Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 1 of 23 PageID #: 1380

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LOUIS FLORES,
Civil Action No. 15-CV-2627
Plaintiff,
v.

(Gleeson, J.)
(Mann, M.J.)

UNITED STATES DEPARTMENT OF

JUSTICE,
Defendant.

MEMORANDUM OF LAW IN FURTHER SUPPORT OF

DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO
PLAINTIFFS CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

ROBERT L. CAPERS
United States Attorney
Eastern District of New York
Attorney for Defendants
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201

RUKHSANAH L. SINGH
Assistant United States Attorney
Of Counsel

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 2 of 23 PageID #: 1381

TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................2
I.

Plaintiffs Arguments Regarding Events Pre-Dating The Lawsuit Do Not

Withstand Defendants Motion For Summary Judgment...................................................2

II.

Plaintiff Has Not Shown That EOUSA Did Not Adequately Respond To His
FOIA Request .....................................................................................................................6
A. EOUSAs Response to Plaintiffs FOIA is Neither a Glomar Response
Nor a No Number, No List Response...................................................................6
B. EOUSA and USAO-DC Conducted Reasonable Searches ......................................7
C. EOUSA Provided Non-Responsive Documents in Good Faith.............................10

III.

The Court Should Deny Plaintiffs Request For Discovery .............................................12

IV.

Plaintiff Fails To State A Claim For Bad Faith ................................................................17

V.

Plaintiff Cannot State a Claim for a Violation of His First Amendment Rights ..............17

CONCLUSION ..............................................................................................................................19

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 3 of 23 PageID #: 1382

TABLE OF AUTHORITIES
Page
Cases
Amnesty Intl USA v. Cent. Intelligence Agency, 728 F. Supp. 2d 479 (S.D.N.Y. 2010) ............... 4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 6
Barouch v. U.S. Dept of Justice, 962 F. Supp. 2d 30 (D.D.C. 2013) .......................................... 12
Biberman v. Fed. Bureau of Investigation, 528 F. Supp. 1140 (S.D.N.Y. 1982) ......................... 13
Carney v. United States Dept of Justice, 19 F.3d 807 (2d Cir. 1994) .................................. passim
Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 12 F. Supp. 3d 100 (D.D.C. 2014) .............12
Ctr. for Natl Sec. Studies v. U.S. Dept of Justice, 331 F.3d 918 (D.C. Cir. 2003)..................... 18
Davis v. United States Dept of Homeland Sec., No. 11-CV-203, 2013 WL 3288418
(E.D.N.Y. June 27, 2013) ............................................................................................................7
Garcia v. U.S. Dept of Justice, 181 F. Supp. 2d 356 (S.D.N.Y. Jan. 14, 2002) ...................... 5, 10
Gillin v. Internal Revenue Serv., 980 F.2d 819 (1st Cir. 1992) .................................................... 16
Greenberg v. U.S. Dept of Treasury, 10 F. Supp. 2d 3 (D.D.C. 1998) ................................. 11, 12
Halpern v. Fed. Bureau of Investigation, 181 F.3d 279 (2d Cir. 1999) ....................................... 12
In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d
Cir. 2009) ...................................................................................................................................18
Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1 (D.D.C. 1995) ...................................................... 8
Kowalczyk v. Dept of Justice, 73 F.3d 386 (D.C. Cir. 1996)....................................................... 13
Muset v. Ishimaru, 783 F. Supp. 2d 360 (E.D.N.Y. 2011) ............................................................. 5
N.Y. Times Co. v. United States Dept of Justice, 756 F.3d 100 (2d Cir. 2014) ............................. 6
Peralta v. United States Attorneys Office, 136 F.3d 169 (D.C. Cir. 1998) ................................... 4
Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976) .................................... 6
Pietrangelo v. U.S. Army, 334 F. Appx 358 (2d Cir. 2009) ........................................................ 17
Pub. Investors Arbitration Bar Assn v. U.S. Sec. Exch. Commn, 930 F. Supp. 2d 55
(D.D.C. 2013), affd, 771 F.3d 1 (D.C. Cir. 2014) ....................................................................14
Republic of New Afrika v. Fed. Bureau of Investigation, 645 F. Supp. 117 (D.D.C. 1986) ......... 16
SafeCard Serv., Inc. v. Sec. Exch. Commn, 926 F.2d 1197 (D.C. Cir. 1991)................................ 5
Sec. Exch. Commn v. Am. Internatl Group, 712 F.3d 1 (D.C. Cir. 2013) .................................. 18
Simon v. United States, 587 F. Supp. 1029 (D.D.C. 1984) ............................................................. 5
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ......................................................................... 12
Wilner v. Natl Sec. Agency, 592 F.3d 60 (2d Cir. 2009) ............................................................... 6
Statutes
5 U.S.C. 522 ................................................................................................................................. 1
5 U.S.C. 522(a)(4)(B) .......................................................................................................... 13, 17
5 U.S.C. 552(a)(2) ........................................................................................................................ 9
5 U.S.C. 552(a)(6)(A)(i) .............................................................................................................. 8
5 U.S.C. 552(a)(6)(C) ................................................................................................................ 17
5 U.S.C. 552(a)(7)(A) .................................................................................................................. 5

ii

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 4 of 23 PageID #: 1383

Rules
Fed. R. Civ. P. 56(c)(4) ................................................................................................................... 7
Fed. R. Civ. P. 72(a) ..................................................................................................................... 14
L. Civ. R. 6.3................................................................................................................................. 14

