2015-09-23 flores v usdoj - amended complaint (foia lawsuit) (stamped)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

�� LOUIS FLORES, Plaintiff, v. �UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

AMENDED

COMPLAINT FOR INJUNCTIVE RELIEF

Case No. : 15-‐CV-‐2627

(Gleeson, J.)(Mann, R.L.)

INTRODUCTION

1. Plaintiff Louis Flores (“Flores”) brings this action against Defendant

United States Department of Justice (“DOJ”) to compel compliance with the Freedom

of Information Act, 5 U.S.C. § 552 (“FOIA”), for injunctive and other appropriate

relief, seeking the immediate processing and release of agency records requested by

Plaintiff from Defendant.

2. Plaintiff also seeks compliance with the memorandum dated

January 21, 2009, and authored and signed by United States President Barack

Obama (the “President”), affirming the importance of a "profound national

commitment to ensuring an open Government” (the “President’s FOIA

Memorandum”). See Barack Obama, Memorandum of January 21, 2009 : Freedom of

Information Act (Jan. 26, 2009), 74 Fed. Reg. 4683, http://www.justice.gov/sites/

default/files/oip/legacy/2014/07/23/presidential-‐foia.pdf.

Case 1:15-cv-02627-JG-RLM Document 15 Filed 09/23/15 of 31 PageID #: 137

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3. Plaintiff further seeks compliance with the March 19, 2009, FOIA

guidelines for the Executive Branch issued by Eric Holder, Jr., then the Attorney

General of the United States (“Holder”), reiterating the President's commitment to

honoring FOIA (the “Attorney General's FOIA Guidelines”). According to the

Attorney General’s FOIA Guidelines, Holder wrote, in part, that “I would like to

emphasize that responsibility for effective FOIA administration belongs to all of

us—it is not merely a task to an agency’s FOIA staff. We all must do our part to

ensure open government.” See Eric Holder, Jr., Memorandum for Heads of Executive

Departments and Agencies, Office of the Attorney General (Mar. 19, 2009),

http://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-‐memo-‐

march2009.pdf.

4. On March 27, 2013, Plaintiff submitted an electronic mail (the

“E-‐mail Request”) to Angela George (“George”), a prosecutor with the U.S. Attorney’s

Office for the District of Columbia, seeking records and information related to the

government’s prosecution of Lt. Daniel Choi (“Lt. Choi”). Lt. Choi prominently

exerted political pressure on the U.S. Congress and on the President to overturn the

U.S. military’s formerly discriminatory policy known as “Don’t Ask, Don’t Tell.” See

Liz Halloran, With Repeal Of 'Don't Ask, Don't Tell,' An Era Ends, NPR (Sept. 20, 2011),

http://www.npr.org/2011/09/20/140605121/with-‐repeal-‐of-‐dont-‐ask-‐dont-‐tell-‐

an-‐era-‐ends (noting that, “you had activists like Army Lt. Dan Choi handcuffing

himself to the White House fence, getting in people's faces”) ; William Branigin et al.,

Obama signs DADT repeal before big, emotional crowd, The Washington Post (Dec.

22, 2010), http://www.washingtonpost.com/wp-‐dyn/content/article/2010/12/

22/AR2010122201888.html. After subsequent follow-‐up by the Plaintiff, the


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Plaintiff was directed on April 17, 2013, by Bill Miller, a public information officer

with the U.S. Attorney’s Office for the District of Columbia (“Miller”), to submit a

request to the Executive Office for the United States Attorneys of the DOJ (the

“EOUSA”). As directed, Plaintiff submitted on April 30, 2013, a FOIA request (the

“Request”) to the EOUSA. On April 30, 2013, a courtesy copy of the Request was

sent to by electronic mail to Bill Miller and to George, amongst others.

5. Plaintiff made numerous attempts to communicate with the EOUSA,

principally but not exclusively with Sanjay Sola, a paralegal with the EOUSA,

including, but not limited to, on May 14, 2013 ; June 5, 2013 ; June 18, 2013 ; July 5,

2013 ; July 8, 2013 ; July 9, 2013 ; September 20, 2013 ; and October 17, 2013, to

obtain a response to the Request. When no response was ever received, Plaintiff

engaged counsel to prepare an appeal of the DOJ’s constructive denial of the

Request.

6. On December 6, 2013, the law firm of Willkie Farr & Gallagher LLP,

former counsel to Plaintiff (the “Counsel”), submitted an Appeal of Constructive

Denial of Freedom of Information Act Request (“the Appeal”) to the Office of

Information Policy of the DOJ (the “OIP”).

7. After instances of communication between Counsel and the DOJ, the

OIP replied to Counsel on May 20, 2014, informing Counsel that the Request was

being remanded by the OIP to the EOUSA “for a search for responsive records,”

adding 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).”


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8. For over two years,, neither of the U.S. Attorney’s Office, the EOUSA,

the OIP, nor the DOJ (collectively, the “DOJ components”) released any responsive

records or explained why responsive records were being withheld, each an act of

bad faith. It was only after Plaintiff filed the original Complaint in this case that the

EOUSA provided, on behalf of the U.S. Attorney’s Office for the District of Columbia, a

response to the Request (the “FOIA Response”). When the EOUSA prepared the

FOIA Response, the EOUSA : (i) claimed that no responsive records were found in

the U.S. Attorney’s Office for the District of Columbia and (ii) admitted that the FOIA

Response being provided to Plaintiff was nonresponsive to the Request.

Notwithstanding, once Plaintiff received and reviewed the FOIA Response, Plaintiff

noted that the FOIA Response principally consisted of an incomplete copy of the

pleadings in the government’s prosecution case against Lt. Choi. Furthermore,

Plaintiff found references in the FOIA Response to the kinds of records Plaintiff had

been requesting but were being denied by the DOJ components. Plaintiff further

alleges bad faith conduct on the part of the DOJ components, in particular the

EOUSA, in deliberately preparing an incomplete FOIA Response, in deliberately

omitting responsive records, and, by virtue of having produced a partial copy of the

pleadings in the government’s case against Lt. Choi, in creating a red herring to

intentionally create confusion surrounding the records that are truly responsive to

the Request.

