order of this Court, it is clear that the DOJ would have more
responsive records. For example, when local prosecutors drop charges or fail to bring
charges against activists, the U.S. Attorneys Office must make a prosecutive
determination in respect of bringing Federal criminal charges against activists. (Flores
Decl., Ex. G at Tab D). See U.S. Dept of Justice, United States Attorneys Manual 965.881. The DOJ is deliberately failing to inform Plaintiff and this Court about the
possible existence of records about the prosecution of activists.
If the Court accepts that the Myers memo (email) and Capt. Guddemis
November 22 email exist as working law, then the DOJ may be withholding other,
similar documents for other activists. Those other, similar documents may also form
working law for the DOJ. Whereas the DOJ said at the Initial Conference that there were
no responsive records, that later turned out to be untrue, when the DOJ produced the
Second FOIA Response. Under a section in the United States Attorneys Manual, there is
legal advice given to the DOJ by the U.S. Department of State (DOS) about criminal
charges being disposed under local law. Id. This acknowledgement defeats the
Governments ability to maintain its Glomar-equivalent response with respect to the
line-items in the First FOIA Request, particularly in respect of the first sub-item under
request 1.11 Thus, it is substantively questionable that the DOJ is accurate when it
asserted that there are no responsive records. (Govt Mem. at 5). Furthermore, the
Court must compel the DOJ to produce records being created by 9-65.881-82, and all
other similar sections, of the United States Attorneys Manual.

11
The first sub-item under request 1of the First FOIA Request asked for records that would
identify : 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. (Dkt. No. 12 at Ex. I to Ex. C).
(PL 56.1 Answer 8a(i)).
- 22 -

The DOJs pattern and practise of denying FOIA requests until such denials are
challenged in Court colour each of the DOJs refusal to fully answer Plaintiffs Due
Diligence Letter and the DOJs conveniently over-looking the Criminal Division within
the Civil Rights Division in its search for responsive records. The Court must reject the
DOJs unduly narrow reading of the First FOIA Request. The Court has discretion over
whether Plaintiff will receive records responsive to the First FOIA Request, and the
Court must see that FOIA is not a law with which the DOJ can comply at its sole
discretion, or that the DOJ can be said to have complied with FOIA by providing some of
the responsive documents. Thats not how FOIA works. Plaintiffs due diligence in
ensuring that the DOJ produce responsive records should not be held against him, and
the DOJ must be compelled to fully answer Plaintiffs Due Diligence Letter. Given that
the Civil Rights Division protects the civil rights of citizens and given that the DOJ
deliberately misled Plaintiff about the Criminal Division within the Civil Rights Division,
then the DOJ must be compelled to answer the Second FOIA Request and put the issue
to rest as to whether the Civil Rights Division has any responsive records by conducting
a search and providing a corresponding adequate Declaration.
3.
The DOJ has not asserted Exemptions for documents it has

withheld, and the DOJ has waived its right to invoke any
Exemptions.
In Davis v. DHS, the Court noted that an agency, which has received a FOIA
request but has not asserted a basis for withholding records, must release the records.
See Davis v. DHS, No. 11-CV-0203, 2013, WL 3288418 (E.D.N.Y. June 27, 2013)(Ross, J.).12
FOIA requires disclosure of all agency records at the request of the public, unless the
records fall within one of nine narrow Exemptions. See 5 U.S.C. 552(b). Despite the
intended narrow application of Exemptions under FOIA, the DOJ is not complying with
the law, because it is refusing to release records for which it has not claimed any

12
Plaintiff apologises to the Court, but Plaintiff could not find an adequate citation, as
Plaintiffs only copy of this Court ruling was provided as a digest on the DOJ Web site. See
Office of Information Policy, Davis v. DHS, U.S. Department of Justice (June 27, 2013),
http://www.justice.gov/oip/davis-v-dhs-no-11-cv-203-2013-wl-3288418-edny-june-272013-ross-j.
- 23 -

Exemptions. By now, the DOJ has forfeited the right to assert any Exemptions under
FOIA for any unreleased, responsive records. Senate of P.R. v. DOJ, 823 F.2d 574, 580.
Furthermore, the documents Plaintiff seeks are judicial records, and it is beyond dispute
that the public has a right to access judicial documents, generally, and this right is
protected by the First Amendment. See United States v. Erie Cnty., 763 F.3d 235, 239 (2d
Cir. 2014). Contrary to the law and as a consequence of the DOJs misconduct, the DOJ is
making this Court micromanage almost every aspect of the Free Speech FOIA
Requests by virtue of making Plaintiff bring all these issues before the Court rather than
the DOJ exercising reasonable judgment and answering Plaintiffs reasonable due
diligence requests.
As a direct result of acts of bad faith and by having been violating FOIA with
impunity, the DOJ has made it impossible to know how the Government balances the
First Amendment rights, other Constitutional rights, civil liberties, and other civil rights
of activists against criminal charges that the Government brings against activists. These
facts are not available. Without this information, the public is unable to determine if the
Government is intentionally targeting activists for prosecution. If the Government is
engaged in targeting activists, then the public is also unable to make informed
judgments about why the Government has targeted activists for prosecution. All that is
known is that the DOJ has prolonged its processing of the First FOIA Request by over
two years, until Plaintiff commenced this action before this Court, precisely in keeping
with the Governments pattern and practice of violating FOIA, as observed by The
Associated Press, when a reporter for the wire service noted that the DOJs initial
conduct after having received FOIA requests are later deemed improper under the
lawbut only when it was challenged in a Court. 13 (Flores Decl., Ex. FF). The
Governments acts of bad faith raise questions about its credibility, yet the Court has not
addressed the DOJs credibility issues.