iii

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 5 of 23 PageID #: 1384

PRELIMINARY STATEMENT
Defendant Department of Justice (Defendant or DOJ) respectfully submits this reply
memorandum of law in further support of its motion for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure (Dkt. No. 20) and in opposition to Plaintiff Louis
Floress (Plaintiffs) cross-motion for partial summary judgment (Dkt. Nos. 23-24) in this
action brought under the Freedom of Information Act (FOIA), 5 U.S.C. 522.
As set forth in the Memorandum of Law in Support of Defendants Motion for Summary
Judgment (Defendants Memorandum), Plaintiff cannot demonstrate that he is entitled to any
relief because no records responsive to his multi-part FOIA request could be located.
Consequently, the DOJ has not improperly withheld responsive records and is entitled to
judgment as a matter of law dismissing this action.
In the Memorandum in Support of Plaintiffs Motion for Partial Summary Judgment and
in Opposition to Defendants Motion for Summary Judgment (Plaintiffs Memorandum), 1
Plaintiff maintains that the DOJ is not entitled to summary judgment because it has not provided
all of the records that he requested and that he is entitled to partial summary judgment. See Pl.
Mem. at 8. Plaintiff argues that: (1) DOJ has not adequately explained why the Executive Office
for the United States Attorneys (EOUSA) did not promptly respond to his FOIA request; (2)
the EOUSAs response was inadequate and should have either (a) not included a production of
the Choi prosecution file because it was a red-herring or (b) included more documents or
information from the Choi prosecution file; (3) the agency declarations of Princina Stone and
Karin Kelly are insufficient to support Defendants motion because Plaintiff hypothesizes that
these two individuals are temporary employees who lack sufficient knowledge and because the
1

Plaintiffs cross-motion did not include a notice of motion as required by Local Civil
Rule 7.1(a)(1) of the Local Rules of the United States District Courts for the Southern and
Eastern Districts of New York.
1

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 6 of 23 PageID #: 1385

declarations do not include specific references to each and every subcategory of Plaintiffs FOIA
request; (4) Defendants voluntary productions, which were made in an effort to meet and confer
with Plaintiff were insufficient and conducted in bad faith; and (5) Plaintiff is entitled to
judicial records under the First Amendment.

As discussed below, Plaintiffs arguments,

however, lack merit both legally and factually. Moreover, Plaintiff fails to raise a genuine issue
of material fact that would preclude granting summary judgment to Defendant.
Simply put, the United States Attorneys Office for the District of Columbia (USAODC), the DOJ component to which Plaintiffs FOIA request was sent, has no records responsive
to Plaintiffs FOIA request and is not withholding responsive documents. Moreover, following a
voluntary search, the DOJ Criminal Divisions Office of the Assistant Attorney General
(OAAG), another DOJ component that did not receive a FOIA request, did not locate any
written guidelines regarding the prosecution of activists. See Defendants Reply Statement
pursuant to L. Civ. R. 56.1 (56.1 Reply Stmt.) 79, 81. Further, any requests beyond those
set forth in Plaintiffs April 30, 2013 FOIA request are not properly before the Court.
Accordingly, this Court should deny Plaintiffs cross-motion, grant Defendants motion
for summary judgment, and dismiss all claims against Defendant in their entireties.
ARGUMENT

I.

PLAINTIFFS ARGUMENTS REGARDING EVENTS PRE-DATING THE LAWSUIT DO NOT

WITHSTAND DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Plaintiff objects to how his FOIA request dated April 30, 2013 was processed. See Pl.

Mem. at 2-4, 33-36. Plaintiff maintains that the DOJ wrongly claims that it lost his FOIA
request and closed it out. Pl. Mem. at 33-36. Plaintiff also submits that, prior to his filing this
action, EOUSA did not inform him or his then counsel that a copy of his FOIA request could not
be located in its files. See 56.1 Reply Stmt. 17. Plaintiff also appears to contest EOUSAs
2

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 7 of 23 PageID #: 1386

assignment of an internal administrative FOIA number to his request that Plaintiff posits is
different than one assigned in 2013. See Pl. Mem. at 33-34. None of these complaints provide a
basis for denying Defendants motion for summary judgment or granting partial summary
judgment to Plaintiff. The only relief available to Plaintiff under the FOIA is an order directing
the DOJ to release any responsive records that were improperly withheld.

See 5 U.S.C.

552(a)(4)(B).
First, that mere fact that USAO-DC personnel may have been sent or copied on an email
from Plaintiff regarding a FOIA request sent to EOUSA does not mean that USAO-DC was
under any independent obligation to follow up with EOUSA regarding that request. See 5 U.S.C.
552(a)(3)(A) (requiring a FOIA request to reasonably describe the records and to be made in
accordance with the agencys published rules); 28 C.F.R. 16.3(a)(1) and Appendix I to Part 16
(DOJ regulations identifying FOIA offices for the Departments components); see also 5 U.S.C.
552(a)(4)(B) (a court may only enjoin an agency from withholding agency records and order
the production of agency records improperly withheld from a person who has made a proper
written request for records). The Assistant U.S. Attorney (AUSA) in the USAO-DC was not
under an obligation to ensure that, despite Plaintiffs representation that he submitted a FOIA
request to EOUSA, that DOJ component (EOUSA) actually received that FOIA request. 2 FOIA
was not intended to reduce government agencies to full-time investigators on behalf of
requesters.