9. The failure of the DOJ components to process and release

responsive records is of particular concern, because the Request relates to

controversial actions by the government to prosecute activists, including the use of

“prosecutorial overreach” and “vindictive prosecution” in cases against activists, the


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practice of which is a matter of intense and ongoing public debate. Indeed, the

public has no information about the internal mechanisms of the DOJ, which rule or

govern the targeted prosecution of activists. Nor does the public have any

information about how the DOJ balances First Amendment rights, other

Constitutional rights, civil liberties, and other civil rights of activists against charges

that the DOJ brings against activists. The DOJ has separately made public records in

respect of how the DOJ investigates and prosecutes journalists, but no similar

records have been released in respect of activists. The prosecution of activists has

provoked public outrage and calls for legislative reform. See, e.g., Tom Risen, Barrett

Brown's Prison Time Raises Cybersecurity, Journalism Concerns, U.S. News & World

Report (Jan. 23, 2015), http://www.usnews.com/news/articles/2015/01/23/

barrett-‐browns-‐prison-‐time-‐raises-‐cybersecurity-‐journalism-‐concerns ; Justin

Peters, Congress Has a Chance to Fix Its Bad “Internet Crime” Law : It’ll probably blow

it, Slate (Apr. 24, 2015), http://www.slate.com/articles/technology/technology/

2015/04/aaron_s_law_why_it_s_needed_to_fix_the_horrendously_bad_cfaa.html.

The release of records sought by the Request would benefit the public as lawmakers

propose legislative reforms, thereby “likely to contribute significantly to public

understanding of the operations or activities of the government.” See 5 U.S.C. §

552(a)(4)(A)(iii).

10. Plaintiff further seeks relief from prohibitions on his speech in

violation of the First Amendment. The U.S. government prohibits complete speech

about the scope of the government’s conduct as it pertains to how it balances First

Amendment rights, other Constitutional rights, civil liberties, and other civil rights

of activists against charges that the DOJ brings against activists. This framework


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prevents Plaintiff, readers of Plaintiff’s Web sites, the public, and activists from

forming and sharing their own informed perspective about the government’s

conduct. Plaintiff will freely publish records responsive to the Request on the

Internet. Defendant’s position forces Plaintiff to engage in speech that has been

restricted by government officials to incomplete speech that lacks information in the

records sought by the Request filed by Plaintiff under FOIA, and Defendant’s

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 having refused for over two years to answer the Request

and then, once having answered the Request, producing records that were

admittedly nonresponsive to the Request, Defendant provided no authority for its

ability to impose those speech restrictions on other journalists, citizens, or activists,

who are not party to the Request submitted by Plaintiff. Plaintiff’s ability to speak,

meaningfully assemble with other journalists, citizens, or activists, and to discuss

any petition to the government for a redress of grievances are being

unconstitutionally restricted by Defendant’s pattern and practice of denying the

Request and other FOIA requests. These restrictions constitute an unconstitutional

prior restraint and content-‐based restriction on, and government viewpoint

discrimination against, Plaintiff’s right to speak about information of the

government’s conduct, which is of public concern. Plaintiff is entitled under the

First Amendment to be provided complete information about the government’s

conduct—including how the government balances First Amendment rights, other

Constitutional rights, civil liberties, and other civil rights of activists against charges


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that the DOJ brings against activists—and in a means by which Defendant can

account for and explain its unconstitutional speech restrictions.

11. Plaintiff now asks the Court for an injunction requiring the DOJ to

process the Request immediately and to provide records responsive to the Request.

Plaintiff also seeks orders : (i) enjoining Defendant from assessing fees for the

processing of the Request and (ii) assessing penalties and sanctions on the

Defendant for acts of bad faith.

JURISDICTION AND VENUE

12. This Court has both subject-‐matter jurisdiction of the FOIA claim

and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B),

(a)(6)(E)(iii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. §

1331 and 5 U.S.C. §§ 701-‐706. This Court also 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.

13. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B). Plaintiff

resides in this district, and Plaintiff’s speech is being unconstitutionally restricted in

this district.

PARTIES

14. Plaintiff Flores is an openly gay journalist and activist. Flores

advocates for equality and government reform. Flores is also committed to

principles of transparency and accountability in government, and he seeks to ensure

that the American public is informed about the government’s conduct in matters

that affect civil liberties and civil rights.


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15. Defendant DOJ is a department of the executive branch of the

United States government and is an agency within the meaning of 5 U.S.C. §

552(f)(1). The DOJ is headquartered in Washington, D.C., and has possession,

custody, and control of the records to which Plaintiff has requested.

16. Each of the U.S. Attorney’s Office for the District of Columbia, the

EOUSA, and the OIP are components of the DOJ. The U.S. Attorney’s Office for the

District of Columbia is one of 94 districts, which receives advise from the DOJ.

Indeed, “The United States Attorneys serve as the nation's principal litigators under

the direction of the Attorney General.” See Offices of the United States Attorneys :

Mission, U.S. Department of Justice (Nov. 18, 2014), http://www.justice.gov/usao/

mission. According to Miller, the EOUSA is the “official record keeper for the records

maintained in all United States Attorneys’ offices.” According to the Web site of the

OIP, the OIP is “responsible for encouraging agency compliance with the Freedom of

Information Act (FOIA) and for ensuring that the President’s FOIA Memorandum

and the Attorney General's FOIA Guidelines are fully implemented across the

government,” adding that the “OIP also manages the Department of Justice's

obligations under the FOIA.” See Office of Information Policy | About the Office, U.S.