13
See Ted Bridis, Administration sets record for withholding government files, The Associated
Press (Mar. 18, 2015), http://bigstory.ap.org/article/ab029d7c625149348143a
51ff61175c6/us-sets-new-record-denying-censoring-government-files.
- 24 -

C.
DOJs Searches Were Inadequate.
It is very likely that DOJ has responsive records. Yet, the DOJ conducted the
searches with limited search strings. The DOJ is mistaken and is trying to falsely
portray for the Court that the First FOIA Request only made four requests for records
for records regarding the prosecution of Lt. Choi. (Govt Mem. at 2). (Defs 56.1 Stmt.
8-11). The Request is plainly broader than the DOJs misleading description, and the
Court can reach this conclusion by just reading the actual numerated requests listed on
the First FOIA Request. (Dkt. No. 12 at Ex. I to Ex. C).
1.
The Declarations Are Inadequate, Were Filed By

Inexperienced Declarants, and Describe Searches That Were
Both Inadequate and Made in Bad Faith.
Plaintiff has objected to the authors and form and substance of the Declarations
provided to document the process by which the DOJ produced the Red Herring Release.
(Flores Decl., Ex. I at 1-2). Rather than try to resolve any of those issues, the DOJ has
forced Plaintiff to bring back all these routine due diligence issues before this Court,
precisely because the DOJs pattern and practise is not to comply with FOIA, but to
attempt at every possibility to avoid compliance, even if that means burdening and
overwhelming the Court with the minutia that a reasonable person tasked with
defending the public interest should be able to resolve, but the Government is not being
reasonable, and, here, the DOJ is not defending the public interest. (Flores Decl., Ex. K).
When viewed against the backdrop of how the DOJ undermines the free access of
Congressional documents and even engages in backroom lobbying to weaken FOIA, the
DOJs pattern and practise of subverting FOIA is clear. (Flores Decl., Ex. II, LL).
The search for records was insincere and was made in bad faith to deliberately
obscure records responsive to the First FOIA Request. In the First FOIA Request,
Plaintiff noted that the public does not have information about how the Government
balances the First Amendment rights, other Constitutional rights, civil liberties, and
other civil rights of activists as the Government prosecutes activists for their activism.
(Dkt. No. 12 at Ex. I to Ex. C at 2-3). Plaintiff noted that the Declarants did not directly
- 25 -

answer several items listed on the First FOIA Request. (PL 56.1 Answer 8.1). Instead,
the Declarant Karin Kelly only directly addressed item I.1.C., item I.2.B., item I.3, and
item I.4 (without complete itemisation) in her Declaration. (Kelly Decl. 18-20).
Plaintiff made eighteen (18) requests in four categories of documents and records in the
First FOIA Request. (PL 56.1 Answer 8, 9). Plaintiff requested an item-by-item
clarification. (Flores Decl., Ex. I at 1(i)). However, Defense Counsel did not provide
this item-by-item clarification. (Flores Decl., Ex. J). In spite of its failure to provide an
item-by-item clarification, as well as answer the many requests for clarification and the
conduct of routine due diligence by Plaintiff, the DOJ represented to this Court that the
DOJ made a response to Plaintiffs Due Diligence Letter. On November 3, 2015,
Defendant provided a response to Plaintiffs October 26, 2015, letter, which Plaintiff
argues is only a partial response. (Dkt. No. 18 at 2). The DOJs response was another
bad faith act, because it was far less than a partial response, because the DOJ only
answered two requests for clarification out of many that were requested. (Flores Decl.,
Ex. J).
Furthermore, the one time when the DOJ acknowledged having some
responsive records--in respect of the cost of the prosecution of Lt. Choi--the DOJ found
some records, but because it claims it cannot isolate the costs for Lt. Choi, then it wont
disclose any costs. (Kelly Decl., 20-24). To help the DOJ disclose some records in
response to the line item request for the costs of the prosecution of Lt. Choi, Plaintiff
offered to accept records for the cost of prosecution of all of the activists, including Lt.
Choi, involved in the demonstration on 15 November 2010, at the White House fence.
(Flores Decl., Ex. I at 1h). But the DOJ would not even deign to acknowledge this
reasonable offer to compromise in favour of disclosure. (Singh Decl., Ex. N). The DOJs
attitude is to prevent any disclosure, whether subject to reasonable compromise or not.
Plaintiff questioned why the DOJ chose some employees, who had been
employed less than one year to complete the Declarations. For example, Declarant
Princina Stone has only been employed with the DOJ since April 2015, and Plaintiff
questioned Princina Stones experience, including her claim to be familiar with the
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procedures followed by the DOJ. (Flores Decl., Ex. I 2(a)-(c)). It is not known how
long Declarant Karin Kelly has been employed by the DOJ, nor is it known what
qualifications Karin Kelly has to provide a Declaration in this action. (Flores Decl.,
Ex. I 1(a)). The DOJ deliberately chose not to answer the serious concerns about the
Declarations and the Declarants in Defendants Incomplete Due Diligence Response.
(Flores Decl., Ex. J). If Sola, Whitaker, or George did not conduct the searches and did
not provide the Declarations, it is simply not known if more records could have been
produced. In respect of the no records letter provided in lieu of a Declaration for the
Third FOIA Response, there is no description at all about how that search was conducted
and by whom. (Flores Decl., Ex. H). These facts are not available to Plaintiff and to the
Court, therefore making summary judgment inappropriate here. Fed. R. Civ. P. 56(d).
In a FOIA proceeding before the U.S. District Court for New Yorks eastern
district, the Court found that Declarants lacked sufficient personal knowledge on the
subject matter for purposes of Rule 56(c)(4) when the Declarant does not elaborate on
the extent of the her involvement in processing plaintiffs search request her
supervisory position, combined with the thorough description of the search and her
familiarity with the agencys search procedures. See Davis v. DHS.12 See also Fed. R.
Civ. P. 56(c)(4). In respect of one Declaration, the Court noted that the Declarant
attests to familiarity with the procedures regarding the processing of FOIA requests,
but says nothing about her personal knowledge or familiarity with the documents in
question. As a consequence, the Court in Davis ruled that the Court will not presume
personal knowledge of the declarant. The ruling in Davis found another Declaration in
the same matter was also deficient. The Court in Davis further found that that
Declaration does not explain how these experts arrived at their determination or
whether plaintiff was asked to provide a more specific request. See Davis v. DHS.12 In
the case before this Court now, the Declarant Karin Kelly admitted that in the search she
conducted, she limited the search string to activists and targeted, and this search
string was not turning up records. (Kelly Decl. 12, 14-14). Beyond what limited steps
Karin Kelly did take to search for records, Karin Kelly declared that she did not know of
- 27 -