Amnesty Intl USA v. Cent. Intelligence Agency, 728 F. Supp. 2d 479, 497

The email dated April 30, 2013, simply states that Plaintiff had submitted [his] FOIA
request today by certified mail, return receipt requested. See Declaration of Assistant U.S.
Attorney Rukhsanah Singh dated Nov. 23, 2015 (Singh Decl.), Ex. F. Although Plaintiff takes
issue with Exhibit F, stating that there is no indication that there was an attachment to the email
(Pl. Mem. at 35), Defendant has not taken the position that Plaintiff did not include as an
attachment a copy of the FOIA request to his April 30, 2013 email. In any event, the presence or
absence of an attachment is immaterial because the email was not a valid FOIA request, and
Plaintiff ultimately did submit a valid FOIA request.
3

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 8 of 23 PageID #: 1387

(S.D.N.Y. 2010) (internal quotation and editing marks and citations omitted).

Indeed, the

EOUSA, not an individual AUSA, is the entity responsible for fielding FOIA requests sent to
individual U.S. Attorneys Offices throughout the country. Peralta v. United States Attorneys
Office, 136 F.3d 169, 172 (D.C. Cir. 1998). Here, USAO-DC had previously duly informed
Plaintiff that his request must be directed to EOUSA. See Singh Decl., Ex. E.
Second, in its May 20, 2014 correspondence, the Office of Information Policy (OIP)
responded to Plaintiffs attorney regarding Plaintiffs appeal of the constructive denial of his
FOIA request dated April 30, 2013. 3 See 56.1 Reply Stmt. 15-17; Singh Decl., Ex. G-H.
Enclosed in the correspondence was a copy of an OIP memorandum to the EOUSA
FOIA/Privacy Act Unit stating that OIP was unable to adjudicate this appeal due to EOUSAs
failure to locate the request file[] and asking EOUSA to reopen the request and process it. See
56.1 Stmt. 17; Singh Decl., Ex. H. Plaintiff had a copy of the OIPs May 20, 2014 letter and
the enclosed Administrative Appeal Remand Memorandum before Defendant filed any
response to the original Complaint, as reflected in his website posting that was published on May
16, 2016.

See http://www.scribd.com/doc/265550142/2014-05-20-USDOJ-FOIA-Biller-Lt-

Daniel-Choi (posting May 20, 2014 letter with attachment). As such, Plaintiff would have been
aware that the EOUSA could not locate the FOIA request prior to the filing of Defendants
Answer.
Third, EOUSAs assignment of a new administrative number to Plaintiffs FOIA request
after remand from OIP has no bearing on whether Plaintiff is entitled to relief under the FOIA.
See Pl. Mem. at 33. Indeed, an agency must assign an individualized tracking number to a FOIA
3

Defendant notes that the December 6, 2013 letter from Plaintiffs attorney was
delivered via email only and did not indicate that any enclosures were included. See Singh
Decl., Ex. G. The cover email from Plaintiffs attorney did not include the FOIA request as an
attachment. See Declaration of Louis Flores dated Jan. 5, 2016 (Flores Decl.), Ex. A.
4

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 9 of 23 PageID #: 1388

request. See 5 U.S.C. 552(a)(7)(A). Plaintiff claims that the assignment of a new number was
an attempt to ringfence the DOJ officials who did not answer the first request so they would
not have to provide declarations about their acts of bad faith. Pl. Mem. at 33. However, this was
not the motivation for the assignment of a new number. The EOUSA has not attempted to hide
its actions. It is undisputed that, as of May 2014, when Plaintiffs FOIA request was remanded
by OIP, the EOUSA had not processed the request. See 56.1 Reply Stmt. 14-17. Plaintiff has
not, and cannot, demonstrate that the EOUSAs assignment of a new administrative number has
any bearing on Defendants arguments concerning its response to the FOIA request.
Finally, delay in responding to a FOIA request does not create a cause of action under the
FOIA where one does not otherwise exist. Under the FOIA, a court is authorized to enjoin an
agency only from improperly withholding agency records from a person who has made a proper
written request for the records. 5 U.S.C. 552(a)(4)(B); see 5 U.S.C. 552(a)(3)(A). See also
Muset v. Ishimaru, 783 F. Supp. 2d 360, 372 (E.D.N.Y. 2011) (Vitaliano, J.) (finding a claim
under the FOIA to be moot upon receipt of requested documents, despite delay in response). In
addition, administrative errors do not warrant a finding of bad faith. See Garcia v. U.S. Dept of
Justice, 181 F. Supp. 2d 356, 367 (S.D.N.Y. Jan. 14, 2002) (granting defendants motion for
summary judgment and rejecting argument that initial failure to locate responsive documents
was the result of bad faith) (citing SafeCard Serv., Inc. v. Sec. Exch. Commn, 926 F.2d 1197,
1202 (D.C. Cir. 1991) (finding apparent mix-up and a small collection of other technical
failings support neither the allegation that the SECs search procedures were inadequate, nor an
inference that it acted in bad faith)); Simon v. United States, 587 F. Supp. 1029, 1031-32
(D.D.C. 1984) (finding agencys failure to comply with statutory deadlines does not
automatically imply that suit was necessary).