Department of Justice, available at http://www.justice.gov/oip/about-‐office.

FACTUAL BACKGROUND

The Government’s Prosecution of Activists

17. The government prosecutes activists for having expressed their

First Amendment rights to free speech and freedom of assembly. Activists engage in

civic activities to pressure the government for reform. In some instances, the U.S.

Attorney’s Office has been reported to have engaged in “vindictive prosecution,”


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“intimidation and prosecutorial overreach,” and “extraordinary prosecutorial

overkill,” amongst other allegations, in cases against activists.

18. The press has described some of the U.S. Attorney’s Office’s

prosecutions of activists as “vindictive” in nature. See, e.g., Scott Wooledge, Updated:

Judge Allows Lt Dan Choi’s “vindictive prosecution” Defense, Daily Kos (Aug. 31, 2011),

http://www.dailykos.com/story/2011/08/31/1012290/-‐Updated-‐Judge-‐Allows-‐

Lt-‐Dan-‐Choi-‐s-‐vindictive-‐prosecution-‐Defense. Before the nature of the selective

prosecution of Lt. Choi could become public information, prosecutors quashed the

effort to expose the selective prosecution. See Lou Chibbaro Jr., Judge rules against

Choi in ‘vindictive’ prosecution claim, Washington Blade (Oct. 17, 2011),

http://www.washingtonblade.com/2011/10/17/judge-‐rules-‐against-‐choi-‐in-‐

‘vindictive’-‐prosecution-‐claim/.

19. In the case against the late Internet activist Aaron Swartz, the

nature of that prosecution was portrayed in the press to be “rife with intimidation

and prosecutorial overreach.” See Noam Cohen, A Data Crusader, a Defendant and

Now, a Cause, N.Y. Times, Jan. 14, 2003, http://www.nytimes.com/2013/01/14/

technology/aaron-‐swartz-‐a-‐data-‐crusader-‐and-‐now-‐a-‐cause.html.

20. The prosecution of PFC Chelsea Manning could lead to treating

activists, who act as whistleblowers, as traitors. This treatment has been described

as “extraordinary prosecutorial overkill.” See Amy Goodman & Glenn Greenwald,

Prosecutor Overreach Could Turn All Whistleblowing into Treason, Democracy Now

(March 5, 2013), http://www.democracynow.org/2013/3/5/glenn_greenwald_on_

bradley_manning_prosecutor.


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21. News reports indicated that the prosecution of activists has

imposed restrictions, burdens, and interferences with First Amendment, other

Constitutional rights, civil liberties, and other civil rights of activists. After

HIV/AIDS activists were arrested during a peaceful protest in Washington, DC, the

U.S. Attorney’s Office demanded the drug-‐testing of activists, who were charged

with nonviolent crimes, such as civil disobedience. The demand for drug-‐testing of

HIV/AIDS activists was fraught with complications, because some activists may have

had a prescription for medical marijuana or may have had prescriptions for other

medications, which perhaps would have resulted in a false positive. See Trenton

Straube, U.S. Attorney Requires Drug Tests for AIDS Protesters, POZ (Feb. 2012),

http://www.poz.com/articles/DC_HIV_Marijuana_401_21944.shtml ; Martin

Austermuhle, AIDS Activist Faces Trial After Use of Medical Marijuana Sinks Hopes for

Dismissal of Charges, dcist (Feb. 9, 2012), http://dcist.com/2012/02/aids_

activist_faces_trial_after_usi.php.

22. These reports have also suggested that the prosecution of activists

has been unfair. The HIV/AIDS activists had chained themselves together inside the

office of then House Majority Leader Eric Cantor (R-‐Va.) to protest, among other

issues, cuts to HIV/AIDS programs. They were arrested on federal charges. On the

same day as the HIV/AIDS activists were arrested, 41 District of Columbia voting

rights activists, including Mayor Vincent Gray, were arrested on Capitol Hill. The

voting rights activists were charged with misdemeanors by the District of Columbia

attorney general ; most of the voting rights activists, including the mayor, paid a $50

fine. Why did the U.S. Attorney’s Office treated HIV/AIDS activists differently ?

See Arin Greenwood, HIV/AIDS Activists Complain Of Unfair Treatment By U.S.


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Attorney's Office, Huffington Post (Feb. 8, 2012), http://www.huffingtonpost.com/

2012/02/08/aids-‐activists-‐protest_n_1263144.html ; Brianne Carter, D.C. mayor

Vincent Gray, councilmembers arrested : Protesters plead not guilty, WJLA (May 5,

2011), http://www.wjla.com/articles/2011/05/d-‐c-‐mayor-‐vincent-‐gray-‐

councilmembers-‐arrested-‐protesters-‐to-‐appear-‐in-‐court-‐-‐60103.html ; Debbie

Siegelbaum, AIDS activists allege discriminatory treatment following Capitol arrest,

The Hill (Feb. 8, 2011), http://thehill.com/homenews/house/209485-‐aids-‐

activists-‐allege-‐discriminatory-‐treatment-‐after-‐capitol-‐protest-‐arrest.

23. Further reports raised concerns that the prosecution of activists

has been influenced with political overtones. During his tenure as a U.S. Attorney,

Patrick Fitzgerald targeted 23 activists, who were widely described as critics of U.S.

foreign policy. See Peter Wallsten, Activists cry foul over FBI probe, The Washington

Post (June 13, 2011), http://articles.washingtonpost.com/2011-‐06-‐13/politics/

35235946_1_activists-‐cry-‐stephanie-‐weiner-‐targets ; Kevin Gosztola, FBI Continues

to Target Activists in Chicago and Minneapolis (VIDEO), Firedoglake (Dec. 9, 2010),

http://my.firedoglake.com/kgosztola/2010/12/09/fbi-‐continues-‐to-‐target-‐

activists-‐in-‐chicago-‐and-‐minneapolis/ ; Josh Gerstein, After 1 year, FBI returns

property to Minnesota anti-war activists, Politico (Nov. 3, 2011),

http://www.politico.com/blogs/joshgerstein/1111/FBI_returns_property_to_Minn

esota_antiwar_activists.html.