other locations to search or other methods to use in her search, seemingly admitting
her ignorance. (Kelly Decl. 9).
2.
DOJ Did Not Conduct Adequate Searches.
Plaintiff objected to the quoting of only portions of the First FOIA Request by
Karin Kelly to others at the DOJ involved in the search for records, the appearance of a
limitation of persons contacted in the search for records, and the limitations of
activists and targeted in respect of the search strings used by Karin Kelly. (Flores
Decl., Ex. I 1(e)-(g)). It should be noted that only after the Court suggested that the
DOJ provide at least some of the records on Plaintiffs Index of References to Records
Requested under FOIA Request, and after the Court recommended that the DOJ conduct
a search of Main Justice, all of a sudden, months later, 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, it is easy to
illustrate the inadequacy of the DOJs search, because the Declarations do not explain
how the Declarants conducted searches of paper documents and files. All that is known
is that publicly-available documents were found, but there is no description about how
they were found, who had them, or how that search was conducted. (Kelly Decl. 26).
(Stone Decl. 7).
It is obvious why Plaintiff asked for specific records in sub-items : to trigger
the production of responsive records. However, the DOJ has only deigned to answer
some specific sub-items at the same time it is reducing the sub-items into four general
requests, as a way of subverting its obligation to actually conduct reasonable searches
for the sub-items listed on the First FOIA Request. That approach may have allowed the
- 28 -

DOJ to stall for time in producing records, but the Court cannot entertain such cramped
reading of the First FOIA request. [T]he Court will avoid a reading which renders some
words altogether redundant. See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995). All
along, the DOJ has asserted that it there are no responsive documents, even whilst it has
produced some responsive documents on order from this Court. (Flores Decl., Ex. G).
The DOJ did not find the documents in the Second FOIA Response at the time of the
collection of the records that formed the Red Herring Response, because the DOJ did not
even look for them. DOJs failure to search within categories of records plainly
containing responsive material was unreasonable, as was its willful aversion of the
enumerated sub-items on the First FOIA Request. The DOJ should be required to
conduct an adequate search.
In Davis, the Court noted that the agency which received a FOIA request did not
conduct an adequate and reasonable search for responsive records, because the
agency was required under its own FOIA regulations to tell plaintiff what additional
information was needed or why plaintiffs request was insufficient. See Davis v. DHS.12
According to the DOJs own FOIA regulations, If after receiving a request a component
determines that it does not reasonably describe the records sought, the component shall
inform the requester what additional information is needed or why the request is
otherwise insufficient (emphasis added). See 28 eCFR 16.3(b). Yet, the DOJ did not
ask Plaintiff for alternative search strings to use in the conduct of the search. (PL 56.1
Answer 59). Not only did the DOJ violate FOIA for over two years, but it also violated
its own FOIA regulations. Plaintiff is seeking guidelines that balance the First
Amendment rights, other Constitutional rights, civil liberties, and other civil rights of
activists when the DOJ prosecutes activists for their activism. (Dkt. No. 12 at Ex. I to Ex.
C). Yet none of the laws applicable to the prosecution of activists were searched, as an
alternative. (Flores Decl., Ex. I 1(g)). Furthermore, although there are rules for the
decorum and use of courtesy titles in the Courts, the DOJ claimed that there were no
such records in respect of the use of military rank during Court proceedings. (Karin
Decl., 19). If there are written rules about the use of official titles and military rank
- 29 -

during courtroom proceedings, Your Honor should order the DOJ to produce those
written rules.
In Davis, the Court found that despite the fact that Plaintiff made a request that
reasonably described the records he was seeking, by virtue of the way the search was
conducted, it was as if the agency had conducted no search at all. See Davis v. DHS.12
This is how the DOJ has handled the Free Speech FOIA Requests.
3.
Assistant U.S. Attorney Angela George improbably claimed