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 10 of 23 PageID #: 1389

Accordingly, Plaintiff has not raised any issue of material fact regarding the procedural
aspects of the processing of his FOIA request that would provide a basis for denying Defendants
motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.

Factual disputes that are irrelevant or

unnecessary will not be counted.).

II.

PLAINTIFF HAS NOT SHOWN THAT EOUSA DID NOT ADEQUATELY RESPOND TO HIS
FOIA REQUEST
In his opposition and cross-motion memorandum, Plaintiff challenges EOUSAs response

to his FOIA request. Contrary to Plaintiffs assertions otherwise, however, EOUSA provided an
adequate response following reasonable searches, and Plaintiff has not rebutted the good faith
presumption attaching to the declarations of Princina Stone and Karin Kelly.
A.

EOUSAs Response to Plaintiffs FOIA is Neither a Glomar Response Nor a

No Number, No List Response

Plaintiff argues that EOUSAs response is an unlawful Glomar, 4 No Number, No List

response. Pl. Mem. at 12-15. Plaintiff, however, is incorrect. An agency will provide a Glomar
response, and refuses to confirm or deny the existence of records, where to answer the FOIA
inquiry would cause harm cognizable under a FOIA exception. Wilner v. Natl Sec. Agency,
592 F.3d 60, 68 (2d Cir. 2009). A no number, no list response acknowledges the existence of
documents responsive to the request, but neither numbers nor identifies them by title or
description. N.Y. Times Co. v. United States Dept of Justice, 756 F.3d 100, 105 (2d Cir. 2014).
These types of responses, simply, are not at issue here. The EOUSA responded that there were
4

The terms Glomar response and glomarization, which are used to describe a
neither confirm nor deny response, are derived from the case of Phillippi v. Central
Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976), in which the FOIA requestor sought
records related to the efforts of the Central Intelligence Agency to prevent the media from
reporting on the activities of a vessel named the Hughes Glomar Explorer.
6

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 11 of 23 PageID #: 1390

no records responsive to Plaintiffs FOIA request and made clear it is not withholding any
responsive records. See Singh Decl., Ex. I. Thus, Plaintiffs arguments concerning Glomar and
No Number, No List responses are inapposite.
B.

EOUSA and USAO-DC Conducted Reasonable Searches

As demonstrated in Defendants Memorandum at pages seven to fourteen, and the

supporting declarations, EOUSA and USAO-DC conducted proper, reasonable searches for
records responsive to Plaintiffs request. Notably, Plaintiff does not appear to contest that
EOUSA appropriately searched the files of USAO-DC for records responsive to his FOIA
request. Rather, asserting that responsive records must exist (see Pl. Mem. at 15), Plaintiff
argues that the agency declarations do not establish that a reasonable search was performed
because the declarants were, in Plaintiffs view, temp employees or junior staff and were not
DOJ management or senior supervisors. See Pl. Mem. at 25-30. Plaintiff further argues that
EOUSA should have itemized each FOIA request section and subsection in describing its search.
See Pl. Mem. at 26.
First, the Declarations submitted by Defendant were appropriately made by individuals
with personal knowledge of the searches that were conducted for records responsive to Plaintiffs
FOIA request, as required by Rule 56(c)(4) of the Federal Rules of Civil Procedure. See, e.g.,
Fed. R. Civ. P. 56(c)(4); Carney v. United States Dept of Justice, 19 F.3d 807, 814 (2d Cir.
1994) (An affidavit from an agency employee responsible for supervising a FOIA search is all
that is needed to satisfy [former] Rule 56(e)[.]); Davis v. United States Dept of Homeland Sec.,
No. 11-CV-203, 2013 WL 3288418, at *7-8 (E.D.N.Y. June 27, 2013) (Ross, J.) (recognizing
that [t]he Second Circuit has held that, for summary judgment purposes, the agency should
submit an affidavit from the agency employee responsible for supervising the FOIA search and
holding declaration that states declarant is responsible for processing FOIA requests in agency
7

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 12 of 23 PageID #: 1391

with description of search methods based on personal knowledge was sufficient to support
agencys motion for summary judgment). 5 Both Ms. Kelly and Ms. Stone declared that they are
familiar with their respective offices procedures and files, and are personally familiar with
Plaintiffs FOIA request and the search conducted in response thereto. See Stone Decl. 2-3;
Kelly Decl. 2-3. Indeed, Ms. Kelly elaborated in detail as to her personal involvement with
respect to searching for records responsive to Plaintiffs FOIA request. See Kelly Decl. 8-24.
Second, an umbrella declaration from DOJ management or senior supervisors is not
required and would impose a burden beyond what is required under Rule 56 and the courts in
FOIA cases. See, e.g., Carney, 19 F.3d at 814.
Third, EOUSA was not required to itemize each and every category and subcategory of
requests in Plaintiffs FOIA request in its response as Plaintiff contends. See Pl. Mem. at 26.
Indeed, the FOIA requires only that an agency inform the requestor of any decision to withhold
responsive records, the basis thereof, and any appeal rights. 5 U.S.C. 552(a)(6)(A)(i); see also
Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995) (finding agency not required to
produce Vaughn index until ordered by a court). The EOUSAs response appropriately notified
Plaintiff that no responsive records were located. See Singh Decl., Ex. I. Further, Ms. Kellys
declaration is still entitled to a good faith presumption even though she does not expressly
itemize and quote each and every subcategory of Plaintiffs FOIA request.