24. Activist and the public-‐at-‐large are unable to determine the nature

and purpose of the prosecution of activists, because there is a lack of reliable

information about the reasons the DOJ has been prosecuting activists. Even

Congress has been left in the dark. See, e.g., Kim Zetter, Congress Demands Justice


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Department Explain Aaron Swartz Prosecution, Wired (Jan. 29, 2013),

http://www.wired.com/threatlevel/2013/01/doj-‐briefing-‐on-‐aaron-‐swartz/ ;

Marcy Wheeler, Aaron Swartz reveals the hypocrisy of our Justice Department, Salon

(Jan. 15, 2013), http://www.salon.com/2013/01/16/aaron_swartz_reveals_the_

hypocrisy_of_our_justice_department/. And in respect of Lt. Choi, a magistrate judge

had found that there was indication that the Department of Justice was singling out

Lt. Choi for “vindictively prosecution.” See John Aravosis, Judge finds prima facie

evidence that US government may have “vindictively prosecuted” Dan Choi,

AMERICAblog (Aug. 31, 2011), http://americablog.com/2011/08/judge-‐finds-‐

prima-‐facie-‐evidence-‐that-‐us-‐government-‐may-‐have-‐vindictively-‐prosecuted-‐dan-‐

choi.html ; Scott Wooledge, Updated: Judge Allows Lt Dan Choi’s “vindictive

prosecution” Defense, Daily Kos (Aug. 31, 2011), http://www.dailykos.com/story/

2011/08/31/1012290/-‐Updated-‐Judge-‐Allows-‐Lt-‐Dan-‐Choi-‐s-‐vindictive-‐

prosecution-‐Defense ; and Chris Geidner, Government Files Motion to Stop "Vindictive

Prosecution" Defense in Choi Trial, Metro Weekly (Sept. 16, 2011),

http://www.metroweekly.com/poliglot/2011/09/government-‐filed-‐motion-‐to-‐

sto.html.

The Government’s Pattern and Practice of Denying FOIA Requests

25. Contrary to each of FOIA, the President’s FOIA Memorandum, and

the Attorney General’s FOIA Guidelines, the government has made it difficult for

FOIA Requests to be answered. See, e.g., The FOIA Project, FOIA Lawsuits Increase

During Obama Administration, The FOIA Project (Dec. 20, 2012),

http://foiaproject.org/2012/12/20/increase-‐in-‐foia-‐lawsuits-‐during-‐obama-‐

administration/ (citing a study by the Transactional Records Access Clearinghouse,


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noting that more court complaints seeking to force the government to comply with

FOIA were filed in the first term of the administration of the President than in the

last term of the administration of former President George W. Bush, and adding that,

“Partly because President Obama has, since his first few days in office, made

sweeping promises about his administration’s support for open government, the

somewhat surprising increase in FOIA filings—especially in the last two years—

adds credence to the criticism of some activists about the Obama Administration’s

actual commitment to this goal.”) ; Erika Eichelberger, “Most Transparent

Administration Ever” Is Still Not, Mother Jones (Feb. 7, 2013),

http://www.motherjones.com/mojo/2013/02/darrell-‐issa-‐elijah-‐cummings-‐foia-‐

transparency-‐department-‐of-‐justice (noting that “filing a FOIA request and getting

information back is still a struggle”). Frustration with the government’s failure to

comply with each of it legal obligations under FOIA, the President’s FOIA

Memorandum, and the Attorney General’s FOIA Guidelines forced the leadership of

the U.S. House of Representatives Committee on Oversight and Government Reform

to send a letter the OIP to focus attention on concerns that included fees for

accessing government records, backlogs of FOIA Requests, and the misuse of

exemptions. See Darrell Issa & Elijah Cummings, Letter to Office of Information

Policy, U.S. House of Representatives (Feb. 4, 2013), http://oversight.house.gov/wp-‐

content/uploads/2013/02/2013-‐02-‐04-‐DEI-‐EEC-‐to-‐Pustay-‐re-‐FOIA.pdf (the “Letter

to the OIP”). Furthermore, a coalition of 49 groups acted in support of the Letter to

the OIP by pressing the government to honor its obligations under FOIA. See Jeff

Plungis, National Press Club asks President Obama to fulfill FOIA promises, National


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Press Club (Feb. 25, 2013), http://www.press.org/news-‐multimedia/news/

national-‐press-‐club-‐asks-‐president-‐obama-‐fulfill-‐foia-‐promises.

26. Since then, the number of court complaints seeking to force the

government to comply with FOIA has increased. See, e.g., Hadas Gold, NYT, Vice,

Mother Jones top FOIA suits, Politico (Dec. 23, 2014), http://www.politico.com/

blogs/media/2014/12/nyt-‐vice-‐mother-‐jones-‐top-‐foia-‐suits-‐200325.html (noting

that the top defendant was the DOJ) ; Ted Bridis, Administration sets record for

withholding government files, The Associated Press (Mar. 18, 2015),

http://bigstory.ap.org/article/ab029d7c625149348143a51ff61175c6/us-‐sets-‐new-‐

record-‐denying-‐censoring-‐government-‐files (noting that “The government took

longer to turn over files when it provided any, said more regularly that it couldn't

find documents and refused a record number of times to turn over files quickly

that might be especially newsworthy” (emphasis added), adding that “in nearly 1 in 3

cases,” the government’s “initial decisions to withhold or censor records were

improper under the law—but only when it was challenged.”).

