2015-11-23 doj msj (3) doj memorandum in support of msj (flores v doj) (foia lawsuit)

7/24/2019 2015-11-23 DOJ MSJ (3) DOJ Memorandum in Support of MSJ (Flores v DOJ) (FOIA Lawsuit)

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

LOUIS FLORES,

Plaintiff,

v.

UNITED STATES DEPARTMENT OFJUSTICE,

Defendant.

Civil Action No. 15-CV-2627

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

MEMORANDUM OF LAW IN SUPPORT OFDEFENDANTS MOTION FOR SUMMARY JUDGMENT

ROBERT L. CAPERSUnited States Attorney

Eastern District of New York Attorney for Defendants271 Cadman Plaza East, 7th FloorBrooklyn, New York 11201

RUKHSANAH L. SINGHAssistant United States AttorneyOf Counsel

Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 1 of 27 PageID #: 237


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TABLE OF CONTENTS

Page

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

FACTUAL BACKGROUND ..........................................................................................................1 ARGUMENT ...................................................................................................................................4

I. Applicable Legal Standards ...........................................................................................4

A. The Standard Governing Summary Judgment Motions ......................................... 4

B. The Applicable Standard Under the Freedom of Information Act ......................... 5

II. Plaintiffs Claims Requesting A Response To His FOIA Request Lack SubjectMatter Jurisdiction Because They Are Moot .................................................................6

III. EOUSA Adequately Responded To Plaintiffs FOIA Request .....................................7

A. EOUSA and USAO-DC Conducted Reasonable Searches .................................... 7

B. EOUSA Decided to Release Non-Responsive Documents in Good Faith ........... 14

IV. Plaintiff Cannot Now Broaden His FOIA Request By ChallengingDefendants Voluntary Disclosures Made In This Litigation ......................................16

V. Plaintiff Fails To State A Claim For An Alleged Pattern And Practice OfFailing To Respond To FOIA Requests.......................................................................18

VI. Plaintiff Claims Of Misrepresentation and Bad Faith And Requests For TheAppointment Of A Monitor And The Imposition Of Sanctions Fail As A

Matter Of Law..............................................................................................................20 CONCLUSION ..............................................................................................................................23



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TABLE OF AUTHORITIES

Page

Cases

Am.-Arab Anti-Discrimination Comm. v. U.S. Dept of Homeland Sec. , 516 F. Supp. 2d83 (D.D.C. 2007) .......................................................................................................................11

Amnesty Intl USA v. Cent. Intelligence Agency , 728 F. Supp. 2d 479 (S.D.N.Y. 2010) ........... 8, 9 Amnesty Intl USA v. Cent. Intelligence Agency , No. 07-CV-5435, 2008 WL 2519908

(S.D.N.Y. June 19, 2008) ................................................................................................9, 13, 17 Andersen v. Leavitt , No. 03-CV-6115, 2007 WL 2874838 (E.D.N.Y. Sept. 27, 2007) ................. 7 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986) ................................................................... 5 Antonelli v. Fed. Bureau of Prisons , 591 F. Supp. 2d 15 (D.D.C. 2008) ..................................... 18 Barouch v. U.S. Dept of Justice , 962 F. Supp. 2d 30 (D.D.C. 2013) .......................................... 16 Biberman v. Fed. Bureau of Investigation , 528 F. Supp. 1140 (S.D.N.Y. 1982) ......................... 17 Brown v. Fed. Bureau of Investigation , 873 F. Supp. 2d 388 (D.D.C. 2012)............................... 22Carney v. Dept of Justice , 19 F.3d 807 (2d Cir. 1994) ........................................................ 4, 6, 13Celotex Corp. v. Catrett , 477 U.S. 317 (1986) ............................................................................... 5Citizens for Responsibility & Ethics in Washington v. U.S. Dept of Justice , 48 F. Supp.

3d 40 (D.D.C. 2014) ..................................................................................................................16CNA Fin. Corp. v. Donovan , 830 F.2d 1132 (D.C. Cir. 1987) ..................................................... 14Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency , 12 F. Supp. 3d 100 (D.D.C. 2014) ............ 16Crews v. Internal Revenue Serv. , No. 99-8388, 2000 WL 900800 (C.D. Cal. Apr. 26,

2000) ..........................................................................................................................................18 Dennis v. Alcohol Tobacco and Explosives , No. 12-CV-3795, 2013 WL 6579581

(E.D.N.Y. Dec. 13, 2013) ..........................................................................................................10 Ercole v. U.S. Dept of Transp. , No. 07-CV-2049, 2008 WL 4190799 (E.D.N.Y. Sept. 10,

2008) ............................................................................................................................................7Freedom Watch, Inc. v. Cent. Intelligence Agency , 895 F. Supp. 2d 221 (D.D.C. 2012) ............ 12Gillin v. Internal Revenue Serv. , 980 F.2d 819 (1st Cir. 1992) .............................................. 17, 18Grand Cent. Pship, Inc. v. Cuomo , 166 F.3d 473 (2d Cir. 1999) ............................................ 4, 13Greenberg v. U.S. Dept of Treasury , 10 F. Supp. 2d 3 (D.D.C. 1998) ................................. 15, 16

Haji v. Bureau of Alcohol, Tobacco, Firearms and Explosives , No. 03-CV-8479, 2004WL 1783625 (S.D.N.Y. Aug. 10, 2004) ......................................................................................7

Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136 (1980) ............................ 5Kowalczyk v. Dept of Justice , 73 F.3d 386 (D.C. Cir. 1996)....................................................... 17

Lujan v. Natl Wildlife Fedn , 497 U.S. 871 (1990) ....................................................................... 5 Muset v. Ishimaru , 783 F. Supp. 2d 360 (E.D.N.Y. 2011) ............................................................. 7

Nationwide Bldg. Maint., Inc. v. Sampson , 559 F.2d 704 (D.C. Cir. 1977) ........................... 15, 16 Nelson v. Hernandez , 524 F. Supp. 2d 212 (E.D.N.Y. 2007) ......................................................... 5 Nolen v. Rumsfeld , 535 F.2d 890 (5th Cir. 1976) ........................................................................... 5 Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs , 493 F. Supp. 2d 91, 114-15

(D. Me. 2007) ............................................................................................................................18OMeara v. Internal Revenue Serv. , 142 F.3d 440, 1998 WL 123984 (7th Cir. Mar. 17,

1998) ..........................................................................................................................................22OSHA Data/CIH, Inc. v. Dept of Labor , 220 F.3d 153 (3d Cir. 2000) ................................... 7, 19



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Payne Enters., Inc. v. United States of Am. , 837 F.2d 486 (D.C. Cir. 1988) ................................ 19Perry v. Block , 684 F.2d 121 (D.C. Cir. 1982) ............................................................................. 13Pietrangelo v. U.S. Army , 334 F. Appx 358 (2d Cir. 2009) ........................................................ 18Prince v. Schofield , No. 98-CV-1224, 1999 WL 1007344 (E.D.N.Y. Sept. 23, 1999),

affd , 234 F.3d 1262 (2d Cir. 2000) (summary order) .................................................................6