Ms. Kelly

specifically addressed the four categories of Plaintiffs request and detailed the search related to
each one. See Kelly Decl. 8-24; see also 56.1 Reply Stmt. 8.1.
Finally, Plaintiff contends that the AUSA in the USAO-DC improbably claimed that
she did not have the United States Attorneys Manual (USAM), and attempts to challenge the
5

As required by Local Civil Rule 7.2, copies of decisions cited herein that are
unreported or reported exclusively on computerized databases are being provided to Plaintiff.
8

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 13 of 23 PageID #: 1392

sufficiency of Ms. Kellys declaration on the grounds that it states that the AUSA in the USAODC advised that she did not have a manual to refer to regarding prosecution of activists in
response to Plaintiffs FOIA request numbered I.1.C. Pl. Mem. at 30 (citing Kelly Decl. 18).
That subsection of Plaintiffs request sought limits, rules, procedures, or other guidelines that
must or should be taken into consideration before, during, and after the prosecution of activists to
minimise [sic] the interference with First Amendment rights, other Constitutional rights, civil
liberties, and other civil rights of activists. See Singh Decl. Ex. A. Plaintiff argues that the
AUSA must have had the USAM, which references demonstrations and, therefore, must be
referred to when prosecuting activists. Pl. Mem. at 32-33. However, Subsection I.1.C. of
Plaintiffs request, like many other subsections, sought records specific to the prosecution of
activists. See Singh Decl. Ex. A. The DOJ does not have guidelines specifically relating to the
prosecution of activists. 56.1 Reply Stmt. 79, 81; see Singh Decl., Ex. L. Contrary to
Plaintiffs implied assertion that certain sections of the USAM might be responsive to his request
and should have been provided by the AUSA (see Pl. Mem. at 30), 6 the USAM provision does
not include guidelines about the prosecution of activists. See Flores Decl., Ex. G at Tab D.
Rather, these sections relate to violations or potential violations of 18 U.S.C. 970, which is
entitled Protection of property occupied by foreign governments. Flores Decl., Ex. G at Tab
D. As a result, the USAM does not undermine the adequacy of the search.
In any event, at all relevant times, Plaintiff had access to the USAM, which is accessible
via the DOJs public website at http://www.justice.gov/usao/resources/foia-library. See 5 U.S.C.
552(a)(2) (requiring certain agency materials to be published and publicly available). The DOJ

The USAM sections were voluntarily provided to Plaintiff on October 13, 2015. See
Singh Decl., Ex. K.
9

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 14 of 23 PageID #: 1393

is not required to produce the USAM in response to specific FOIA requests. See 5 U.S.C.
552(a)(3)(A) (exempting such materials).
Plaintiff also claims that responsive documents must exist but are being kept secret. Pl.
Mem. at 15-18. However, Plaintiff cites no credible support for his supposition, and merely
repeats his unavailing Glomer/No Number, No List argument. Plaintiffs [s]peculation that
other documents exist, without more, does not undermine the finding that the agency conducted a
reasonable search. Garcia, 181 F. Supp. 2d at 366; see also Carney, 19 F.3d at 813 (rejecting
plaintiffs challenge to agencys declaration, and denying request for discovery on Rule 56
motion, because plaintiffs argument that the DOJ failed to acknowledge the existence of
records responsive to his FOIA request was grounded in mere speculation).
Accordingly, Plaintiff has not, and cannot, rebut the presumption of good faith attached
to the declarations of Ms. Stone and Ms. Kelly.
C.

EOUSA Provided Non-Responsive Documents in Good Faith

USAO-DCs searches revealed no records responsive to Plaintiffs FOIA request. 56.1

Reply Stmt. 23, 60. However, although not required by the FOIA, EOUSA exercised its
discretion and provided Plaintiff with non-responsive, publicly-available documents concerning
the prosecution of Daniel Choi that were located in USAO-DCs files. 7 56.1 Reply Stmt. 5458, 61. Plaintiff challenges the provision of these materials as not responsive and constituting a
red herring, and because EOUSA did not provide a Vaughn index for any nonpublic
documents that were a part of the Choi prosecution file. 8
7

Defendant reiterates that the discretionary provision of these Choi prosecution-related

materials and the voluntary disclosures made after the September 16, 2015 conference were not
made in lieu of or to satisfy any obligations imposed by the FOIA.
8
Plaintiff also complains that there were publicly-filed documents missing from the nonresponsive material that were provided by the EOUSA. As Defendant has explained, there are
other documents relating to the Choi prosecution that are publicly available on PACER. See
10