27. Given the government’s pattern and practice of refusing to comply

with FOIA Requests until challenged, the government, in an act of bad faith, waited

until after the original Complaint was filed in this case before it released records,

and the government has not explained the rationale for having waited over two

years to answer the Request, making it impossible to know how the government

balances the First Amendment rights, other Constitutional rights, civil liberties, and

other civil rights of activists against charges that the government brings against

activists. Without this information, the public is unable to determine if the

government is intentionally targeting activists for prosecution. If the government is


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engaged in targeting activists, then the public is also unable to make informed

judgments about why the government has targeted activists for prosecution.

28. The government has been portrayed in the press to have been

engaged in the intentional targeting of journalists, for example, even though

journalists operate in a profession that benefits from protections from First

Amendment rights to free speech and freedom of the press. U.S. Const. amend. I.

See, e.g., Sari Horwitz, Under sweeping subpoenas, Justice Department obtained AP

phone records in leak investigation, The Washington Post, (May 13, 2013)

http://www.washingtonpost.com/world/national-‐security/under-‐sweeping-‐

subpoenas-‐justice-‐department-‐obtained-‐ap-‐phone-‐records-‐in-‐leak-‐

investigation/2013/05/13/11d1bb82-‐bc11-‐11e2-‐89c9-‐3be8095fe767_story.html

(noting that guidelines existed for how the DOJ treated investigations of the press,

specifically adding that the guidelines indicated that any “subpoenas of records from

news organizations must be approved personally by the attorney general”). Even

though the activities of journalists are protected by the First Amendment, the

government still investigated and prosecuted journalists in accordance with

guidelines that governed those prosecutions. The DOJ later updated and made

public those guidelines. See Charlie Savage, Attorney General Signs New Rules to

Limit Access to Journalists’ Records, The New York Times (Feb. 21, 2014),

http://www.nytimes.com/2014/02/22/us/attorney-‐general-‐signs-‐new-‐rules-‐to-‐

limit-‐access-‐to-‐journalists-‐records.html. However, the public does not know what

guides the DOJ in the prosecution of activists, whose civic activities are also

protected by the First Amendment.


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The E-‐Mail Request

29. On March 27, 2013, Flores submitted an electronic mail to George

seeking information that would allow Flores to update a blog post. The E-‐mail

Request presented three questions to George, including a request for production of a

tabulation of costs incurred by the DOJ in its prosecution of Lt. Choi :

a. Explanation for the DOJ’s prosecution of activists ;

b. Explanation for the failure by DOJ officials to refer to Lt. Choi by his rank ; and

c. Disclosure of the cumulative costs incurred by the DOJ to prosecute Lt. Choi.

30. The E-‐mail Request was copied to officials at DOJ components.

31. By April 10, 2013, no response was received, so Flores sent a

follow-‐up electronic mail requesting a response.

32. By April 16, 2013, no response was received, so Flores forwarded

the E-‐mail Request to a general public assistance electronic mail account of the DOJ,

asking for a response. The April 16, 2013, electronic mail cited the Attorney

General's FOIA Guidelines.

33. By electronic mail dated April 17, 2013, Miller instructed Flores to

submit a FOIA request to the EOUSA.

The FOIA Request

34. Based on Miller’s instruction communicated to Flores by Miller’s

electronic mail of April 17, 2013, Flores prepared and submitted by letter dated

April 30, 2013, a FOIA Request seeking :

a. All records and information pertaining to the legal basis of prosecuting activists, who engage in protests, including, but not limited, to records and information regarding :


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(i) what kind of activists may be targeted for prosecution, how many activists have been targeted for prosecution, what are the names of such activists, and which Department of Justice officials approved of such prosecution of activists ;

(ii) whether the nature and purpose of prosecution of activists may be aggressive, selective, or involve overreach, and which Department of Justice officials approve of such nature and purpose of prosecution of activists ;

(iii) limits, rules, procedures, or other guidelines that must or should be taken into consideration before, during, and after the prosecution of activists to mimimise the interference with First Amendment rights, other Constitutional rights, civil liberties, and other civil rights of activists ;

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

(v) any and all agency, executive, judicial, or congressional reports, memoranda, records, and information, which provide any description of the process for the determination as to whether activists can be targeted for prosecution ; and

(vi) whether agencies other than the Department of Justice may target activists for prosecution, and, if so, under what circumstances, under what conditions, and subject to what restrictions ; and which agency officials approve of such prosecution of activists.

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

(i) whether the prosecution of Lt. Choi was part of any Department of Justice’s process to target activists ; and


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(ii) the limits of the Department of Justice’s prosecution to mimimise the interference with First Amendment, other Constitutional rights, civil liberties, and other civil rights of Lt. Choi.

c. All records and information created on or after Nov. 12, 2010, pertaining to the legal basis for the Department of Justice or U.S. Attorney’s Office to fail to refer to Lt. Choi by his military rank, in accordance with Army Regulation 670-‐1.

d. The total cost of the prosecution of Lt. Choi, including, but not limited to :

(i) any and all records and information created on or after Nov. 12, 2010, pertaining to the cost of arresting and/or prosecuting Lt. Choi, including, but not limited to, records and information regarding :

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

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

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

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

(E) any and all records of hours worked, paid or unpaid overtime hours, and other information about personnel hours worked in connection with the prosecution of Lt. Choi.


19

35. The Request directed the DOJ to search for responsive records. In

the E-‐mail Request, Flores specifically asked whether there was another process by

which Flores could obtain the information he sought, and, if so, Flores requested to

be informed by the U.S. Attorney’s Office of such process. This was recounted on

Page 1 of the Request.

36. Plaintiff sought expedited processing of the Request on the grounds

that there is a “compelling need” for these records, because the information

requested is urgently needed by Flores, who is primarily engaged, as a journalist

and activist, in disseminating information to inform the public about the

government’s conduct. See 5 U.S.C. § 552(a)(6)(E) ; 22 C.F.R. § 171.12(b) ; 28 C.F.R.