Pub. Emps. for Envtl. Responsibility v. U.S. Dept of the Interior , No. 06-CV-182, 2006WL 3422484 (D.D.C. Nov. 28, 2006) .......................................................................................19Pub. Investors Arbitration Bar Assn v. U.S. Sec. Exchange Commn , 930 F. Supp. 2d 55

(D.D.C. 2013), affd , 771 F.3d 1 (D.C. Cir. 2014) ..................................................12, 15, 16, 17Quarles v. GM Corp. , 758 F.2d 839 (2d Cir. 1985) ....................................................................... 5

Regl Mgmt. Corp. v. Legal Serv. Corp. , 186 F.3d 457 (4th Cir. 1999) ....................................... 20 Roman v. Cent. Intelligence Agency , No. 11-CV-5944, 2013 WL 210224 (E.D.N.Y. Jan.

18, 2013) ....................................................................................................................................12SafeCard Serv., Inc. v. Sec. Exchange Commn , 926 F.2d 1197 (D.C. Cir. 1991) ....................... 13Scaff-Martinez v. Drug Enforcement Admin. , 770 F. Supp. 2d 17 (D.D.C. 2011) ....................... 12Serv. Womens Action Network v. Dept of Defense , 888 F. Supp. 2d 231 (D. Conn. 2012) ....... 12

Sussman v. U.S. Dept of Justice , No. 03-CV-3618, 2006 WL 2850608 (E.D.N.Y. Sept.30, 2006) ..................................................................................................................................6, 9Swan View Coal. v. Dept of Agric. , 39 F. Supp. 2d 42 (D.D.C. 1999) ........................................ 20Thomas v. Comptroller of Currency , 684 F. Supp. 2d 29 (D.D.C. 2010) .................................... 11U.S. Dept of Justice v. Tax Analysts , 492 U.S. 136 (1989) ........................................................... 5United States v. Apple Inc. , 992 F. Supp. 2d 263 (S.D.N.Y. 2014), affd , 787 F.3d 131 (2d

Cir. 2015) ...................................................................................................................................22United States v. Yonkers Bd. of Educ. , 29 F.3d 40 (2d Cir. 1994) ................................................ 22Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974) ................. 16Voinche v. Fed. Bureau of Investigation , 999 F.2d 962 (5th Cir. 1993)......................................... 7

Statutes

5 U.S.C. 522(a)(3) .................................................................................................................. 8, 225 U.S.C. 552(a)(2) ...................................................................................................................... 185 U.S.C. 552(a)(3)(A) ............................................................................................................ 5, 185 U.S.C. 552(a)(4)(B) ............................................................................................................ 5, 22

Rules

Fed. R. Civ. P. 53(a)(1) ................................................................................................................. 22Fed. R. Civ. P. 56(a) ....................................................................................................................... 4

Regulations

28 C.F.R. 16.3 .............................................................................................................. 2, 8, 12, 22Appx. 1 to Part 16 of Title 28 C.F.R. ........................................................................................ 8, 12

Other Authorities

Attorney General, Memorandum for Heads of Executive Departments and Agencies, TheFreedom of Information Act (FOIA) (March 19, 2009)................................................ 15, 21



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PRELIMINARY STATEMENT

Defendant Department of Justice (Defendant or DOJ), by its attorney, Robert L.

Capers, United States Attorney for the Eastern District of New York, Rukhsanah L. Singh,

Assistant United States Attorney, of counsel, respectfully submits this memorandum of law in

support of its motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. This action, which is brought under the Freedom of Information Act (FOIA), 5

U.S.C. 552, challenges the response by Executive Office for the United States Attorneys

(EOUSA) to Plaintiff Louis Floress (Plaintiff) FOIA request, which sought documents

relating to the prosecution of Daniel Choi and the prosecution of activists.

As detailed below and in the supporting Declarations submitted herewith, EOUSA and

USAO-DC conducted diligent and reasonable searches for, but did not locate, any documents

responsive to Plaintiffs FOIA request. Although not required to do so, EOUSA exercised its

discretion and released to Plaintiff non-responsive, publicly-available documents generally

relating to the prosecution of Daniel Choi. Defendant also has voluntarily provided materials

non-responsive to Plaintiffs FOIA request. Defendant has not improperly withheld agency

records, and Plaintiff is not entitled to any relief under the FOIA. Defendant is entitled to

summary judgment as a matter of law and, therefore, respectfully requests that the Court dismiss

this action.

FACTUAL BACKGROUND

For a more detailed statement of the facts material to the arguments presented in this

Memorandum, Defendant respectfully refers the Court to Defendants Statement of Undisputed

Material Facts Pursuant to Local Civil Rule 56.1 (56.1 Stmt. __), the Declaration of Karin

Kelly dated September 30, 2015 (Kelly Decl.), the Declaration of Princina Stone dated

September 30, 2015 (Stone Decl.), and the Declaration of Assistant U.S. Attorney Rukhsanah



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L. Singh dated November 23, 2015 (Singh Decl.), and exhibits annexed thereto. Nevertheless,

a brief summary of the factual background is provided here.

In March 2013, Plaintiff sent an informal request for information relating to the

prosecution of Daniel Choi to the United States Attorneys Office for the District of Columbia

(USAO-DC), the Office that handled the Choi prosecution. (56.1 Stmt. 1-2). Upon

instruction from USAO-DC personnel, Plaintiff sent the FOIA request to the EOUSA dated April

30, 2013, which is the subject of this action. 1 (56.1 Stmt. 7-8). In that request, Plaintiff

sought four categories of information and records relating to the Choi prosecution, expedited

processing, and a waiver or limitation of fees. (56.1 Stmt. 8-11).On May 5, 2015, Plaintiff filed his Complaint against DOJ. (56.1 Stmt. 18). EOUSA

could not locate a copy of the April 30, 2013 FOIA request in its files, but obtained a copy of the

request to review and respond to it. (56.1 Stmt. 13-14, 20). Upon review of the FOIA

request, and at EOUSAs direction, USAO-DC conducted reasonable searches for any records

responsive to the request. 2 (56.1 Stmt. 21-53). Those searches did not locate any records

responsive to Plaintiffs request. (56.1 Stmt. 23). Nevertheless, USAO-DC pulled from its

files those publicly-available documents that related to the Choi prosecution and provided those

documents to EOUSA for review and release to Plaintiff. (56.1 Stmt. 54-58).

1 EOUSA is the component of DOJ that, inter alia , is responsible for responding to FOIArequests on behalf of the Offices of the United States Attorneys and EOUSA. A FOIA request toother components of DOJ must be made to the FOIA office of that component. See 28 C.F.R. 16.3.