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 15 of 23 PageID #: 1394

First, Plaintiff has admitted that the documents from the Choi prosecution were not
responsive to his FOIA request. See Dkt. No. 12 (Letter from Plaintiff dated Sept. 3, 2015 to the
Court) ([T]he documents produced were non-responsive to the FOIA Request.). Although
EOUSA does not have the discretion to determine whether to comply with FOIA, it does have
the discretion to make voluntary disclosures of nonresponsive information, which is what it did
here. See Greenberg v. U.S. Dept of Treasury, 10 F. Supp. 2d 3, 23 & n.26 (D.D.C. 1998)
(Agencies are generally free to make discretionary disclosures of information . . . . and noting
that the court labeled the disclosure as discretionary because the agency was under no
obligation to make such a disclosure).
Nevertheless, Plaintiff now argues that two documents referenced in that production, and
later voluntarily provided to him on October 13, 2015, are responsive to his FOIA request:
Government Exhibit 24 from the Choi prosecution, referred to as Cpt. Guddemis November
22 email, and Government Exhibit 25 from the Choi prosecution, referred to as Myers memo
(email). See Pl. Mem. at 22; see also Singh Decl., Ex. K at 2-3 (discussing documents); Flores
Decl., Ex. G at Tabs A, B. These documents, however, are not responsive to Plaintiffs FOIA
request. Government Exhibit 24, an email chain, involving individuals at the National Park
Service (NPS), the United States Park Police, the United States Secret Service, and the United
States Capitol Police, was simply a notification of a possible Get Equal demonstration at the
White House and certain Senate Offices. See Singh Decl., Ex. K at 2-3; Flores Decl., Ex. G at
Tab B. Government Exhibit 25 is correspondence between an individual at the Solicitors

Def. Mem. at 16 n.6. Defendant, as a courtesy, has repeatedly offered to provide to Plaintiff
documents even though they are available on PACER, and has further offered to inquire if it
would be possible to produce a copy of the trial exhibits in that prosecution. Plaintiff has
rejected those offers and taken the position that EOUSA should not have made the discretionary
release because it was a red herring. See Singh Decl., Ex. M at 9.
11

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 16 of 23 PageID #: 1395

Office of the United States Department of the Interior and individuals at NPS; it did not copy any
DOJ employee, and does not constitute DOJ guidance as to the prosecution of activists. See
Singh Decl., Ex. K at 2; Flores Decl., Ex. G at Tab A. Contrary to Plaintiffs conclusory
assertions (see Pl. Mem. at 35), as can be seen from the Choi court file, no redactions were made
to these two documents when they were provided to Plaintiff. See United States of America v.
Farrow et al., No. 10-mj-00739-JMF (D.D.C.), Dkt. Nos. 64-1, 82-1; Declaration of Assistant
U.S. Attorney Rukhsanah Singh in Opposition to Plaintiffs Motion under Rule 52 and Demand
for Sanctions and Penalties dated Feb. 12, 2016 (Singh Reply Decl.) 10.
Second, an agency is not required to prepare a Vaughn index for documents that are not
responsive to a FOIA request. See Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 12 F.
Supp. 3d 100, 114 (D.D.C. 2014). A Vaughn index is an itemized explanation of an agencys
reasons for withholding documents. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir.
1973); see also Halpern v. Fed. Bureau of Investigation, 181 F.3d 279 (2d Cir. 1999). In this
case, Defendant has not withheld responsive records. Moreover, in the event that the Choi
prosecution file is found to have been responsive to Plaintiffs FOIA request, Plaintiff has not
exhausted his administrative remedies as to any challenge to any nonpublic, third-party materials
contained in that file that are subject to the Privacy Act; and, therefore, any argument concerning
a Vaughn index is not properly before the Court. See Barouch v. U.S. Dept of Justice, 962 F.
Supp. 2d 30, 68 (D.D.C. 2013).
Accordingly, Plaintiffs accusations of bad faith as to the release of the Choi prosecution
materials fail as a matter of fact and law. See Greenberg, 10 F. Supp. 2d at 23.

III.

THE COURT SHOULD DENY PLAINTIFFS REQUEST FOR DISCOVERY

In opposing Defendants motion for summary judgment, Plaintiff seeks discovery in the

form of interrogatories and depositions. See Pl. Mem. at 37-41. That request should be denied.
12

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 17 of 23 PageID #: 1396

Among other things, Plaintiff seeks to challenge the credibility of Defendants witnesses
with respect to EOUSA not timely responding to his FOIA request. See Pl. Mem. at 41.
However, the only issue before the Court is whether the DOJ improperly withheld responsive
records in its response to Plaintiffs FOIA request. Discovery about the mechanics of the
processing of the request beyond the scope and nature of the searches that were conducted would
not be relevant and would not aid the Court in assessing whether it must order the DOJ to release
improperly withheld records responsive to Plaintiffs request. See 5 U.S.C. 522(a)(4)(B).
Such discovery would merely delay resolution of the material issues in this case. Further, to the
extent that Plaintiff seeks discovery to challenge the adequacy of the searches conducted for
responsive records, discovery is unnecessary because, as discussed above, the agency
declarations are facially sufficient, and Plaintiff has failed to make a showing of bad faith. See
Carney, 19 F.3d at 812-13.
Virtually since the inception of this action, Plaintiff has sought to expand his FOIA
request beyond the records originally sought and to obtain discovery. However, litigation is not
a vehicle for endless additional FOIA requests. Biberman v. Fed. Bureau of Investigation, 528
F. Supp. 1140, 1144 (S.D.N.Y. 1982) (quotation and editing marks and citation omitted); see
also Kowalczyk v. Dept of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (Requiring an additional
search each time the agency receives a letter that clarifies a prior request could extend
indefinitely the delay in processing new requests.).
At a conference on September 16, 2015, Magistrate Judge Mann denied Plaintiffs
request for discovery, and did not require Defendant to search Main Justice or to produce
documents and information responsive to all 29 requests from Plaintiff in his September 16,
2015 index. See Dkt. No. 14 (The Court sustains the governments objection that discovery

