Louis

Flores
3421 77th Street, No. 406
Jackson Heights, New York 11372
louisflores@louisflores.com
1 (646) 400-1168

15 June 2015

[By e-mail only to : mann_chambers@nyed.uscourts.gov]

Honorable John Gleeson,

United States District Judge,
United States District Court,
Eastern District of New York,
225 Cadman Plaza East,
Brooklyn, New York 11201.

Dear Hon. Judge Gleeson :

Re :

Louis Flores v. United States Department of Justice

No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Please accept this letter in response to Defendants counsels letter of June 12, 2015,
requesting an extension of time to file the Answer to the Complaint. Plaintiffs lawsuit is
brought pursuant to the Freedom of Information Act (FOIA), which requires the
government to produce duly requested documents. The information and documents
Plaintiff have requested relate to how the government balances the rights of activists in
prosecutorial cases against activists and are of significant public interest, a matter that
remains in the news. See, e.g., Adam Federman, Keystone protesters tracked at border after
FBI spied on 'extremists,' The Guardian (June 8, 2015), http://www.theguardian.com/us-
news/2015/jun/08/keystone-protesters-fbi-watchlisted-terrorism. The constant delay
tactics by Defendant in response to Plaintiffs FOIA Request, which show the governments
disregard of its FOIA obligations and which fail to afford accountability of the government
as FOIA intends, are now creeping into how Defendant regards this Court proceeding.
Plaintiff respectfully asks that the Court compel Defendant to comply with FOIA and with
the deadlines set by the Court.

Due to economic hardship, Plaintiffs cellphone and home Internet access were temporarily
disconnected during the time when Defendants counsel was trying to communicate with
Plaintiff, during which time Plaintiff had no cellphone service and limited Internet access.
Plaintiffs services were restored very late in the afternoon of 11 June 2015, but only after
Defendants counsel had apparently attempted to contact Plaintiff. When the Court
contacted Plaintiff on 12 June 2015, about Defendants request for an extension of time,
Plaintiffs services had certainly been restored, but Plaintiff had not yet checked all of his
e-mail messages to notice Defendants counsels request. Notwithstanding Defendants
counsels inability to reach Plaintiff, Plaintiff would not have consented to Defendants
counsels request for an extension, and Plaintiff reiterates his opposition herein.

Hon. Judge John Gleeson

United States District Court
Eastern District of New York
15 June 2015
Page 2

Defendant had 20 days from which to answer the FOIA Request dated 30 April 2013.
Defendant had 20 days from which to answer the FOIA Appeal dated 06 December 2013.
Defendant had enough time to answer the Complaint ordered served by Summons dated
08 May 2015. Now, Defendant seeks another 32 days from that deadline due to more
delays. Defendants request for an extension of time would only further delay resolution of
the time-sensitive issues at the heart of the FOIA Request, which is the subject of this
litigation. This case had to be filed because the very problem that necessitated this lawsuit
was delays by Defendant. As a consequence of all these delays, Defendant continues to be
in flagrant violation of FOIA, situationally offering excuses for each delay, postponing by
years the processing of Plaintiffs FOIA Request, in violation of the treatment entitled to
Plaintiff by statute. If these delays are allowed to persist, Plaintiff and the public will
continue to be deprived of the records being sought, and Plaintiff asserts that the DOJ will
continue to violate FOIA with impunity. 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).

Plaintiff originally filed the FOIA Request over two years ago, and no documents have been
produced by Defendant. All Defendant has had to offer during the two years that Plaintiffs
FOIA Request has been outstanding have been excuses for its delays. Defendants excuses
have ranged from there only being one person in the applicable District to process FOIA
Requests, to the government shut down of 2013, to its latest excuse, namely, that
Defendant had not yet provided to the United States Attorneys Office for the Eastern
District of New York with the relevant documents and/or information that are necessary
to formulate a response to the pleadings. For purposes of Defendants request for an
extension of time, Plaintiff asks the Court to look to FOIA for guidance.