2 Plaintiffs FOIA request specifically states that it sought information from USAO-DC:seeks records pertaining to the prosecution of Lt. Daniel Choi . . . . and information andrecords pertaining to the nature and purpose of the U.S. Attorneys Offices prosecution of Lt.Choi. (56.1 Stmt. 8-9). The original and Amended Complaints also make numerousreferences to USAO-DC and complains that the U.S. Attorneys Office has neither releasedresponsive records nor explained its failure to do so. (Dkt. No. 1, 43; Dkt. No. 15, 43).



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On August 17, 2015, EOUSA responded to Plaintiffs FOIA request by informing

Plaintiff that reasonable searches had not located any records responsive to his FOIA request.

(56.1 Stmt. 60). Nonetheless, EOUSA advised it was making a release, in its discretion, of

non-responsive publicly-available records relating to the Choi prosecution that had been located

in the USAO-DC files. (56.1 Stmt. 61). EOUSA explained that, absent authorization by

Daniel Choi, a death certificate, or a public justification, the Privacy Act, 5 U.S.C. 552a, it was

precluded from including non-public information regarding Choi. (56.1 Stmt. 62-63).

EOUSA provided Plaintiff with 331 pages of records and did not charge or assess any fees.

(56.1 Stmt. 64-65).On September 16, 2015, the parties attended a status conference with the Court. (56.1

Stmt. 66). The Court granted Plaintiff leave to amend his Complaint but denied his request for

discovery. (56.1 Stmt. 68). The Court also instructed the parties to further confer to try to

narrow the issues for motion practice and encouraged Defendant to: (a) conduct a voluntary

search at Main Justice for written guidelines regarding the prosecution of activists and (b)

voluntarily produce documents responsive to an index provided by Plaintiff at the conference.

(56.1 Stmt. 69-71). Thereafter, the DOJ Criminal Division voluntarily searched its Office of

the Assistant Attorney General (OAAG) in Washington, D.C. for any written guidelines

regarding the prosecution of activists and found no responsive documents. (56.1 Stmt. 79,

81). However, Defendant voluntarily produced to Plaintiff a variety of materials (mostly

available on DOJs online FOIA library) that appeared to be responsive to Plaintiffs September

16, 2015 index, which were not responsive to his FOIA request. (56.1 Stmt. 80). Defendant

also provided Plaintiff copies of the Kelly and Stone Declarations. (56.1 Stmt. 78). Thereafter,



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Plaintiff raised various issues with Defendants voluntary productions and the two declarations.

(56.1 Stmt. 82).

ARGUMENT

Plaintiff is not entitled to the relief he seeks through this action. First, Plaintiffs

requested relief in the form of a response to his FOIA request is moot, as EOUSA has provided a

response. Second, Plaintiff cannot rebut the presumption of good faith afforded to the searches

for records responsive to his FOIA request and cannot show that EOUSAs release of non-

responsive, publicly-available documents violates FOIA. Third, Plaintiff cannot broaden his

FOIA request through litigation, by seeking discovery and challenging the voluntary searches

and disclosures made in good faith attempts to resolve Plaintiffs concerns. Fourth, Plaintiff fails

to state a claim for plausible relief as to his suggestion that DOJ has a pattern and practice of

delaying responses to FOIA requests. Fifth, Plaintiffs claims of alleged misrepresentations and

bad faith lack merit, there is no basis for the appointment of a monitor in this action, and the

remedy of sanctions is unavailable in a FOIA action. For those reasons, the Court should dismiss

this action in its entirety.

I. APPLICABLE L EGAL STANDARDS

A. The Standard Governing Summary Judgment Motions

Defendant seeks entry of summary judgment in its favor, dismissing Plaintiffs claims

against it. Indeed, summary judgment is the procedural vehicle by which most FOIA actions are

resolved. See, e.g. , Grand Cent. Pship, Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999);

Carney v. Dept of Justice , 19 F.3d 807, 812 (2d Cir. 1994). A court will grant summary

judgment where there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). To withstand entry of summary judgment, a

plaintiff must make a sufficient showing on the essential elements of his case for which he bears



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the burden of proof at trial. Nelson v. Hernandez , 524 F. Supp. 2d 212, 219 (E.D.N.Y. 2007)

(Gershon, J.) (citing Lujan v. Natl Wildlife Fedn , 497 U.S. 871, 884 (1990); Celotex Corp. v.

Catrett , 477 U.S. 317, 323 (1986)). A court may enter summary judgment in the defendants

favor if the plaintiff proffers evidence that is merely colorable or not significantly probative.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). The mere existence of a scintilla of

evidence in support of the plaintiffs position will be insufficient; there must be evidence on

which the jury could reasonably find for the plaintiff. Id. at 252. Further, any factual disputes

must be material to avoid entry of summary judgment. See Quarles v. GM Corp. , 758 F.2d 839,

840 (2d Cir. 1985).B. The Applicable Standard Under the Freedom of Information Act

The FOIA requires United States government agencies to disclose agency records to any

person requesting those records, provided the request reasonably describes such records and is

made in accordance with published rules and procedures. 5 U.S.C. 552(a)(3)(A). Under the

FOIA, a district court has jurisdiction to enjoin the agency from withholding agency records

and to order the production of any agency records improperly withheld 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). A plaintiff must show that an agency has (1) improperly; (2) withheld; (3)

agency records. Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 150

(1980) (internal quotation marks omitted). All three criteria must be met for subject matter

jurisdiction to exist. U.S. Dept of Justice v. Tax Analysts , 492 U.S. 136, 142 (1989).

Importantly, the FOIA compels disclosure only of existing records that are requested.

Nolen v. Rumsfeld , 535 F.2d 890, 891 (5th Cir. 1976). There can be no withholding when, as in

this case, no responsive documents exist. Significantly, [a] non-existent document is obviously

not an agency record, and the agency can satisfy its burden for this element by submitting



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detailed, nonconclusory affidavits that demonstrate the agency made a reasonable search in light

of all the circumstances. Prince v. Schofield , No. 98-CV-1224, 1999 WL 1007344, at *3

(E.D.N.Y. Sept. 23, 1999) (Nickerson, J.), affd , 234 F.3d 1262 (2d Cir. 2000) (summary order)

(internal citations omitted). 3

If the plaintiff challenges an agencys response, the agency must show that the response

was appropriate, including that a search was adequate and any documents withheld were exempt

from disclosure. Sussman v. U.S. Dept of Justice , No. 03-CV-3618, 2006 WL 2850608, at *10

(E.D.N.Y. Sept. 30, 2006) (Hurley, J.). A search is adequate if it is reasonably calculated to

uncover responsive documents. Garcia v. U.S. Dept of Justice, Office of Info. & Privacy , 181 F.Supp. 2d 356, 366 (S.D.N.Y. 2002). [D]eclarations supplying facts indicating that the agency

has conducted a thorough search . . . are sufficient to sustain the agencys burden. Carney , 19

F.3d at 812 (footnote omitted). Moreover, agency declarations are accorded a presumption of

good faith. Id. (internal quotation marks and citation omitted). Once the agency has satisfied

its burden, a plaintiff must show bad faith on the part of the agency sufficient to impugn the

agencys affidavits or declarations. Id. Mere speculative assertions or allegations of bad faith

unsupported by tangible evidence cannot rebut the presumption of good faith attached to agency

declarations. Prince , 1999 WL 1007344 at *3.