§ 16.5(d) ; 32 C.F.R. § 286.4(d)(3) ; 32 C.F.R. § 1900.34(c).

37. Plaintiff sought a waiver of search, review, and reproduction fees

on the grounds that disclosure of the requested records is in the public interest,

because it “is likely to contribute significantly to public understanding of operations

or activities of the government and is not primarily in the commercial interest of the

requester.” See 5 U.S.C. § 552(a)(4)(A)(iii) ; 22 C.F.R. 171.17(a) ; see also 28 C.F.R.

§ 16.11(k)(1) ; 32 C.F.R. § 286.28(d) ; 32 C.F.R. § 1900.13(b)(2).

38. Plaintiff also sought a waiver of search and review fees on the

grounds that Flores qualifies as a “representative of the news media” and that the

records are not sought for commercial use. See 5 U.S.C. § 552(a)(4)(A)(ii); 28 C.F.R.

§ 16.11(d).


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The U.S. Attorney’s Office’s Response to the E-‐Mail Request

39. By electronic mail dated April 17, 2013, Miller acknowledged

receipt of the chain of electronic mails that included the E-‐Mail Request, instructing

Flores to submit the Request to the EOUSA.

40. The twenty-‐day statutory limit for the DOJ to respond to Plaintiff’s

Request has elapsed. See 5 U.S.C. § 552(a)(6).

41. In spite of the urgent public interest surrounding the requested

documents, after more than six months had passed since Plaintiff filed his Request,

the U.S. Attorney’s Office, in another act of bad faith, never released responsive

records, prompting Plaintiff to engage Counsel.

42. Plaintiff challenges the responses and nonresponses by the U.S.

Attorney’s Office on its own behalf and on behalf of the DOJ components.

43. For over two years, the U.S. Attorney’s Office neither released

responsive records nor explained its failure to do so, constituting an act of bad faith.

It was only after Plaintiff filed the original Complaint in this case that the EOUSA

provided, on behalf of the U.S. Attorney’s Office for the District of Columbia, the

incomplete and nonresponsive FOIA Response more completely described in

Paragraph 8. Plaintiff alleges bad faith conduct on the part of the EOUSA in

deliberately preparing an incomplete FOIA Response, one that intentionally omitted

responsive records, and, by virtue of having produced a partial copy of the pleadings

in the government’s case against Lt. Choi, in creating a red herring to intentionally

create confusion surrounding the records that are truly responsive to the Request.


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The Executive Office for United States Attorneys

44. During two telephone calls on June 5, 2013, Sanjay Sola, a paralegal

at the EOUSA (“Sola”), informed Flores that the Request had been received and been

assigned the request number : 13-‐1506, first adding that Vinay Jolly would be

handling the expedited processing request, before later correcting himself, saying

that Sonya Whitaker (“Whitaker”) would, instead, handle the expedited request

aspect of the Request. Sola transferred Flores to Whitaker’s voicemail, whereupon

Flores left his cellular telephone number for Whitaker to use to inform Flores if the

request for expedited processing would be approved for the Request.

45. On June 18, 2013, Flores again spoke with Sola during a telephone

call, and, once again, Sola transferred Flores to Whitaker’s voicemail, whereupon

Flores left another voicemail message for Whitaker about the Request.

46. In subsequent attempts to reach Sola by telephone, Flores spoke

with Sola on July 9, 2013, whereupon Sola informed Flores that the request for a fee

waiver was declined. Sola told Flores that the person making the determination just

checks a box. Sola added that the computer showed him that the Request was not a

matter of “widespread and exceptional interest.” Sola said that Flores may receive a

letter to this effect ; however, Flores never received such a letter. Furthermore,

Flores asked Sola how should Flores go about to appeal the determination that

denied the fee waiver, and Sola told Flores that Sola did not have that information.

Additionally, Sola told Flores that the Request was “under search,” and Flores asked

Sola if Flores should wait to see how many records would be produced before

addressing the issue of fees. Sola said that the policy of the U.S. Attorney’s Office is

to not charge for the first 100 pages, generally, but, after 100 pages, the charge is ten


22

cents per page, adding that the next step would be for Flores to receive an invoice,

which would then inform Flores how many records were found. The invoice would

also inform Flores how much Flores would have to pay. Flores never received such

an invoice.

47. In subsequent attempts to reach Sola by telephone, Flores spoke

with Sola on October 17, 2013, whereupon Flores told Sola that Flores had never

received any written confirmation that the DOJ had received the Request. Sola then

asked Flores if Flores had received the notification from “OPA” that the request for

expedited processing had been declined, to which Flores said that Flores had not.

Sola promised to send the notification to Flores by electronic mail. Flores never

received anything by electronic mail. Sola added that since the expedited processing

request had been declined, the Request was going through normal processing.

Flores asked why was the expedited processing request declined when one of the

activists, who was the principal subject of the Request, namely, Lt. Choi, was a

newsworthy individual. Sola told Flores that he had no information, promising

Flores that, “I need to get more information.” Furthermore, Flores asked Sola if

there was anybody else with whom Flores could speak, to which Sola replied that

Sola’s role in respect of FOIA requests was to process searches “after the search”

had been completed, adding that Sola would “find out from the intake staff” what

was happening with the Request, before further adding that, “After that, we’ll have

more answers for you.” Finally, Sola said that the FOIA Request would have to go to

the District for the search to be conducted, adding that the DOJ only has one person

in the District of Columbia, making the process very slow, before promising to get

more information on behalf of Flores, given that October 17, 2013, had been the first


23

day back for employees in the office since the conclusion of the government

shutdown. Sola concluded the call by saying that Sola would call Flores in the

following week. Flores never received such a follow-‐up call. Plaintiff alleges the

DOJ’s conduct in delaying, thwarting, or failing to process the Request constitutes

acts of bad faith.

48. Approximately three weeks later, on November 7, 2013, Flores

retained Counsel and attempted no more communication with Sola at the EOUSA.