13

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 18 of 23 PageID #: 1397

ordinarily is not available in FOIA action.); Singh Decl., Ex. J. Indeed, some of Plaintiffs
requests in his index related to matters that post-dated his FOIA request. See, e.g., Singh
Decl., Ex. J at 1 (request no. 01). Plaintiff did not seek reconsideration of, or timely file any
objections to, the Courts order denying discovery. See Fed. R. Civ. P. 72(a); L. Civ. R. 6.3.
As discussed above, despite not being obligated to do so by the FOIA, Defendant
voluntarily provided to Plaintiff, as a courtesy, materials from the USAM and other publiclyavailable sources. The materials were not responsive to Plaintiffs FOIA request, and Defendant
was not obligated to produce these materials pursuant to the FOIA or the Courts September 16,
2015 Order. See Pub. Investors Arbitration Bar Assn v. U.S. Sec. Exch. Commn, 930 F. Supp.
2d 55, 72 (D.D.C. 2013) ([I]t is elementary that an agencys decision to withhold nonresponsive material is not a violation of the FOIA.), affd, 771 F.3d 1 (D.C. Cir. 2014). Yet,
Defendant provided those documents in a good faith effort to attempt to resolve whatever
disputes Plaintiff felt remained following EOUSAs response to his FOIA request. Contrary to
Plaintiffs arguments, Defendant was not required to engage in discovery, even if Plaintiff has
now restyled his discovery requests as due diligence. See Pl. Mem. at 7-8.
In an effort to divert the Court from the issue before it (i.e., whether Defendant
improperly withheld responsive records when it responded to Plaintiffs FOIA request), Plaintiff
raises numerous issues with the parties meet and confer process and Defendants voluntary
disclosures following the September 16, 2015 Order. Plaintiff points out that counsel sent him
the October 13, 2015 cover letter via email without enclosures, which were sent via first-class
certified mail. See Pl. Mem. at 6; Singh Decl., Ex. K. The enclosures were not attached to the
email due to file size limitations, and Plaintiff did not request the enclosures be sent via email.
Singh Reply Decl. 7-8, 14.

Plaintiff also takes issue that the parties had a telephone

14

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 19 of 23 PageID #: 1398

conference before he received the hard copy of the October 12, 2015 letter with the enclosures.
Pl. Mem. at 6. However, the telephone conference took place on October 16, 2015, and occurred
at Plaintiffs request, when counsel offered either October 16 or 19, 2015 as possible dates for
the telephone conference. Singh Reply Decl. 6, 9.
Plaintiff contends that during the October 16, 2015 telephonic discussion, he 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. Mem. at 6. Plaintiff argues that this was a material misrepresentation. There
simply was no misrepresentation. See Singh Reply Decl. 12. After the September 16, 2015
conference with the Court, DOJ voluntarily agreed to search the Criminal Division at Main
Justice as Magistrate Judge Mann had encouraged. See Dkt. No. 14. In its letter dated October
13, 2013, Defendant informed Plaintiff that the OAAG was the office at Main Justice most
likely to have any written guidelines concerning the prosecution of activists, and that it had
voluntarily agreed to conduct a search for any such written guidelines. Singh Decl., Ex. K at 1-2.
In a letter dated October 15, 2015, which was emailed and mailed to Plaintiff, Defendant
informed Plaintiff that the OAAG had conducted a voluntary search and that no guidelines
relating to the prosecution of activists had been located. Singh Decl., Ex. L. During the October
16, 2015 telephone conference between Plaintiff and counsel, counsel reiterated this information,
and Plaintiff inquired whether any other component of DOJ would likely have guidelines
regarding the prosecution of activists. Singh Reply Decl. 12. Counsel stated there were none.
Singh Reply Decl. 12. Indeed, as the OAAG is responsible for formulating and implementing
criminal enforcement policy, it was the appropriate Main Justice component to involve in the
voluntary search. Nevertheless, Plaintiff now claims that the Criminal Division in the DOJ Civil

15

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 20 of 23 PageID #: 1399

Rights Division would likely have information responsive to his FOIA request. 9 See Pl. Mem. at
6-7. However, even if the Civil Rights Division did have records responsive to Plaintiffs FOIA
request dated April 30, 2013 to the EOUSA (the subject of this action), Plaintiff cannot now
spread his FOIA request to EOUSA to impliedly encompass the Civil Rights Division.
Plaintiff also argues that DOJ did not provide a declaration regarding the search
conducted by the OAAG for guidelines regarding the prosecution of activists. A declaration
from OAAG was not required because there was no FOIA request directed to that DOJ
component, and the search that the OAAG conducted was done voluntarily as part of an effort to
resolve this action without further litigation. Simply, the adequacy of that search is not before
this Court, and a declaration was not required. Cf. Carney, 19 F.3d at 812.
Accordingly, Plaintiff cannot broaden his FOIA request by now seeking new records that
were not requested in the April 30, 2013 FOIA request to the EOUSA or obtain discovery. See
Gillin v. Internal Revenue Serv., 980 F.2d 819, 823 n.3 (1st Cir. 1992). Plaintiff has not shown
that Defendant engaged in bad faith in voluntarily providing him with additional documents that
were not responsive to his FOIA request. 10
In addition, Plaintiff has failed to demonstrate a pattern and practice of violating the
FOIA that would justify discovery. See, e.g., Pl. Mem. at 16; 56.1 Reply Stmt. 84-93. As an
initial matter, the Second Circuit has not recognized or articulated the inquiry relevant to a
pattern or practice claim in the FOIA context. See Pietrangelo v. U.S. Army, 334 F. Appx 358,
9