she did not have a copy of the United States Attorneys
Manual.
According to the Declaration of Karin Kelly, during Karin Kellys search for
records that later formed the Red Herring Release, Karin Kelly wrote that the AUSA, or
the Assistant U.S. Attorney with whom Karin Kelly spoke, did not have a manual to
refer to regarding the prosecution of activists. (Kelly Decl. 18). The AUSA was
identified by Defense Counsel to be George. (PL 56.1 Answer at 91). (Singh Decl., Ex.
N at 1). Furthermore, when the EOUSA produced the Red Herring Response, the EOUSA
wrote : A search for records located in United States Attorneys Office for the District of
Columbia (USAO/DC) has revealed no responsive records for items 1 through 4 of your
FOIA/PA request. (Flores Decl., Ex. F at 1). After Plaintiff served Defense Counsel with
Plaintiffs Index of References to Records Requested under FOIA Request at the Initial
Conference, and after the Court recommended that the DOJ conduct a search of Main
Justice, all of a sudden, months later, 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. It is
improbable to believe that George, who is an Assistant U.S. Attorney, and who tried Lt.
Choi on criminal charges regarding his activism, would not have a copy of the United
States Attorneys Manual. Interfering with government administration is a violation of
Penal Law 195.05, Second-Degree Obstruction of Government Administration. See N.Y.
Pen. Law 195.05. Like The New York Times journalist Charlie Savage has observed, an
- 30 -

executive agency can omit an embarrassing document from a FOIA request, and, when
caught, delay its disclosure by several months. (Flores Decl., Ex. GG).
Furthermore, in respect of two long-awaited documents, the Myers memo
(email) and Capt. Guddemis November 22 email, the Government produced records
that were redacted without any Exemption under FOIA declared for such redaction.
(Flores Decl., Ex. G at Tabs A and B). Plaintiff requested that the DOJ provide
clarification about the redactions in the Myers memo (email) and in Capt. Guddemis
November 22 email. (Flores Decl., Ex. I at 4(b)(ii), (c)(ii)). But the DOJ would not
address the issue of the redactions in Defendants Incomplete Due Diligence Response.
(Singh Decl., Ex. N). Failure to preserve potentially relevant evidence becomes
spoliation when that evidence is destroyed or is significantly and meaningfully altered.
Each component shall preserve all correspondence pertaining to the requests that it
receives under this subpart, as well as copies of all requested records, until disposition
is authorized pursuant to title 44 of the United States Code or the General Record
Schedule 14 of the National Archives and Records Administration. Records shall not be
disposed of or destroyed while they are the subject of a pending request, appeal, or
lawsuit under the FOIA. See 28 eCFR 16.9. The DOJ should have preserved all
documents, because when the OIP informed Plaintiffs Counsel that the First FOIA
Request was being remanded by the OIP to the EOUSA for a search for responsive
records, Plaintiffs Counsel was advised that, 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. 522(a)(4)(B). (Flores Decl., Ex. D
at 1). Plaintiff asks the Court to address the DOJs possible spoilation of records
responsive to FOIA.
Moreover, the DOJ wrongly claimed that the Myers memo (email) and Capt.
Guddemis November 22 email were not responsive to the First FOIA Request,
because the Myers memo (email) and Capt. Guddemis November 22 email were not
DOJ guidance. (Singh Decl., Ex. K at 2-3). In the case of the Myers memo (email), the
DOJ said that that document was correspondence between an individual at the
- 31 -

Solicitors Office of the United States Department of the Interior and individuals at the
National Park Service (NPS), and, in the case of the Capt. Guddemis November 22
email, the DOJ said that that document was a forwarded email chain, involving
individuals at the NPS, the United States Park Police, the United States Secret Service,
and the United States Capitol Police. (Singh Decl., Ex. K at 2-3). However, item I.1.F. of
the First FOIA Request specifically requested records pertaining to : 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. (Dkt. No. 12 at Ex. I
to Ex. C). The Myers memo (email) provides legal analysis for charges to be brought
against activists, who chain themselves to the White House fence, as Lt. Choi and others
did during several protests in calling for the repeal of the U.S. militarys discriminatory
policy known as Dont Ask, Dont Tell, and Capt. Guddemis November 22 email
provides notification of an impending protest where Lt. Choi and others planned to
handcuff themselves to the White House fence. (Flores Decl., Ex. G at Tabs A and B).
The Myers memo (email) and Capt. Guddemis November 22 email are entirely
responsive to the First FOIA Request. Indeed, after Plaintiff discussed these two specific
documents at the Initial Conference, it was not long after that when the Court suggested
to the DOJ that the DOJ should produce some of the documents on Plaintiffs Index of
References to Records Requested under FOIA Request. Listed on Plaintiffs Index of
References to Records Requested under FOIA Request were the Myers memo (email)
and Capt. Guddemis November 22 email. (Flores Decl., Ex. L at 5-6). Not only that,
but the Myers memo (email) and Capt. Guddemis November 22 email were also
cited as Governments Exhibits 24 or 25 in Plaintiffs Letter Motion, asking for the
conduct of discovery. (Dkt. No. 12 at 2). Plaintiff respectfully requests that the Court
admonish the DOJ for each of wrongly withholding the Myers memo (email) and Capt.
Guddemis November 22 email from the Red Herring Response and wrongly justifying
the withholding of the documents based on unfounded reasoning.
- 32 -