II. PLAINTIFF S C LAIMS R EQUESTING A R ESPONSE T O H IS FOIA R EQUEST L ACKSUBJECT M ATTER J URISDICTION BECAUSE T HEY ARE M OOT

Although filing his Amended Complaint after receipt of the response to his FOIA request,

Plaintiff continues to seek relief in the form of a response to the FOIA request, the production of

any responsive, non-exempt information, and a waiver of any assessment of fees. ( See Dkt. No.

15 at pp. 29-30 (Requested Relief)). However, those claims are now moot.

3 Pursuant to Local Civil Rule 7.2, copies of decisions cited herein that are unreported orreported exclusively on computerized databases are being provided to Plaintiff.



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If an agency responds to a FOIA request after the initiation of a lawsuit, a claim for relief

under FOIA becomes moot upon receipt of the requested documents, despite the delay in the

response. See Muset v. Ishimaru , 783 F. Supp. 2d 360, 372 (E.D.N.Y. 2011) (Vitaliano, J.). See

also OSHA Data/CIH, Inc. v. Dept of Labor , 220 F.3d 153, 168-69 (3d Cir. 2000) (recognizing

FOIA claim rendered moot where agency subsequently responds to the FOIA request, albeit

delayed); Voinche v. Fed. Bureau of Investigation , 999 F.2d 962, 963 (5th Cir. 1993); Ercole v.

U.S. Dept of Transp. , No. 07-CV-2049, 2008 WL 4190799, at *8 (E.D.N.Y. Sept. 10, 2008)

(Bianco, J.); Andersen v. Leavitt , No. 03-CV-6115, 2007 WL 2874838, at *16 (E.D.N.Y. Sept.

27, 2007) (Hurley, J.). In addition, a FOIA action is moot if the documents requested do notexist. Haji v. Bureau of Alcohol, Tobacco, Firearms and Explosives , No. 03-CV-8479, 2004 WL

1783625, at *2 (S.D.N.Y. Aug. 10, 2004).

EOUSA has responded to Plaintiffs FOIA request, indicated that there are no responsive

documents within the USAO-DCs files, made a release in its discretion, and not assessed any

fees. Because Plaintiff has received the relief requested, and there are no documents responsive

to his request, his claims are moot and should be dismissed for lack of subject matter jurisdiction.

See Muset , 783 F. Supp. 2d at 372; Haji , 2004 WL 1783625 at *2.

III. EOUSA ADEQUATELY R ESPONDED T O PLAINTIFF S FOIA R EQUEST

In his Amended Complaint, Plaintiff challenges EOUSAs response to his FOIA request.

However, EOUSA provided an adequate response following reasonable searches.

A. EOUSA and USAO-DC Conducted Reasonable Searches

EOUSA and USAO-DC conducted proper, reasonable searches for records responsive to

Plaintiffs request.



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1. EOUSA Properly Focused the Searches on USAO-DC Records

First, EOUSA properly directed USAO-DC to conduct searches for records responsive to

Plaintiffs FOIA request because that is the USAO that was responsible for the prosecution of

Daniel Choi. Plaintiffs FOIA request, administrative appeal, and original Complaint all stated

that Plaintiff sought records and information held by USAO-DC, primarily relating to or arising

from the Choi prosecution. Plaintiffs FOIA request specifically sought records from USAO-

DC, stating that Plaintiff: seeks records pertaining to the prosecution of Lt. Daniel Choi . . . .

and information and records pertaining to the nature and purpose of the U.S. Attorneys

Offices prosecution of Lt. Choi. (56.1 Stmt. 8-9; Singh Decl. Ex. A). The Complaint also

made numerous references to USAO-DC and complained that the U.S. Attorneys Office has

neither released responsive records nor explained its failure to do so. (Dkt. No. 1, 43).

Because USAO-DC was the prosecuting office, searching that office, the USAO-DC,

was reasonably calculated to discover the requested documents. Amnesty Intl USA v. Cent.

Intelligence Agency , 728 F. Supp. 2d 479, 497 (S.D.N.Y. 2010) (internal quotation marks and

citations omitted). As a result, it was reasonable to construe Plaintiffs FOIA request as seeking

records from USAO-DC. See id. at 498 (While . . . an agency has a duty to construe FOIA

requests liberally, FOIA was not intended to reduce government agencies to full-time

investigators on behalf of requesters. (internal quotation and editing marks and citations

omitted)).

Moreover, had Plaintiff sought records beyond those in the possession of a USAO or the

EOUSA, he would have had to submit his request to the relevant component of DOJ pursuant to

28 C.F.R. 16.3. See 28 C.F.R. 16.3 (requirements for FOIA requests to DOJ); Appx. 1 to

Part 16 of Title 28 C.F.R. A FOIA request to an agency must be in accordance with published

rules stating the time, place, fees (if any) and procedures to be followed. 5 U.S.C. 522(a)(3).



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Accordingly, to the extent Plaintiff seeks records from any DOJ components other than USAO-

DC, Plaintiff has not submitted a proper FOIA request.

Nevertheless, without waiver of the above argument, and at the Courts encouragement,

the DOJ Criminal Division voluntarily searched the OAAG for any written guidelines regarding

the prosecution of activists. (56.1 Stmt. 79). As Plaintiff was informed, the search revealed no

such records. (56.1 Stmt. 81).

2. USAO-DCs Searches were Reasonably Calculated to Uncover any Responsive Documents

Second, as explained in more detail in the Declaration of Karin Kelly, submitted

herewith, the searches of USAO-DCs files was thorough and reasonably calculated to uncover

any documents responsive to Plaintiffs request.

[A]n agency has a duty to construe FOIA requests liberally[; however,] FOIA was not

intended to reduce government agencies to full-time investigators on behalf of requesters.