49. When no responsive records were produced, Flores approached the

office of his representative in the U.S. Congress, the Hon. U.S. Representative Joseph

Crowley (“Crowley”), and asked that the office of Crowley write a letter to the

EOUSA on Flores’ behalf, asking that the EOUSA answer the Request. On February

10, 2014, the office of Crowley sent to the EOUSA such a letter signed by Crowley.

Plaintiff further alleges that the EOUSA’s failure to answer the letter sent by

Crowley, who is a ranking member of the U.S. House of Representatives, constitutes

an act of bad faith and demonstrates the DOJ’s over-‐all disregard for attempts by

government leaders to pressure the agency to comply with FOIA.

50. For over two years, the EOUSA neither released responsive records

nor explained its failure to do so, constituting an act of bad faith. It was only after

Plaintiff filed the original Complaint in this case that the EOUSA provided, on behalf

of the U.S. Attorney’s Office for the District of Columbia, the incomplete and

nonresponsive FOIA Response more completely described in Paragraph 8. Plaintiff

alleges that the delays and the subsequent deliberate omissions of responsive

records constitute acts of bad faith, and the totality of the EOUSA’s disregard for

FOIA constitutes an act of bad faith made with impunity.


24

The Office of Information Policy

51. By letter dated December 6, 2013, Counsel filed the Appeal with the

OIP, informing the OIP that the failure by the DOJ to respond to the Request

“constitutes a denial of the Request and Mr. Flores is deemed to have exhausted his

administrative remedies,” adding that, “the DOJ has done nothing at all to respond to

the Request other than to tell Mr. Flores that, due to the agency’s own internal

limitations on resources and staff, it is having difficulty processing the numerous

FOIA requests that the DOJ receives,” further adding that, “Given the DOJ’s conduct

in connection with the Request, we are left with the impression that the DOJ is

taking an uncooperative stance, is not exercising due diligence in responding to the

Request, or both,” before urging the DOJ “to be mindful of the Attorney General’s

admonition that ‘[o]pen government requires agencies to work proactively and

respond to requests promptly … When information not previously disclosed is

requested, agencies should make it a priority to respond in a timely manner. Timely

disclosure of information is an essential component of transparency. Long delays

should not be viewed as an inevitable and insurmountable consequence of high

demand,’ ” and finally concluding by demanding a response within 20 business days.

52. By letter dated May 20, 2014, the OIP corresponded with Counsel,

informing Counsel that the OIP was remanding the Request for responsive records,

adding that, if EOUSA “locates releasable records, it will be send them to you

directly, subject to any applicable fees.”

53. For over two years, the OIP neither released responsive records nor

explained its failure to do so, constituting an act of bad faith. It was only after



25

of the U.S. Attorney’s Office for the District of Columbia but without mention or

regard to the OIP, the incomplete and nonresponsive FOIA Response more

completely described in Paragraph 8. Plaintiff alleges bad faith on behalf of the OIP

for deliberately not being in compliance with FOIA.

The Department of Justice

54. On Sept. 17, 2014, Flores protested outside New York University

School of Law before Holder was set to deliver a speech. Amongst the protest signs

that Flores carried was one that read, “ERIC HOLDER : ANSWER FOIA REQUEST

ABOUT GOV’T PROSECUTION OF ACTIVISTS INCL. LT. DANIEL CHOI.” When Holder

arrived, Flores held up this protest sign and said, as Holder looked in the direction of

Flores, “Attorney General Holder, answer my FOIA request. Answer my FOIA

request.” See Louis Flores, Twitter (Sept. 17, 2014, 12:34 PM),

https://twitter.com/maslowsneeds/status/512278432131350528.

55. Again on Sept. 23, 2014, Flores protested outside New York

University School of Law, where Holder was appearing, to demand that the DOJ

answer the Request. Again, Flores carried the same sign, which read, “ERIC HOLDER

: ANSWER FOIA REQUEST ABOUT GOV’T PROSECUTION OF ACTIVISTS INCL. LT.

DANIEL CHOI.” See Louis Flores, Twitter (Sept. 23 2014, 1:07 PM),

https://twitter.com/maslowsneeds/status/514460998418579456.

56. Flores even launched a social media campaign to challenge the

DOJ’s pattern and practice that systematically refused to answer the Request. See,

e.g., Louis Flores, Twitter (Oct. 15, 2013, 4:42 PM EST), https://twitter.com/

maslowsneeds/status/390216209636925440 (attaching a link to a YouTube video,

which had been uploaded on Oct. 15, 2013, that explored whether individuals


26

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 government’s conduct,

consequently preventing citizens from meaningfully forming informed speech, from

meaningfully assembling to discuss the government’s conduct, and to petition their

government for a redress of grievances) ; and Louis Flores, Twitter (Sept. 25, 2014,

11:15 AM EST), https://twitter.com/maslowsneeds/status/515157736821358592

(noting the Sept. 17, 2014, protest against Holder).

57. For over two years, the DOJ neither released responsive records

nor explained its failure to do so, constituting an act of bad faith. It was only after


of the U.S. Attorney’s Office for the District of Columbia but without mention or

regard to the DOJ, the incomplete and nonresponsive FOIA Response more

completely described in Paragraph 8. Plaintiff alleges bad faith on behalf of the DOJ

for deliberately not being in compliance with FOIA.

58. Plaintiff’s Request seeks records about how the DOJ balances First

Amendment rights, other Constitutional rights, civil liberties, and other civil rights


27

of activists against charges that the DOJ brings against activists. As a journalist,

Plaintiff seeks these records in order to inform the public. Demonstrating the

danger to the First Amendment, the government precludes the full exercise of

complete speech by restricting the public to engage in speech that lacks information

in the records sought by the Request filed by Plaintiff under FOIA.

