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

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

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

UNITED STATES DEPARTMENT OF

JUSTICE,
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

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

RUKHSANAH L. SINGH
Assistant United States Attorney
Of Counsel

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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 Subject
Matter 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 Challenging
Defendants Voluntary Disclosures Made In This Litigation ......................................16
V. Plaintiff Fails To State A Claim For An Alleged Pattern And Practice Of
Failing To Respond To FOIA Requests.......................................................................18
VI. Plaintiff Claims Of Misrepresentation and Bad Faith And Requests For The
Appointment 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. 2d
83 (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)............................... 22
Carney v. Dept of Justice, 19 F.3d 807 (2d Cir. 1994)........................................................ 4, 6, 13
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 5
Citizens for Responsibility & Ethics in Washington v. U.S. Dept of Justice, 48 F. Supp.
3d 40 (D.D.C. 2014) ..................................................................................................................16
CNA Fin. Corp. v. Donovan, 830 F.2d 1132 (D.C. Cir. 1987) ..................................................... 14
Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 12 F. Supp. 3d 100 (D.D.C. 2014) ............ 16
Crews 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) ............................................................................................................................................7
Freedom Watch, Inc. v. Cent. Intelligence Agency, 895 F. Supp. 2d 221 (D.D.C. 2012) ............ 12
Gillin v. Internal Revenue Serv., 980 F.2d 819 (1st Cir. 1992) .............................................. 17, 18
Grand Cent. Pship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999)............................................ 4, 13
Greenberg 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, 2004
WL 1783625 (S.D.N.Y. Aug. 10, 2004) ......................................................................................7
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ............................ 5
Kowalczyk 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) ............................................................................................................................18
OMeara v. Internal Revenue Serv., 142 F.3d 440, 1998 WL 123984 (7th Cir. Mar. 17,
1998) ..........................................................................................................................................22
OSHA Data/CIH, Inc. v. Dept of Labor, 220 F.3d 153 (3d Cir. 2000) ................................... 7, 19
ii

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Payne Enters., Inc. v. United States of Am., 837 F.2d 486 (D.C. Cir. 1988) ................................ 19
Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) ............................................................................. 13
Pietrangelo v. U.S. Army, 334 F. Appx 358 (2d Cir. 2009) ........................................................ 18
Prince 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, 2006
WL 3422484 (D.D.C. Nov. 28, 2006) .......................................................................................19
Pub. 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, 17
Quarles 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) ....................................................................................................................................12
SafeCard Serv., Inc. v. Sec. Exchange Commn, 926 F.2d 1197 (D.C. Cir. 1991) ....................... 13
Scaff-Martinez v. Drug Enforcement Admin., 770 F. Supp. 2d 17 (D.D.C. 2011) ....................... 12
Serv. 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, 9
Swan View Coal. v. Dept of Agric., 39 F. Supp. 2d 42 (D.D.C. 1999) ........................................ 20
Thomas v. Comptroller of Currency, 684 F. Supp. 2d 29 (D.D.C. 2010) .................................... 11
U.S. Dept of Justice v. Tax Analysts, 492 U.S. 136 (1989) ........................................................... 5
United States v. Apple Inc., 992 F. Supp. 2d 263 (S.D.N.Y. 2014), affd, 787 F.3d 131 (2d
Cir. 2015) ...................................................................................................................................22
United States v. Yonkers Bd. of Educ., 29 F.3d 40 (2d Cir. 1994)................................................ 22
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) ................. 16
Voinche v. Fed. Bureau of Investigation, 999 F.2d 962 (5th Cir. 1993)......................................... 7
Statutes
5 U.S.C. 522(a)(3) .................................................................................................................. 8, 22
5 U.S.C. 552(a)(2) ...................................................................................................................... 18
5 U.S.C. 552(a)(3)(A) ............................................................................................................ 5, 18
5 U.S.C. 552(a)(4)(B) ............................................................................................................ 5, 22
Rules
Fed. R. Civ. P. 53(a)(1) ................................................................................................................. 22
Fed. R. Civ. P. 56(a) ....................................................................................................................... 4
Regulations
28 C.F.R. 16.3 .............................................................................................................. 2, 8, 12, 22
Appx. 1 to Part 16 of Title 28 C.F.R......................................................................................... 8, 12
Other Authorities
Attorney General, Memorandum for Heads of Executive Departments and Agencies, The
Freedom of Information Act (FOIA) (March 19, 2009)................................................ 15, 21
iii

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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
1

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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).

EOUSA is the component of DOJ that, inter alia, is responsible for responding to FOIA
requests on behalf of the Offices of the United States Attorneys and EOUSA. A FOIA request to
other 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 and
records 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 numerous
references to USAO-DC and complains that the U.S. Attorneys Office has neither released
responsive records nor explained its failure to do so. (Dkt. No. 1, 43; Dkt. No. 15, 43).
2

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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 nonresponsive, 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 LEGAL 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
4

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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
5

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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.