Amnesty Intl , 728 F. Supp. 2d at 498 (internal quotation and editing marks and citations

omitted); see also Amnesty Intl USA v. Cent. Intelligence Agency , No. 07-CV-5435, 2008 WL

2519908, at *12-13 (S.D.N.Y. June 19, 2008) (finding agency was not required to conduct search

relating to individuals mentioned in materials cited in a FOIA request and noting that plaintiff

could have included specific requests relating to certain individuals but chose not do so by using

broader, general terms); Sussman , 2006 WL 2850608 at *9 (finding request too vague to provide

information needed to conduct an adequate search and recognizing that [a]n agencys

obligation to process a request for records is predicated on the agencys receipt of a request

which reasonably describes the records sought and is made in accordance with published rules

stating the time, place, fees, and procedures to be followed). Declarations describing a search

will be sufficient to meet the agencys burden if they identify the searched files and describe at



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least generally the structure of the agencys file system which renders any further search unlikely

to disclose additional relevant information[.] Dennis v. Alcohol Tobacco and Explosives , No.

12-CV-3795, 2013 WL 6579581, at *5 (E.D.N.Y. Dec. 13, 2013) (Gleeson, J.) (quotation marks

and citation omitted). Indeed, FOIA requires a search be reasonably calculated to discover the

requested documents even though it may not have uncovered every document extant. Amnesty

Intl , 728 F. Supp. 2d at 498 (internal quotation marks and citations omitted).

The Declarations of Karin Kelly and Princina Stone establish that EOUSA has conducted

reasonable searches in good faith. As set forth in the Stone Declaration, EOUSA instructed

USAO-DC to conduct searches for records responsive to Plaintiffs FOIA request. (Stone Decl. 6). Karin Kelly, a paralegal specialist and FOIA coordinator at USAO-DC, conducted the

searches. (Kelly Decl. 1, 7-9). Ms. Kelly made inquiries with an IT Specialist in the

Applications and Information (AI) group as to whether searches could be conducted on the

Replicated Criminal Information System (RCIS), which tracked information relating to

criminal data originating in the Superior Court of the District of Columbia. (Kelly Decl. 10-

12). Ms. Kelly also contacted another IT Specialist in the AI group to search the Legal

Information Network System (LIONS), which is a case management system used by the

Criminal, Appellate, and Civil Divisions of USAO-DC to track all district court matters and

appeals. (Kelly Decl. 13). A search for the term activists on LIONS produced no results.

(Kelly Decl. 15).

Ms. Kelly also contacted the Assistant United States Attorney (AUSA) assigned to the

Choi prosecution, who advised that she did not have a manual to refer to regarding the

prosecution of activists. (Kelly Decl. 18). In addition, Ms. Kelly consulted with the USAO-

DC Budget Officer to ascertain if records could be located that were responsive to Plaintiffs



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FOIA request for records as to the costs associated with the Choi prosecution. (Kelly Decl.

21-24). The Budget Officer informed Ms. Kelly that accounting records did not exist for a

single defendant in a multiple defendant prosecution and that a search for accounting records as

to any prosecution would require a manual search of individual requests to budget made by any

AUSA or staff assigned to the case during a selected time frame and a determination as to which

requests related to the particular prosecution at issue. (Kelly Decl. 22-23).

Terms and words used by Plaintiff in his FOIA request formed the basis for the search

terms used by the USAO-DC, and whole portions of Plaintiffs Requested Records were

consulted, and referred to, during the searches. ( See, e.g. , Kelly Decl. 11, 14, 16-19, 21). Ininstances where a search of a database or files was not possible because the terms activists or

targeted were not defined or used by USAO-DC, it was appropriate for Ms. Kelly to rely on

the personal experience and expertise of the IT Specialists and AUSA and no further searches

were required under the FOIA. ( See, e.g. , Kelly Decl. 12, 16-17); see also Thomas v.

Comptroller of Currency , 684 F. Supp. 2d 29, 33 (D.D.C. 2010) (Agencies are not required to

maintain their records or perform searches which are not compatible with their own document

retrieval systems. (quotation and editing marks and citation omitted)); Am.-Arab Anti-

Discrimination Comm. v. U.S. Dept of Homeland Sec. , 516 F. Supp. 2d 83, 88 (D.D.C. 2007)

(finding agencys affiant was presumed able to familiarize himself with what statistics ICE does

and does not maintain and concluding [h]is explanation that ICE neither maintains data on

arrestees ethnicity or religion nor uniformly collects such information on race is sufficient-if not

exactly to show the adequacy of the search, then to explain why a search would be futile and is

unnecessary).



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Moreover, neither USAO-DC nor EOUSA were required to answer questions posed by

Plaintiff, such as the request for the legal basis for the Department of Justice or U.S. Attorneys

Office to fail to refer to Lt. Choi by his military rank, in accordance with Army Regulation 670-

1. (Singh Decl. Ex. A at p. 4, No. 3; see also Kelly Decl. 20); see Scaff-Martinez v. Drug

Enforcement Admin. , 770 F. Supp. 2d 17, 22-23 (D.D.C. 2011) (finding agency was not

required to answer questions, conduct research or create records to satisfy a request (internal

quotation marks and citation omitted)); Serv. Womens Action Network v. Dept of Defense , 888

F. Supp. 2d 231, 241 (D. Conn. 2012) ([A]n agency need not respond to or answer questions

disguised as a FOIA request[.] (internal quotation marks and citation omitted)). Further,USAO-DC could not provide the cost records requested in Plaintiffs FOIA request because to

do so would not only be burdensome but also would require the production of non-responsive

information relating to the costs of prosecuting other defendants besides Choi, with any

responsive information. See Pub. Investors Arbitration Bar Assn v. U.S. Sec. Exchange

Commn , 930 F. Supp. 2d 55, 72 (D.D.C. 2013) ([I]t is elementary that an agencys decision to

withhold non-responsive material is not a violation of the FOIA.), affd , 771 F.3d 1 (D.C. Cir.

2014); Roman v. Cent. Intelligence Agency , No. 11-CV-5944, 2013 WL 210224, at *6 (E.D.N.Y.

Jan. 18, 2013) (Bianco, J.) (An agency need not honor a FOIA request that requires an

unreasonably burdensome search. (quoting Freedom Watch, Inc. v. Cent. Intelligence Agency ,

895 F. Supp. 2d 221, 228 (D.D.C. 2012)) (internal editing and quotation marks omitted)). In

addition, neither EOUSA nor USAO-DC were required to search other DOJ components or other

agencies for records responsive to Plaintiffs FOIA request. See, e.g. , 28 C.F.R. 16.3

(requirements for FOIA requests to DOJ); Appx. 1 to Part 16 of Title 28 C.F.R.



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In sum, as illustrated in the Kelly Declaration, USAO-DC did not read the FOIA request

so strictly that [Plaintiff was] denied information [USAO-DC] well knows exists in its files,

albeit in a different form tha[n] anticipated by Plaintiff. Amnesty Intl , 2008 WL 2519908 at

*12 (internal quotation marks and citation omitted). Even if there conceivably might be

documents that exist does not render the searches unreasonable. See Grand Cent. , 166 F.3d at

489 (The issue is whether the search was reasonably calculated to discover the requested

documents, not whether it actually uncovered every document extant. (internal quotation marks

and citation omitted)); Perry v. Block , 684 F.2d 121, 128 (D.C. Cir. 1982) (The issue is not

whether any further documents might conceivably exist but rather whether the governmentssearch for responsive documents was adequate.).