4.
The DOJ wrongly claims to have lost the First FOIA Request,
the DOJ wrongly closed out the First FOIA Request in its
systems, the DOJ wrongly opened a new FOIA request in its
systems for the First FOIA Request, the DOJ produced
redacted records without asserting an Exemption, the DOJ
wrongly claimed that responsive documents were not
responsive to the First FOIA Request, and the DOJ has
submitted at least one altered document into evidence.
The Court in Davis had to consider an instance where the agency receiving a
FOIA request had misplaced the FOIA request. After reviewing a Declaration based on a
misplaced FOIA request, the Court in Davis ruled that the request had to be re-opened
by the agency for processing. See Davis v. DHS.12 Yet, in the case before this Court now,
the DOJ did not re-open the original request (Request No. 13-1506). (Flores Decl., Ex. D
at 1). Nor did the DOJ re-open the FOIA Appeal (Appeal No. AP-2014-00890). (Flores
Decl., Ex. D at 1). Instead, contrary to the 2014 order in the OIP Remand Memo that the
EOUSA reopen this file in respect of the original request (Request No. 13-1506), the
DOJ apparently just closed out the original request and the FOIA Appeal. (Flores Decl.,
Ex. D at 2). (Stone Decl. 5). Later, the DOJ opened a new request for the First FOIA
Request, after the proceedings commenced before this Court (2015-02422). (Stone
Decl. 6). (Kelly Decl. 3). Plaintiff asserts that by closing out the original request, the
DOJ was attempting to ringfence DOJ officials, who never answered the First FOIA
Request, from having to provide Declarations about their acts of bad faith before this
Court.
Over the course of many telephone conversations between Plaintiff and Sola,
the paralegal at the EOUSA, the EOUSA : (i) never expressly answered Plaintiffs
request for expedited processing of the First FOIA Request, (ii) never processed the
First FOIA Request within the twenty (20) business-day time frame for processing a
standard FOIA request not entitled to expedited treatment, (iii) and made
representations : (m) that Plaintiff would receive a letter explaining the DOJs decision
to decline the fee waiver, (n) that the First FOIA Request was under search, (o) that
Plaintiff would receive an invoice, indicating how many records were found, (p) that
- 33 -

some entity known as OPA would be sending Plaintiff a letter explaining the decision
to decline Plaintiffs request for expedited processing, and (r) that the EOUSA would
have more answers for Plaintiff, none of which materialised. (Dkt. No. 1 at 44-50 ;
Dkt. No. 15 at 44-50). Moreover, Whitaker was involved in the original request in
respect of the First FOIA Request. (PL 56.1 Answer 11a, 17b). However, none of the
Declarations provided by the DOJ reference neither Solas or Whitakers knowledge or
involvement with the DOJs search for records. (Stone Decl.). (Kelly Decl.). Moreover,
one of the Declarations provides facts contradictory to the EOUSAs actions taken and
statements made by Sola. (Stone Decl., 5). How could have Sola engaged in
discussions with Plaintiff about the First FOIA Request over the course of many weeks
during 2013, yet the DOJ have no record of the First FOIA Request ? Such conflicts in
facts cannot be allowed to stand.
The DOJ made a material misrepresentation in this case, when the DOJ claimed
that it did not have a copy of the First FOIA Request. (Dkt. No. 9 at 4, 8, and 34-38).
After the DOJ was challenged about this by Plaintiff during negotiations for the release
of records that were really responsive to the First FOIA Request, the DOJ later changed
its representations when the DOJ filed its Amended Answer. (Dkt. No. 17 at 4, 8, and
34-38). The representation in 34 changed from despite searching its records,
Defendant has been unable to find a copy of Plaintiffs FOIA request in its files to
despite searching its records, EOUSA was unable to find Plaintiffs April 30, 2013 FOIA
request in its files. (Dkt. No. 9 at 34 and Dkt. No. 17 at 34). The DOJ made this
change, after Plaintiff pointed out to the Court at the Initial Conference that Defendant
admitted in the Answer that the DOJ had received a copy of Plaintiffs e-mail, attached to
which was a copy of the First FOIA Request. (PL 56.1 Answer 12). (Dkt. No. 9 at 4,
29 and Dkt. No. 12 at 2-3). Defense Counsel later admitted as much, when, during a 16
October 2015, Telephone Conference between Defense Counsel and Plaintiff, that
George, who had prosecuted Lt. Choi, had a copy of the First FOIA Request all along,
rendering as false the DOJs claim that it had no copy of Plaintiffs First FOIA Request.
(PL 56.1 Answer 91). (Flores Decl., Ex. JJ). Moreover, the First FOIA Request was sent
- 34 -

by Plaintiff to an address provided by the DOJ by Certified Mail Return Receipt
Requested. (Dkt. No. 12 at Ex. D to Ex. I to Ex. C). The First FOIA Request was physically
received and signed for by an agent of the DOJ on 06 May 2013. (Dkt. No. 12 at Ex. II to
Ex. C). As a courtesy, Plaintiff e-mailed on 30 April 2013, the First FOIA Request to DOJ
officials, including William Miller, a public information officer with the U.S. Attorneys
Office for the District of Columbia (Miller). (Flores Decl., Ex. JJ). On 01 May 2013, a
DOJ official acknowledged receipt by return e-mail to Plaintiff of Plaintiffs 30 April
2013 e-mail transmitting the First FOIA Request. (Flores Decl., Ex. RR).
Plaintiff draws the Courts attention to the Governments Exhibit, which
purports to be a hardcopy of Plaintiffs e-mail transmitting the electronic copy of the
First FOIA Request. (Singh Decl., Ex. F). The Court will note that this hardcopy, which
was sworn to be a true and correct copy, is lacking, or was stripped of, any indication
that an electronic copy of the First FOIA Request was attached, as is normally indicated
in hardcopy print-outs of e-mails with attachments. See, e.g., Flores Decl., Ex. JJ
(showing that attachment was included in the e-mail). Plaintiff asks the Court to
address the DOJs possible altering of records admitted into evidence. Given that
Plaintiff is requesting detailed Declarations from experienced Declarants, the Court
should compel the DOJ to reopen the original request, so that DOJ officials, namely, Sola,
Whitaker, and George, can provide Declarations about searches conducted in respect of
the original request and to clear up controversies in facts about the DOJs mishandling
of the First FOIA Request.
Furthermore, in respect of two long-awaited documents, the Myers memo
(email) and Capt. Guddemis November 22 email, the Government produced records
that were redacted without any Exemption under FOIA declared for such redaction.
(Flores Decl., Ex. G at Tabs A and B). Plaintiff requested that the DOJ provide
clarification about the redactions in the Myers memo (email) and in Capt. Guddemis
November 22 email. (Flores Decl., Ex. I at 4(b)(ii), (c)(ii)). But the DOJ would not
address the issue of the redactions in Defendants Incomplete Due Diligence Response.
(Singh Decl., Ex. N).
- 35 -