PLAINTIFFS CLAIMS REQUESTING A RESPONSE TO HIS FOIA REQUEST LACK

SUBJECT MATTER JURISDICTION BECAUSE THEY ARE MOOT
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 or
reported exclusively on computerized databases are being provided to Plaintiff.
6

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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 not
exist. 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 RESPONDED TO PLAINTIFFS FOIA REQUEST

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 USAODC, 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).
8

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Accordingly, to the extent Plaintiff seeks records from any DOJ components other than USAODC, 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
9

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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. 1012).

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

10

Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 15 of 27 PageID #: 251

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). In
instances 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 AntiDiscrimination 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 6701. (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.

12

Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 17 of 27 PageID #: 253

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 governments
search 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

13

Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 18 of 27 PageID #: 254

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, publiclyavailable 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).

Plaintiff appears to believe that EOUSAs use of the words discretionary release
somehow 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 the
release of the Choi prosecution materials, or the voluntary disclosures made after the September
16, 2015 conference, was in lieu of any obligations imposed by the FOIA. Moreover, the release
to Plaintiff was not a discretionary disclosure, as the term of art is used under the FOIA. A
discretionary disclosure (sometimes also referred to as a discretionary release) under the FOIA
occurs when an agency makes a disclosure of exempt records, as a matter of their administrative
discretion, 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 data
normally will be grounded either in its view that none of the FOIA exemptions applies, and thus
that disclosure is mandatory, or in its belief that release is justified in the exercise of its
discretion, even though the data fall within one or more of the statutory exemptions.). The
records released to Plaintiff were not subject to disclosure, and thus not subject to an exemption
under the FOIA, because they were non-responsive to the FOIA request and were publiclyavailable documents.
5
Plaintiff has alleged that the documents provided in the release included references to
records 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 in
Defendants October 13, 2015 letter to Plaintiff. (See Singh Decl. Ex. K at pp. 2-3).
14

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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 make
such 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 CANNOT NOW BROADEN HIS FOIA REQUEST BY CHALLENGING

DEFENDANTS VOLUNTARY DISCLOSURES MADE IN THIS LITIGATION
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 responsive
to Plaintiffs FOIA request, Defendant, as a courtesy, has offered to provide to Plaintiff any and
all documents available on PACER relating to the Choi prosecution and has further offered to
inquire if it would be possible to produce a copy of the trial exhibits in that prosecution. Plaintiff
has rejected those offers and taken the position that EOUSA should not have made the release
because it was a red herring. (See Singh Decl. Ex. M at p. 9). Plaintiff, instead, has requested
an 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. (Singh
Decl. Ex. M at pp. 8-9). A Vaughn index is not required for documents that are not responsive to
a FOIA request. See Competitive Enter., 12 F. Supp. 3d at 114 (finding agency was not
required to release [non-responsive records] nor further justify their withholding and noting
agencys inclusion of non-responsive documents in a Vaughn index undermined the courts goal
of 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, made
in error, was a tactic to avoid releasing documents that otherwise are not subject to a FOIA
exemption). Further, to the extent that Plaintiff challenges any withholdings based on the
Privacy 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 same
constructive-exhaustion provision as FOIA and dismissing unexhausted Privacy Act claims
against 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 editing
marks and citation omitted)); see also Kowalczyk v. Dept of Justice, 73 F.3d 386, 388 (D.C. Cir.
1996) (Requiring an additional search each time the agency receives a letter that clarifies a prior
request could extend indefinitely the delay in processing new requests.); 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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Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 22 of 27 PageID #: 258

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 publicly
accessible via its website or the Federal Register); Crews v. Internal Revenue Serv., No. 998388, 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 FAILS TO STATE A CLAIM FOR AN ALLEGED PATTERN AND PRACTICE OF

FAILING TO RESPOND TO FOIA REQUESTS
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
18

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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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Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 24 of 27 PageID #: 260

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 the
Stone 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 CLAIMS OF MISREPRESENTATION AND BAD FAITH AND REQUESTS FOR

THE APPOINTMENT OF A MONITOR AND THE IMPOSITION OF SANCTIONS FAIL AS A
MATTER OF LAW
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 FOIA
request. (Stone Decl. 5).
20

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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 nonresponsive, publicly-available documents relating to the Choi prosecution.

Focusing the

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

21

Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 26 of 27 PageID #: 262

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 or
intransigent 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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Case 1:15-cv-02627-JG-RLM Document 20-2 Filed 11/23/15 Page 27 of 27 PageID #: 263

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

23

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