3. Plaintiff Cannot Rebut the Presumption of Good Faith

Third, Plaintiff cannot offer, and has not offered, any tangible evidence of bad faith that

would rebut the presumption of good faith ascribed to the Kelly or Stone Declarations.

Indeed, these Declarations were made by individuals with personal knowledge of the

searches for records responsive to Plaintiffs April 30, 2013 request, as required by Rule 56 of

the Federal Rules of Civil Procedure. See, e.g. , Carney , 19 F.3d at 814 (An affidavit from an

agency employee responsible for supervising a FOIA search is all that is needed to satisfy Rule

56(e)[.]). They supply sufficient facts showing that EOUSA and USAO-DC conducted a

thorough search, in good faith. Id. at 812. Contrary to Plaintiffs allegations otherwise,

Plaintiff cannot show bad faith by pointing to a delay in producing documents or purely

speculative claims about the existence and discoverability of other documents[.] SafeCard

Serv., Inc. v. Sec. Exchange Commn , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation

marks omitted); see also Grand Cent. , 166 F.3d at 489-90 (recognizing that a delay in producing



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responsive documents following a second search did not establish bad faith on the part of the

agency).

Thus, Plaintiff cannot rebut the presumption of good faith.

B. EOUSA Decided to Release Non-Responsive Documents in Good Faith

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

Stmt. 23, 60). However, EOUSA exercised its discretion to release non-responsive, publicly-

available documents that involved, generally, the prosecution of Daniel Choi that were located in

the files of the prosecuting office, USAO-DC. 4 (56.1 Stmt. 54-58, 61). Plaintiffs FOIA

request itemized four particular categories of documents that he sought in connection with the

Choi prosecution, and the documents generally relating to the Choi multi-defendant prosecution,

such as memoranda of law filed in connection with that prosecution, were not responsive to

Plaintiffs request. 5 (See Singh Decl. Ex. A).

4 Plaintiff appears to believe that EOUSAs use of the words discretionary releasesomehow indicate that it argues that obligations imposed by the FOIA are discretionary.EOUSA does not take any such position. For clarity, EOUSA does not take the position that therelease of the Choi prosecution materials, or the voluntary disclosures made after the September16, 2015 conference, was in lieu of any obligations imposed by the FOIA. Moreover, the releaseto Plaintiff was not a discretionary disclosure, as the term of art is used under the FOIA. Adiscretionary disclosure (sometimes also referred to as a discretionary release) under the FOIAoccurs when an agency makes a disclosure of exempt records, as a matter of their administrativediscretion, where they are not otherwise prohibited from doing so. See, e.g. , CNA Fin. Corp. v.

Donovan , 830 F.2d 1132, 1133 n.1 (D.C. Cir. 1987) (The agencys decision to release the datanormally will be grounded either in its view that none of the FOIA exemptions applies, and thusthat disclosure is mandatory, or in its belief that release is justified in the exercise of itsdiscretion, even though the data fall within one or more of the statutory exemptions.). Therecords released to Plaintiff were not subject to disclosure, and thus not subject to an exemptionunder the FOIA, because they were non-responsive to the FOIA request and were publicly-available documents.

5 Plaintiff has alleged that the documents provided in the release included references torecords that Plaintiff sought through his FOIA request. ( See Dkt. No. 15 at 8, fifth sentence).However, the referenced materials were not responsive to Plaintiffs FOIA request, as set forth inDefendants October 13, 2015 letter to Plaintiff. ( See Singh Decl. Ex. K at pp. 2-3).



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These documents were not responsive to the FOIA request, and, therefore, EOUSA was

not required to produce them. See Pub. Investors Arbitration , 930 F. Supp. 2d at 72 ([I]t is

elementary that an agencys decision to withhold non-responsive material is not a violation of the

FOIA.). Whether to release such non-responsive documents was within the discretion of

EOUSA, and the agency should not be penalized for attempting to provide documents that

related to the general subject matter of Plaintiffs FOIA request in the spirit of the FOIA. 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 makesuch a disclosure); Nationwide Bldg. Maint., Inc. v. Sampson , 559 F.2d 704, 712 n.34 (D.C. Cir.

1977) (The FOIA should not be construed so as to put the federal bureaucracy in a defensive or

hostile position with respect to the Acts spirit of open government and liberal disclosures of

information.); see also Attorney General, Memorandum for Heads of Executive Departments

and Agencies, The Freedom of Information Act (FOIA), at 1 (March 19, 2009) (I strongly

encourage agencies to make discretionary disclosures of information.).

In addition, EOUSA released non-responsive, publicly-available documents that were

located in USAO-DCs files that related to the Choi prosecution. Because the release included

documents located in USAO-DCs files, rather than all documents available through the Courts

filing system, and because EOUSA collected only those documents that related specifically to

Daniel Choi (as he was prosecuted as part of a multi-defendant case), there will be documents

relating to the prosecution that were filed with the court in the Choi prosecution that were not

part of EOUSAs release. ( See 56.1 Stmt. 55-56, 62-63). In addition, the EOUSA properly

withheld from the release any documents involving Choi that were not public pursuant to the



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Privacy Act, 5 U.S.C. 552a. (56.1 Stmt. 62-63). Any further documents from the Choi

prosecution would be non-responsive to Plaintiffs FOIA request and, as a result, EOUSA is not

required to produce such records. 6 See Pub. Investors Arbitration , 930 F. Supp. 2d at 72;

Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency , 12 F. Supp. 3d 100, 114 (D.D.C. 2014)

([W]hile most FOIA cases deal with documents that are produced and then withheld under a

particular exemption, non-responsive records need never be produced at all.). Thus, Plaintiffs

accusations of bad faith in connection with EOUSAs release of the Choi prosecution materials

fail as a matter of fact and law. See Greenberg , 10 F. Supp. 2d at 23; Nationwide Bldg. Maint. ,

559 F.2d at 712 n.34.

IV. PLAINTIFF C ANNOT NOW BROADEN H IS FOIA R EQUEST BY C HALLENGINGDEFENDANT S VOLUNTARY DISCLOSURES M ADE IN T HIS L ITIGATION

Since filing his original Complaint, Plaintiff has sought to expand his FOIA request

through discovery requests and through challenges to the voluntary searches and disclosures