Plaintiff allegedly sent a FOIA request dated October 20, 2015 to the Civil Rights
Division. See Singh Decl., Ex. M.
10
Even if Defendant subsequently produced records responsive to Plaintiffs FOIA
request throughout this litigation, such production would not give rise to a bad faith claim. See
Republic of New Afrika v. Fed. Bureau of Investigation, 645 F. Supp. 117, 122 (D.D.C. 1986)
(denying plaintiffs claim that FBI engaged in bad faith where the FBI did not process certain
files until ordered by the court because the FBI had a colorable, though erroneous, basis in law
for its initial withholding).
16

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 21 of 23 PageID #: 1400

360 (2d Cir. 2009). Notably, Plaintiff does not explain his claim in Plaintiffs Memorandum, but
apparently relies on news and internet publications cited in his Amended Complaint and Dispute
and Answer to Defendants Local Civil Rule 56.1 Statement, concerning DOJ-wide delays in
processing of FOIA requests. See, e.g., 56.1 Reply Stmt. 84-93.
However, Plaintiffs FOIA request to the EOUSA was processed, and EOUSA sent him a
response. Even if a pattern and practice claim were cognizable in this jurisdiction, Plaintiff has
not identified anything more than delay in the processing his FOIA request. The FOIA does not
provide a remedy, aside from providing for constructive exhaustion that would permit the filing
of a complaint with a court, for an agencys inability to timely respond to a FOIA request. See 5
U.S.C. 552(a)(4)(B) (setting forth scope of courts authority), 552(a)(6)(C) (providing for
constructive exhaustion).

Plaintiff has already obtained the benefit of the constructive

exhaustive provision.
In sum, Plaintiffs request for discovery should be denied.

IV.

PLAINTIFF FAILS TO STATE A CLAIM FOR BAD FAITH

Plaintiffs Memorandum is rife with accusations of bad faith. As set forth in Defendants

Memorandum in Opposition to Plaintiffs Cross-Motion under Rule 52 and Demand for

Sanctions and Penalties, 11 the relevant portions of which are incorporated herein, Plaintiff cannot
articulate any claim of bad faith or misrepresentations.

V.

PLAINTIFF CANNOT STATE

RIGHTS

CLAIM

FOR A

VIOLATION

OF

HIS FIRST AMENDMENT

Plaintiff argues that his First Amendment right to engage in free speech 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
11

In addition to his cross-motion for partial summary judgment, Plaintiff has filed a
separate cross-motion under Rule 52 and demand for sanctions and penalties. (Dkt. No. 25).
17

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 22 of 23 PageID #: 1401

face vindictive prosecution if citizens engage in civil activities by acting as activists to pressure
the government for reform. Pl. Mem. at 40. Plaintiff also appears to argue that he is entitled to
judicial records under the First Amendment, which, presumptively, would include guidelines
used by the DOJ to prosecute activists. See, e.g., Pl. Mem. at 11, 12, 24.
The First Amendment to the United States Constitution protects the freedom to speak or
publish by an individual or the press. See U.S. Const. amend. I. The First Amendment provides
a narrow . . . right of access to information[,] which does not extend to non-judicial
documents that are not part of a criminal trial. Ctr. for Natl Sec. Studies v. U.S. Dept of
Justice, 331 F.3d 918, 934 (D.C. Cir. 2003); see in re N.Y. Times Co. to Unseal Wiretap &
Search Warrant Materials, 577 F.3d 401, 409 (2d Cir. 2009) (recognizing that there is only a
qualified constitutional right of access to judicial records); see also Sec. Exch. Commn v. Am.
Internatl Group, 712 F.3d 1, 3, 5 (D.C. Cir. 2013) (noting not all documents filed with courts
are judicial records and finding SEC reports were not judicial records subject to disclosure
under the First Amendment because the reports were not aspects of court proceedings and have
no bearing on monitoring judicial conduct (internal quotation marks omitted)).
Here, it is unclear what judicial records Plaintiff seeks. As discussed above in footnote
8, despite their not being records responsive to Plaintiffs FOIA request, Defendant has offered
to provide to Plaintiff, without cost to him, copies of the documents filed with the court in the
Choi prosecution, an offer which Plaintiff has declined.
Furthermore, Plaintiff has not articulated any basis to support his contention that
Defendant has somehow limited or censored his speech under the First Amendment.
The Court should reject any access to judicial records claims that Plaintiff is asserting
under the First Amendment.

18

Case 1:15-cv-02627-JG-RLM Document 27 Filed 02/12/16 Page 23 of 23 PageID #: 1402

CONCLUSION
For the foregoing reasons, as well as those set forth in Defendants Memorandum in
Support of its Motion for Summary Judgment, Defendant respectfully requests that this Court
dismiss Plaintiffs Amended Complaint and all claims asserted against it therein, enter summary
judgment in Defendants favor, deny Plaintiffs cross-motion for summary judgment and for
discovery, and grant Defendant any such other and further relief as this Court may deem proper
and just.

Dated: Brooklyn, New York

February 12, 2016
ROBERT L. CAPERS
United States Attorney
Eastern District of New York
Attorney for Defendants
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201
By:

19

s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant United States Attorney
(718) 254-6498
rukhsanah.singh@usdoj.gov