Failure to preserve potentially relevant evidence becomes spoliation when that
evidence is destroyed or is significantly and meaningfully altered. Each component
shall preserve all correspondence pertaining to the requests that it receives under this
subpart, as well as copies of all requested records, until disposition is authorized
pursuant to title 44 of the United States Code or the General Record Schedule 14 of the
National Archives and Records Administration. Records shall not be disposed of or
destroyed while they are the subject of a pending request, appeal, or lawsuit under the
FOIA. See 28 eCFR 16.9. Plaintiff asks the Court to address each of the DOJs possible
spoilation of records responsive to FOIA and the submission of incomplete or altered
documents into evidence in proceedings before this Court.
Moreover, the DOJ wrongly claimed that the Myers memo (email) and Capt.
Guddemis November 22 email were not responsive to the First FOIA Request,
because the Myers memo (email) and Capt. Guddemis November 22 email were not
DOJ guidance. (Singh Decl., Ex. K at 2-3). In the case of the Myers memo (email), the
DOJ said that that document was correspondence between an individual at the
Solicitors Office of the United States Department of the Interior and individuals at the
National Park Service (NPS), and, in the case of the Capt. Guddemis November 22
email, the DOJ said that that document was a forwarded email chain, involving
individuals at the NPS, the United States Park Police, the United States Secret Service,
and the United States Capitol Police. (Singh Decl., Ex. K at 2-3). However, item I.1.F. of
the First FOIA Request specifically requested records pertaining to : 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. (Dkt. No. 12 at Ex. I
to Ex. C). The Myers memo (email) provides legal analysis for charges to be brought
against activists, who chain themselves to the White House fence, as Lt. Choi and others
did during several protests in calling for the repeal of the U.S. militarys discriminatory
policy known as Dont Ask, Dont Tell, and Capt. Guddemis November 22 email
- 36 -

provides notification of an impending protest where Lt. Choi and others planned to
handcuff themselves to the White House fence. (Flores Decl., Ex. G at Tabs A and B).
The Myers memo (email) and Capt. Guddemis November 22 email are
entirely responsive to the First FOIA Request, as is the guidance provided by the U.S.
Department of State to the DOJ under 9-65.881 of 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 9-65.881. Indeed, after Plaintiff discussed the Myers
memo (email) and Capt. Guddemis November 22 email at the Initial Conference, it
was almost immediately after that when when the Court suggested to the DOJ that the
DOJ should produce at least some of the documents on Plaintiffs Index of References to
Records Requested under FOIA Request, an order that was encapsulated in the Courts
Omnibus Order of that day. (Dkt. No. 14 at 2). Not only that, but the Myers memo
(email) and Capt. Guddemis November 22 email were also cited as Governments
Exhibits 24 or 25 in Plaintiffs Letter Motion, asking for the conduct of discovery.
(Dkt. No. 12 at 2). Given that the Court suspected or knew to suspect, at the Initial
Conference, that the DOJ had been being uncoperative and was possibly withholding
responsive records, Plaintiff respectfully requests that the Court further compel the DOJ
to produce all of the records responsive to the Free Speech FOIA Requests, and this
includes the Court making a determination about the DOJs obligation to produce
publicy-available records that are responsive to the First FOIA Request, such as the
documents missing from the Red Herring Request. Plaintiff had asked that the Court
make such a determination at the Initial Conference, but such determination was not
made in the Courts Omnibus Order. (Dkt. No. 14).
D.
The Court Should Permit Plaintiff Limited Discovery to Establish

Facts as Necessary, or Should Order the Government to Cure its
Inadequate Declarations, Provide Declarations By Experienced
Declarants, and to Produce a Vaughn Index.
As explained above, DOJ has failed to put sufficient facts into the record to carry
its burden under FOIA. The Declarations are inadequate. (Flores Decl., Ex. I at 1-2).
The Declarations were filed by inexperienced Declarants. (Flores Decl., Ex. I at 1(a),
- 37 -