6 Although records submitted in connection with the Choi prosecution are not responsiveto Plaintiffs FOIA request, Defendant, as a courtesy, has offered to provide to Plaintiff any andall documents available on PACER relating to the Choi prosecution and has further offered toinquire if it would be possible to produce a copy of the trial exhibits in that prosecution. Plaintiffhas rejected those offers and taken the position that EOUSA should not have made the release

because it was a red herring. ( See Singh Decl. Ex. M at p. 9). Plaintiff, instead, has requestedan index under Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977(1974), as to the privacy-encumbered documents that were withheld from the release. (SinghDecl. Ex. M at pp. 8-9). A Vaughn index is not required for documents that are not responsive toa FOIA request. See Competitive Enter. , 12 F. Supp. 3d at 114 (finding agency was notrequired to release [non-responsive records] nor further justify their withholding and notingagencys inclusion of non-responsive documents in a Vaughn index undermined the courts goalof evaluating the propriety of the agencys claimed FOIA exemptions); see also Citizens for

Responsibility & Ethics in Washington v. U.S. Dept of Justice , 48 F. Supp. 3d 40, 52 (D.D.C.2014) (rejecting plaintiffs argument that agencys release of non-responsive documents, madein error, was a tactic to avoid releasing documents that otherwise are not subject to a FOIAexemption). Further, to the extent that Plaintiff challenges any withholdings based on thePrivacy Act, Plaintiff has not exhausted his administrative remedies and the Court, therefore,lacks subject matter jurisdiction over any such challenge. See Barouch v. U.S. Dept of Justice ,962 F. Supp. 2d 30, 68 (D.D.C. 2013) (finding Privacy Act does not have the sameconstructive-exhaustion provision as FOIA and dismissing unexhausted Privacy Act claimsagainst the EOUSA for lack of subject matter jurisdiction).



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Defendant made in an attempt to resolve Plaintiffs concerns raised for the first time in this

litigation. Plaintiff, however, cannot expand his request after an agency has responded and

litigation has commenced. See, e.g. , Amnesty Intl , 2008 WL 2519908 at *13 (finding agency is

not required to conduct another search based on a subsequent clarification of the FOIA request);

Biberman v. Fed. Bureau of Investigation , 528 F. Supp. 1140, 1144 (S.D.N.Y. 1982) (It would

be untenable to hold that, as the litigation proceeds, a plaintiff, by continually adding new

requests could command a priority based on the date of the initial requests. Stated simply, the

litigation would then be a vehicle for endless additional FOIA requests and would effectively

grant to litigating plaintiffs a preference over all other FOIA claimants. (quotation and editingmarks 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.); Gillin v. Internal

Revenue Serv. , 980 F.2d 819, 823 n.3 (1st Cir. 1992) (noting plaintiffs request to modify or

clarify the FOIA request in litigation amounted to an impermissible attempt to expand a FOIA

request after the agency has responded and litigation has commenced).

The documents Defendant voluntarily provided to Plaintiff, as a courtesy, consisted of

materials from the United States Attorneys Manual (USAM) and other publicly-available

sources. The materials were not responsive to Plaintiffs FOIA request, which sought records

relating to the prosecution of Choi, the targeting of activists for prosecution, the approval of

prosecution of activists, or the impact on any constitutional or civil rights of activists. As a

result, Defendant was not obligated to produce these materials. See Pub. Investors Arbitration ,

930 F. Supp. 2d at 72.



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Even if they were somehow responsive, the materials provided to Plaintiff are public

information, most of which are available on the DOJ website provided in the October 13, 2015

letter, as well as in the FOIA Library of the DOJ website

(http://www.justice.gov/usao/resources/foia-library) . As such, they would have been exempt

from any production in response to a FOIA request. See 5 U.S.C. 552(a)(2) (requiring

proactive disclosures of certain information), 552(a)(3)(A) (exempting from an agencys

response to a FOIA request those documents already available pursuant to 552(a)(1) or (a)(2));

see also Antonelli v. Fed. Bureau of Prisons , 591 F. Supp. 2d 15, 25 (D.D.C. 2008) (finding

agency was not obligated under the FOIA to produce . . . information [that] is publiclyaccessible via its website or the Federal Register); Crews v. Internal Revenue Serv. , No. 99-

8388, 2000 WL 900800, at *6 (C.D. Cal. Apr. 26, 2000) (recognizing that documents that are

publicly available either in the IRS reading room or on the internet . . . [are] not subject to

production via FOIA requests).

Accordingly, Plaintiff cannot broaden his FOIA request by now seeking new records not

requested in the April 30, 2013 FOIA request. See Gillin , 980 F.2d at 823 n.3.

V. PLAINTIFF F AILS T O STATE A C LAIM F OR AN ALLEGED P ATTERN AND P RACTICE O FFAILING T O R ESPOND T O FOIA R EQUESTS

Plaintiffs claim of a pattern and practice of delay fails because Plaintiff has not

articulated the type of pattern and practice that gives rise to such a cause of action. The

Second Circuit has not yet recognized or articulated the inquiry relevant to a pattern or practice

claim in the FOIA context. Pietrangelo v. U.S. Army , 334 F. Appx 358, 360 (2d Cir. 2009).

However, where courts have permitted such a cause of action to proceed, the actions at issue did

not include an isolated delay or an egregious response to a FOIA request. See Nulankeyutmonen

Nkihtaqmikon v. Bureau of Indian Affairs , 493 F. Supp. 2d 91, 114-15 (D. Me. 2007) (finding

http://www.justice.gov/usao/resources/foia-libraryhttp://www.justice.gov/usao/resources/foia-library


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that, although agency may not have met obligations under the FOIA by failing to provide a

timely response, the plaintiff could not state a pattern-and-practice claim because the FOIA

response was not the type of impermissible pattern and practice the law contemplates and

noting that such claims proceed where there are egregious circumstances) (discussing Payne

Enters., Inc. v. United States of Am. , 837 F.2d 486, 494 (D.C. Cir. 1988)), modified by , 601 F.

Supp. 2d 337 (D. Me.), 672 F. Supp. 2d 149 (D. Me. 2009); Pub. Emps. for Envtl. Responsibility

v. U.S. Dept of the Interior , No. 06-CV-182, 2006 WL 3422484, at *9 (D.D.C. Nov. 28, 2006)

(denying plaintiffs claim where it point[ed] only to [the agencys] isolated response to the

FOIA request at issue in this case, which by itself is insufficient to demonstrate a policy or practice of delayed or incomplete responses to FOIA requests (footnote omitted)); cf. also

Payne Enters. , 837 F.2d at 491 (So long as an agencys refusal to supply information evidences

a policy or practice of delayed disclosures or some other failure to abide by the terms of the

FOIA, and not merely isolated mistakes by agency officials, a partys challenge to the policy or

practice cannot be mooted by the release of the specific documents that prompted the suit.

(footnote omitted)). Rather, courts outside of this Circuit have permitted such claims only where

there has been a specific showing that the agency has a policy or practice of delay or

nonresponsiveness. See Payne Enters. , 837 F.2d at 487-88, 491 (permitting pattern-and-practice

claim to proceed where agency conceded that it follows an impermissible practice in

evaluating FOIA requests based on an informal policy that refuses the release of contract bid

abstracts).