59. In response to Defendant’s restrictions on speech, Plaintiff

produced two YouTube videos to inform the public about the government’s refusal

to answer the Request. See, e.g., LGBTcivilRIRGHTS, Why won't DOJ answer FOIA

Request about Lt. Dan Choi ?, YouTube (Oct. 15, 2013), https://youtu.be/

JfqJ8FncI9Q ; astoria25, Free Speech Implications of DOJ Denying FOIA Request on Lt.

Daniel Choi, YouTube (Dec. 4, 2013), https://youtu.be/axxpXab1ZVQ ; Louis Flores,

Protest against Eric Holder at NYU re: FOIA request about government prosecution of

activists, YouTube (Sept. 17, 2014), https://youtu.be/3HQ-‐-‐oRpmK8.

60. The ability to engage in complete speech concerning the nature

and extent of the government’s conduct is critical to each of Plaintiff, readers of

Plaintiff’s Web sites, the public, and activists, who are not party to the Request.

61. (a). As a consequence of the government’s refusal to either release

responsive records or to explain its failure to do so, the public cannot fully and

completely speak ; meaningfully assemble with other journalists, citizens, or

activists ; and discuss any petition to the government for a redress of grievances.

Since the government is intruding on free speech and on the freedom of the press,

the government is violating the First Amendment with no explanation for either its

intrusion or its violation, respectively. (b). Before answering the Request, the

government misrepresented before this Court that the government had no copy of


28

the Request, even though the government admitted in its Answer to the original

Complaint in this case that the government had received e-‐mail from Plaintiff to

which Plaintiff had attached an electronic copy of the Request. (c). Meanwhile, the

government spent over two years simply refusing to answer the Request in a

particularly egregious act of bad faith. (d). When the government did answer the

Request, the government did so by falsely claiming that no responsive records could

be found, in spite of the fact that the FOIA Response included references to the

existence of such responsive documents. (e). Therefore, Plaintiff claims that the

DOJ components have not complied with FOIA, the President’s FOIA Memorandum,

and the Attorney General’s FOIA Guidelines. (f) Finally, the DOJ components’ willful

disregard for FOIA, its misrepresentation before this Court, and its refusal to

provide documents responsive to the Request constitute acts of bad faith and an

improper withholding of agency records, particularly in light of : (i) the Appeal

filed with the OIP, informing the OIP that the government had been deemed to have

constructively denied Plaintiff’s FOIA Request and concluding, in part, that Plaintiff

had exhausted his administrative remedies and (ii) the subsequent FOIA Response,

which referenced the kinds of records Plaintiff had been seeking but were denied

Plaintiff.

CAUSES OF ACTION

62. Defendant’s failure to make a reasonable effort to search for

records sought by the Request violates FOIA, 5 U.S.C. § 552(a)(3), and Defendant’s

corresponding regulations.


29

63. Defendant’s failure to promptly make available the records sought

by the Request violates FOIA, 5 U.S.C. § 552(a)(6)(A), and Defendant’s


64. Defendant’s failure to process Plaintiff’s request expeditiously and

as soon as practicable violates FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendant’s


65. Defendant’s failure to release responsive records or explain its

failure to do so violates the rights of Plaintiff, who is a journalist, under the First

Amendment, U.S. Const. amend. I, to be able to carry out his function to inform the

public about the government’s conduct.

66. Defendant’s failure to release responsive records or explain its

failure to do so violates the rights of Plaintiff, activists, and citizens under the First

Amendment, U.S. Const. amend. I, to be informed of the government’s conduct in

order to create and engage in complete and informed speech, to meaningfully

assemble with other citizens to discuss the government’s conduct, and to be able to

petition their government for a redress of grievances, if they so choose.

67. Defendant’s failure to grant Plaintiff’s request for a waiver of

search, review, and duplication fees violates FOIA, 5 U.S.C. § 552(a)(4), (a)(6), and

Defendant’s corresponding regulations.

�68. Defendant's failure to grant Plaintiff’s request for a limitation of

fees violates FOIA, 5 U.S.C. § 552(a)(4), (a)(6), and Defendant's corresponding

regulations.

REQUESTED RELIEF

WHEREFORE, Plaintiff respectfully request that this Court:


30

A. Order Defendant and its components the U.S. Attorney’s Office for

the District of Columbia, the Executive Office for United States

Attorneys, and the Office of Information Policy to immediately

process the Request and to release any responsive records not

properly withholdable under FOIA ;

B. Enjoin Defendant and its components from charging Plaintiff

search, review, or duplication fees for the processing of the

Request ;

C. Award Plaintiff their costs and reasonable attorneys' fees incurred

in this action ;

D. Grant such other relief as the Court may deem just and proper ; and

E. Given the demonstrations of bad faith by Defendant and to verify

that the DOJ components release all responsive records, 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.

Respectfully submitted,

___________________________________ Dated : Jackson Heights, New York September 23, 2015

Louis Flores 34-‐21 77th Street, Apt. 406 Jackson Heights, NY 11372 Phone : (646) 400-‐1168 [email protected]


31

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

�� LOUIS FLORES, Plaintiff, v. �UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

15-‐CV-‐2627 (JG)(RLM)

AFFIRMATION OF SERVICE

I, LOUIS FLORES, declare under penalty of perjury that I have served a copy of

the attached AMENDED COMPLAINT FOR INJUNCTIVE RELIEF upon RUKHSANAH L.

SINGH, whose address is : c/o United States Attorney’s Office, Eastern District of New

York, 271 Cadman Plaza East, 7th Floor, Brooklyn, New York 11201 by ELECTRONIC

MAIL DELIVERY to : [email protected].

Dated : Jackson Heights, New York September 23, 2015

Louis Flores 34-‐21 77th Street, Apt. 406 Jackson Heights, New York 11372 Phone : (646) 400-‐1168 [email protected]


2015-09-23 flores v usdoj - amended complaint (foia lawsuit) (stamped)

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