2(a)-(c), (i)). The Declarations describe searches that were made in bad faith. (Flores
Decl., Ex. I at 1(b)-(g), (i), 2(c)-(h), (j)). Furthermore, if the DOJ were truly confused
by the First FOIA Request, then the DOJ should have asked Plaintiff for clarification. See
28 eCFR 16.3(b). Moreover, DOJ submits that the DOJ has a log showing that it
received the First FOIA Request. (Defs 56.1 Stmt. 13). However, the DOJ has not
produced records about that log into evidence, so facts about the log are not available to
the Court or Plaintiff. (PL 56.1 Answer 13). In dispositive motion practice, if a
nonmovant shows that facts are unavailable to the nonmovant, then the Court may :
(1) defer considering the motion or deny it ; (2) allow time to obtain affidavits or
declarations or to take discovery ; or (3) issue any other appropriate order. See Fed. R.
Civ. P. 56(d). Plaintiff has documented by way of Declaration that a serious number of
facts are simply not available for the Court and for Plaintiff to allow the Court to grant
Defendant summary judgment in this action. (Flores Decl. 4A-P).
Plaintiff and the Court need to be clear about what the DOJ did with the First
FOIA Request, the FOIA Appeal, and the OIP Remand Memo, and these facts are not
available. Since these facts are not available, the Court must order the better responses
from the DOJ. See Davis v. DHS.12 The Court and Plaintiff need additional facts to resolve
what happened to the DOJs handling of the First FOIA Request in the two years before
Plaintiff commenced this action, when the DOJ had 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. No. 9 at 27). The Court should permit Plaintiff to
conduct limited discovery to establish additional facts. See Fed. R. Civ. P. 56(d). Limited
discovery would be appropriate in this case, because Plaintiff and the Court should
know what the DOJ did for two years prior to the commencement of this action,
particularly since Plaintiff is requesting sanctions and penalties to be imposed on the
DOJ. Under FOIA, discovery is appropriate when an agency has not undertaken an
adequate search for records. Schrecker v. Dept of Justice, 217 F. Supp. 2d 29, 35 (D.D.C.
2002), affd 349 F.3d 657 (D.C. Cir. 2003).
- 38 -

Discovery in FOIA cases is rare, but it is appropriate where a party has
provided some tangible evidence that an exemption claimed by the agency should not
apply or summary judgment is otherwise inappropriate. Carney, 19 F.3d at 812-13
(citing Wash. Post Co. v. U.S. Dept of State, 840 F.2d 26, 28 (D.C. Cir. 1988) (party
produced evidence including press accounts suggesting exemption did not apply) ;
Porter v. DOJ, 717 F.2d 787, 791-93 (3d Cir. 1983) (agency affidavits included conflicting
information)).14
Plaintiff has provided such evidence by noting that, in public information,
responsive documents likely exist and likely contain the DOJs working law. Guidelines
from the United States Attorneys Manual allude to the likely existence of responsive
records. (Flores Decl., Ex. G at Tab D). See U.S. Dept of Justice, United States Attorneys
Manual 9-65.880-82. Plaintiff has also noted contadictory information between public
statements made by President Obama and Holder about the right of activists to protest
versus the Governments guidelines governing the prosecution of activists. The fact that
President Obama and Holder have made public statements that contradict the DOJs
guidelines is basis for the Court to allow limited discovery to reconcile the controversy
of the facts.
In its effort to explain away its past misconduct, the DOJ has since made
statements that are misleading and have entered into evidence documents that are
suspect. For instance, the DOJ has informed this Court that it never had a copy of the
First FOIA Request. (Dkt. No. 9 at 4, 8, and 34-38). But that is demonstrably false.
George had a copy of the First FOIA Request all along. Plus, Miller acknowledged
receiving a copy. (Flores Decl., Ex. RR). Plaintiffs e-mail, which transmitted an
electronic copy of the First FOIA Request, was also sent to a general e-mail account of
the DOJ (AskDOJ@usdoj.gov). (Flores Decl., Ex. JJ). Furthermore, whilst Plaintiff was
being represented by Plaintiffs Counsel, the DOJ never asked one of the attorneys at

14
See also Schaffer v. Kissinger, 505 F.2d 389, 391 (D.C. Cir. 1974) (granting discovery) ;
Families for Freedom v. U.S. Customs and Border Prot., 837 F. Supp. 2d. 331, 335-37 (S.D.N.Y.
2011) (same).
- 39 -

Plaintiffs Counsel working on the FOIA Appeal for a replacement copy of the First FOIA
Request. (Flores Decl., Ex. NN).
The DOJs pattern and practise of denying FOIA requests until such denials are
challenged in Court colour each of the DOJs refusal to disclose all of the responsive
documents and the DOJs unduly narrow reading of the First FOIA Request. The events
and policies at the heart of this case are sensitive ones for the government, especially in
respect of Federal franchise rights, if activism and citizen participation in the shaping of
public policy can be considered an extension of the Federal franchise, if not only being
protected citizen activities under the First Amendment. But FOIA does not permit DOJ
to withhold documents out of embarrassment or a desire to obscure its past failures.
Limited discovery is warranted in precisely these circumstances. Carney, 19 F.3d at
812-13 ; cf. Jones v. FBI, 41 F.3d 238, 243 (6th Cir. 1994) (greater scrutiny appropriate
where it becomes apparent that the subject matter of a request involves activities
which, if disclosed, would publicly embarrass the agency). Here, Plaintiffs claim under
the First Amendment is critical.
The DOJs misconduct forces Plaintiff to engage in speech that has been
restricted by government officials to incomplete speech that lacks information in the
records sought by Plaintiff, and the DOJs position forces citizens to engage in restricted
speech or else face vindictive prosecution if citizens engage in civic activities by acting
as activists to pressure the government for reform. By refusing to answer the Free
Speech FOIA Requests, the DOJ provides no authority for its ability to impose those
speech restrictions on Plaintiff, other journalists, citizens, or activists, who are not party
to the Request submitted by Plaintiff. Plaintiffs ability to speak, meaningfully assemble
with other journalists, citizens, or activists, and to discuss any petition to the
government for a redress of grievances is being unconstitutionally restricted by the
DOJs pattern and practice of denying the Free Speech FOIA Requests and other FOIA
requests. These restrictions constitute an prior restraint and content-based restriction
on, and government viewpoint discrimination against, Plaintiffs right to speak about
information of the governments conduct, which is of public concern, and this effect is
- 40 -