If a plaintiff does not establish that there is a pattern or practice of noncompliance with

FOIA, courts will routinely dismiss those claims are not ripe for review. See, e.g. , OSHA

Data/CIH , 220 F.3d at 168-69 (finding claim moot where agency responded to the FOIA request,



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albeit delayed, and plaintiff offered only the mere allegation of an agency policy that would

violate FOIA); Regl Mgmt. Corp. v. Legal Serv. Corp. , 186 F.3d 457, 465 (4th Cir. 1999)

(dismissing FOIA claim as unripe where agency produced requested documents and plaintiff did

not show that agency had a fully developed policy of withholding from third parties documents

relating to an ongoing investigation); Swan View Coal. v. Dept of Agric. , 39 F. Supp. 2d 42, 47

(D.D.C. 1999) (dismissing claim for declaratory relief where agencys failure to timely respond

to FOIA request was an aberration).

Here, Plaintiff has not, and cannot, identify any evidence that EOUSA would routinely

refuse to respond to FOIA requests as a matter of policy or practice. Rather, as set forth in theStone Declaration, the delay in processing Plaintiffs FOIA request was due to the fact that

EOUSA could not locate a copy of the request within its files. 7 (Stone Decl. 4-5). Indeed, on

May 20, 2014, OIP responded to Plaintiffs appeal by indicating that EOUSA did not have a

copy of Plaintiffs FOIA request and for that reason, the appeal was being remanded. (Singh

Decl., Ex. H). This singular instance does not indicate a pattern and practice of delay that rises

to the level of actionable conduct under the FOIA. See, e.g. , Swan View , 39 F. Supp. 2d at 47.

VI. PLAINTIFF C LAIMS O F M ISREPRESENTATION AND BAD F AITH AND R EQUESTS F ORT HE APPOINTMENT O F A M ONITOR AND T HE IMPOSITION O F SANCTIONS FAIL AS A M ATTER O F L AW

Here, Plaintiff alleges that the searches and response to his FOIA request, and delay in

doing so, included acts of bad faith and misrepresentations. ( See Dkt. No. 15 at 8, 11, 27, 43,

47, 49, 50, 53, 57, 61). Based on those allegations, Plaintiff seeks the appointment of a monitor

and the imposition of sanctions. ( See Dkt. No. 15 at p. 31 E). These allegations and claims fail

as a matter of law.

7 For this same reason, EOUSA could not confirm that Plaintiff properly filed his FOIArequest. (Stone Decl. 5).



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First, as set forth above, EOUSA has not engaged in bad faith. It, with USAO-DC,

conducted reasonable searches as required by FOIA and decided to make a release of non-

responsive, publicly-available documents relating to the Choi prosecution. Focusing the

searches on USAO-DC files does not establish any bad faith. EOUSA properly searched USAO-

DC because that is the Office that was responsible for the prosecution of Daniel Choi and

Plaintiffs FOIA request, administrative appeal, and Complaint repeatedly stated that Plaintiff

sought records and information held by USAO-DC.

Also, EOUSAs release of non-responsive, publicly-available documents that related

generally to the prosecution of Daniel Choi and the alleged vindictive prosecution was provided in the spirit of the FOIA. EOUSA was within its authority to make such a release and

did so in good faith pursuant to the Attorney Generals guidelines. See Memorandum for Heads

of Executive Departments and Agencies, The Freedom of Information Act (FOIA), at 1.

That EOUSA did not produce the entire record available from the Courts on PACER or the entire

Choi prosecution is of no moment as those records are not responsive to Plaintiffs FOIA

request. Thus, EOUSAs response was not made in bad faith.

Second, Plaintiff cannot asset a claim for misrepresentation. Plaintiff appears to allege

that DOJ made a misrepresentation in its Answer to the original Complaint when it admitted that

Plaintiffs email of April 30, 2013 was received but denied that a copy of Plaintiffs FOIA

request could be located in EOUSAs files. ( See Dkt. No. 15 at 61 (referring to Dkt. No. 9 at

4, 29, and 34-38)). No misrepresentations have been made. In its Answer to the original

Complaint, DOJ admitted that Plaintiff sent emails to personnel staff at USAO-DC, but averred

that DOJ could not locate a copy of Plaintiffs FOIA request in EOUSA files. ( See Dkt. No. 9 at

4, 29, and 34-38; Dkt. No. 17 at 4, 29, 34-35, 61(b)). That USAO-DC personnel received a



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copy of Plaintiffs FOIA request does not mean that EOUSA received a properly filed FOIA

request. See 5 U.S.C. 522(a)(3); 28 C.F.R. 16.3; 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).

Third, where no documents have been located that are responsive to Plaintiffs FOIA

request following a reasonable search, the appointment of a monitor is simply unnecessary and

unwarranted. Although a district court has broad discretion to appoint a compliance

monitor[,] external monitors have been found to be appropriate where consensual methods of

implementation of remedial orders are unreliable or where a party has proved resistant orintransigent to complying with the remedial purpose of [an] injunction[.] United States v. Apple

Inc. , 992 F. Supp. 2d 263, 280 (S.D.N.Y. 2014) (quoting United States v. Yonkers Bd. of Educ. ,

29 F.3d 40, 44 (2d Cir. 1994)), affd , 787 F.3d 131 (2d Cir. 2015). See also Fed. R. Civ. P.

53(a)(1) (authorizing court to appoint a master in limited circumstances). Plaintiff has not

identified any basis for the appointment of a monitor in this case.

Fourth, any claims for sanctions would also be futile because the FOIA does not

authorize sanctions as a remedy and there has been no showing that Defendant has sought to

frustrate this Courts proceedings. See, e.g. , OMeara v. Internal Revenue Serv. , 142 F.3d 440,

1998 WL 123984, at *1 (7th Cir. Mar. 17, 1998) (order) (FOIA . . . does not authorize sanctions

as a remedy for failure to disclose documents.); Brown v. Fed. Bureau of Investigation , 873 F.

Supp. 2d 388, 408 (D.D.C. 2012) (denying plaintiffs request for sanctions where the court could

find no reason for such an extreme punishment without substantial evidence that defendant

frustrated judicial proceedings).



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Accordingly, Plaintiffs claims of bad faith and misrepresentation fail, and the Court

should dismiss his requests for the appointment of a monitor and the imposition of sanctions.

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court dismiss

Plaintiffs Amended Complaint and all claims asserted against it therein, enter summary

judgment in Defendants favor, and grant Defendant any such other and further relief as this

Court may deem proper and just.

Dated: Brooklyn, New York November 23, 2015

ROBERT L. CAPERSUnited States AttorneyEastern District of New York

Attorney for Defendants271 Cadman Plaza East, 7th FloorBrooklyn, New York 11201

By: s/Rukhsanah L. SinghRUKHSANAH L. SINGHAssistant United States Attorney(718) [email protected]