Defendant is not acting in good faith when it argues that it requires an extension of time to
allow the DOJ to gather the relevant documents and/or information that are necessary to
formulate a response to the pleadings, because this argument fails to account for the fact
that such an excuse is not acceptable under FOIA. The DOJ knows perfectly well it is not
permitted to avoid its FOIA obligations due to internal burdens of its own making. See, e.g.,
Rosenfeld v. DOJ, 2010 WL 3448517, *4 (N.D. Cal. 2010) (holding that the DOJ cannot use
the make-up of its own internal database as a shield to avoid FOIA mandates). Although
the need to process an abnormally large volume of requests may constitute exceptional
circumstances, a predictable agency workload of FOIA requests does not qualify as an
exceptional circumstance. 5 U.S.C. 552(a)(6)(C)(ii) ; see, e.g., Fiduccia v. DOJ, 185 F.3d
1035, 1042 (9th Cir. 1999) (concluding that no exceptional circumstances exist where
employee cutbacks and budget reductions led to a slight upward creep in the caseload
and backlog of FOIA requests at the DOJ) ; see also Donham v. DOE, 192 F. Supp. 2d 877,
882-83 (S.D. Ill. 2002) (concluding that high volume of requests and inadequate resources
do not constitute exceptional circumstances unless such circumstances are not
predictable). Here, the DOJ has provided no evidence of exceptional circumstances that
would justify its failure to file an Answer to the Complaint.

Hon. Judge John Gleeson

United States District Court
Eastern District of New York
15 June 2015
Page 3

In a further display of a lack of good faith, Defendant waited one business day before the
deadline to file its Answer in order to apply to the Court for an extension of time. This
delay reveals that Defendant has not been taking seriously its obligations under FOIA or
this lawsuit. The Court cannot and should not enable Defendant to continue delaying,
without a showing of exceptional cause or circumstances, its obligation to observe the
laws, including FOIA and the deadlines set by this Court.

Furthermore, Defendant is demonstrating its pattern of seeking to cause more delays

without mitigating the ongoing harm Defendant is causing to Plaintiff and the public by
failing to comply with the law, in particular with FOIA. For example, Defendant is not
proposing any schedule by which it will process Plaintiffs FOIA Request. Defendants
counsels request does not address, much less attempt to mitigate, the ongoing harm.

For the foregoing reasons, Plaintiff opposes Defendants request for an extension of time
to file an Answer to the Complaint and requests that Defendant be held accountable for
failing to timely file its Answer. Defendant has had two years to gather the documents
responsive to the FOIA Request, and it has not produced anything but delays. Time is of
the essence. Defendant must comply with the laws, including its obligations under FOIA
and the deadlines set by this Court. Since Defendant has constructively demonstrated
that, for over two years, it continues to be willfully out of compliance with the law,
Plaintiff respectfully requests that the Court enter an order, finding Defendant in default.

Respectfully submitted,

Louis Flores

cc :

[By First Class U.S. Mail and by e-mail to : rukhsanah.singh@usdoj.gov]

Rukhsanah L. Singh, Assistant U.S. Attorney

U.S. Attorneys Office - Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
Attorney for Defendant

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK


LOUIS FLORES,




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


v.
AFFIRMATION

OF SERVICE
UNITED STATES DEPARTMENT OF

JUSTICE,




Defendant.





I, LOUIS FLORES, declare under penalty of perjury that I have served a copy of the
attached PLAINTIFFS LETTER RESPONSE IN OPPOSITION TO DEFENDANTS REQUEST
FOR AN EXTENSION OF TIME upon RUKHSANAH L. SINGH, whose address is :
c/o United States Attorneys Office, Eastern District of New York, 271 Cadman Plaza East,
7th Floor, Brooklyn, New York 11201 by FIRST CLASS U.S. MAIL and by ELECTRONIC
MAIL DELIVERY to : rukhsanah.singh@usdoj.gov.

Dated : Jackson Heights, New York

June 15, 2015

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