unconstitutional. Near v. Minnesota, 283 U.S. 697 (1931). Plaintiff is entitled under the
First Amendment to be provided complete information about the governments
conductincluding how the government balances First Amendment rights, other
Constitutional rights, civil liberties, and other civil rights of activists against charges that
the DOJ brings against activistsand in a means by which the DOJ can account for and
explain its unconstitutional speech restrictions. (Dkt. No. 15 at ).
Given the disputes in the 56.1 statements of undisputed facts and the other
controversies noted herein, the DOJ has failed to provide the factual information that
would allow Plaintiff and the Court to adequately determine the credibility of DOJ
officials interviewed or not interviewed by the Declarants, such as George, Sola, and/or
Whitaker. Accordingly, Plaintiffs request leave to serve interrogatories and take a small
number of depositions (three) on the following topics:
The timing and chronology of DOJs decision-making process ;
The veracity of the DOJs claims it never received the First FOIA
Request or that the DOJ misplaced the request file ; and
The veracity of the DOJs claims that George never had a copy of the
United States Attorneys Manual.
CONCLUSION
The Governments Glomar-like and No Number, No List responses are defeated,

since the Government has officially acknowledged the existence or scope of responsive
records, as it certainly has by the DOJs projection of relevant sections from the United
States Attorneys Manual. The Declarations are defective, rendering summary judgment
in favour of the DOJ inappropriate. Fed. R. Civ. P. 56(c)(4). The searches were unlawful
or undocumented. In reviewing the Defendants 56.1 Statement, the Court will view it
as selective and a cherry-picking of facts. Just because the DOJ filed its statement
first, or just because the DOJ is part of the Federal Government, it doesnt mean that its
statement is whole, complete, or true. Based on the pattern and practise of the DOJs
misconduct, there are substantive questions in the evidence before the Court.
- 41 -

Moreover, Plaintiff has documented by way of Declaration that a serious number of
facts are simply not available for the Court and for Plaintiff to allow the Court to grant
Defendant summary judgment in this action. (Flores Decl. 4A-P). Fed. R. Civ. P. 56(d).
For the foregoing reasons, the Court should deny the Defendants motion for
summary judgment, grant Plaintiffs motion, and (i) order the DOJ to produce additional
records, information, and indices in response to the Free Speech FOIA Requests ;
(ii) make a determination about the DOJs obligation to produce, under FOIA, publiclyavailable documents and order the DOJ to produce all documents, known or unknown,
missing from the Red Herring Response ; (iii) order the DOJ to fully answer Plaintiffs
Due Diligence Letter ; (iv) order the DOJ to produce detailed Declarations, with a lineitem accounting of the searches for the items on the First FOIA Request, by Declarants
with sufficient personal knowledge on the subject matter of the First FOIA Request ; and
(v) order limited discovery to establish facts about the missing request and appeal files
for the First FOIA Request.

Dated : Jackson Heights, New York

January 5, 2016

Respectfully submitted,

___________________________________
Louis Flores
Jackson Heights, NY 11372
Phone : (646) 400-1168
Pro Se Plaintiff
- 42 -

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

LOUIS FLORES,

Plaintiff,
15-CV-2627 (JG)(RLM)

v.
AFFIRMATION

OF SERVICE
UNITED STATES DEPARTMENT OF

JUSTICE,

Defendant.

I, LOUIS FLORES, declare under penalty of perjury that I have served a copy of
the attached PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN
OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT and
MEMORANDUM IN SUPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY
JUDGMENT AND IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY
JUDGMENT upon RUKHSANAH L. SINGH, whose address is : c/o United States
Attorneys Office, Eastern District of New York, 271 Cadman Plaza East, 7th Floor,
Brooklyn,
New
York
11201
by
ELECTRONIC
MAIL
DELIVERY
rukhsanah.singh@usdoj.gov.

Dated : Jackson Heights, New York

January 5, 2016

Louis Flores
Jackson Heights, New York 11372
Phone : (646) 400-1168

- 43 -
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2016-01-05 Plaintiff's Opposition To DOJ's Motion For Summary Judgement - Brief (Flores V Doj) (Foia) (Stamped)

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Case 1:15-cv-02627-JG-RLM Document 24-1 Filed 01/05/16 Page 1 of 47 PageID #: 427

UNITED STATES DISTRICT COURT

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FOIA : Standard of Review on Summary Judgment.

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The First Amendment

The Governments Responses Are Unlawful, Because It Has Officially

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The Governments Glomar-equivalent Response and No Number,

Glomar and No Number, No List Responses are Permitted in

Normally, when responding to a FOIA request, the responding governmental

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Agencies Glomar and No Number, No List Responses Are

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Records Produced by the DOJ Prove that Responsive

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The DOJ wrongly claims it can comply with FOIA at its

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DOJ May Not Lawfully Withhold Records Intepreting or Describing

FOIA Requires DOJ to Disclose its Working Law.

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DOJ Must Disclose All Records on Plaintiffs Index of

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The DOJ has not asserted Exemptions for documents it has

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DOJs Searches Were Inadequate.

The Declarations Are Inadequate, Were Filed By

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DOJ Did Not Conduct Adequate Searches.

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Assistant U.S. Attorney Angela George improbably claimed

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The Court Should Permit Plaintiff Limited Discovery to Establish

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