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Flores
3421
77th
Street,
No.
406
Jackson
Heights,
New
York
11372
louisflores@louisflores.com
1
(646)
400-1168
15
June
2015
Re
:
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.
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.
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.
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 :
Louis
Flores
34-21
77th
Street,
Apt.
406
Jackson
Heights,
New
York
11372
Phone
:
(646)
400-1168
louisflores@louisflores.com