After initial conference with federal magistrate judge, progress is made on FOIA lawsuit

By LOUIS FLORES

U.S. Magistrate Judge Roanne L. Mann convened on Wednesday morning an initial conference between the parties to a federal lawsuit filed pursuant to the Freedom of Information Act, or FOIA, at the U.S. District Courthouse in downtown Brooklyn. 

The lawsuit, filed by the author of this report, against the U.S. Department of Justice, or DOJ, seeks guidelines issued by the government that balance the rights of activists against prosecution cases that the government may bring against activists.

Present for the initial conference were U.S. Magistrate Judge Mann ; Rukhsanah L. Singh, an Assistant U.S. Attorney with the U.S. Attorney's Office for New York's eastern district, representing the DOJ ; the author of this article, who is also the publisher of Progress Queens ; and two Court clerks.

During the initial conference, which lasted approximately 70 minutes, Magistrate Judge Mann addressed various issues that had been presented to her by the Plaintiff in the case, as well as by the government in its objections to Plaintiff's demands.

Magistrate Judge Mann denied Plaintiff's request to conduct discovery in this case, due to the fact that the lawsuit was subject to FOIA, which provisions usually do not ordinarily allow for the conduct of discovery, even though the Plaintiff stated that the lawsuit was also seeking relief under the First Amendment, to which there are no restrictions on the conduct of discovery.  The Court noted the DOJ's objection to the conduct of discovery.  Plaintiff stated that there was precedent in a Second Circuit case that held that judicial records should be made available to the public.  However, Magistrate Judge Mann stated that, notwithstanding, any guidelines would only become judicial records, provided that such documents were filed with a court during judicial proceedings.  In the Magistrate Judge's omnibus order following the initial conference, Magistrate Judge Mann cited the case of Carney v. U.S. Dep't of Justice, 19 F.3d 807 (2d Cir. 1994) as authority for denying Plaintiff's request to conduct discovery.

Between the filing of the lawsuit and the date of the initial conference, the DOJ answered the Plaintiff's FOIA Request, which had originally been filed over two years ago, with a discretionary release of records that Plaintiff asserted was nonresponsive to the FOIA Request.  Magistrate Judge Mann asked Assistant U.S. Attorney Singh to described how the DOJ was able to produce discretionary records, which the government itself has acknowledged were non-responsive to the FOIA Request.  Magistrate Judge Mann asked whether the DOJ either found no such guidelines, as being sought by the FOIA Request, to have existed or whether the records being requested could not be found.  Assistant U.S. Attorney Singh stated that during the conduct of the search for records, the records being requested could not be found.

During the discussion between Magistrate Judge Mann and Assistant U.S. Attorney Singh about the DOJ's conduct of the search, Magistrate Judge Mann was able to draw out information about the DOJ's search.  Assistant U.S. Attorney Singh stated that there are various addresses for the Executive Office of United States Attorneys, or EOUSA, and that the addressed used by the Plaintiff in the FOIA Request was specific to the U.S. Attorney's Office for the District of Columbia.  Plaintiff had objected to the DOJ's conduct of the search, which had been limited to the U.S. Attorney's Office for the District of Columbia, and it was during Wednesday's initial conference when Assistant U.S. Attorney Singh explained for the first time the DOJ's rationale for having limited the search thusly (according to the address on the FOIA Request).

Even though Magistrate Judge Mann noted that the EOUSA is the correct DOJ component that must respond to FOIA Requests submitted to the DOJ, Assistant U.S. Attorney Singh stated that the DOJ made a distinction about how the FOIA Requests are addressed in terms of determining the scope of searches for records.  Notwithstanding, Magistrate Judge Mann suggested that Assistant U.S. Attorney Mann consider conducting a search of the records of Main Justice, so that the government could approach this litigation in the most efficient manner.  Main Justice refers to the DOJ's headquarters in Washington, DC.  

As Magistrate Judge Mann noted, nothing precluded the Plaintiff from submitting another FOIA Request, which would act to either prolong the subject case or could lead to a subsequent lawsuit, in each case, prolonging litigation.  Although Assistant U.S. Attorney said she could consult with the DOJ, to see if the DOJ would look into it, in Her Honor's omnibus order, Magistrate Judge Mann suggested that the government "voluntarily search the files of Main Justice to produce any written guidelines for prosecution of activists."

When Plaintiff noted that the DOJ had acted in bad faith by producing non-responsive records in its FOIA Response, the Plaintiff highlighted examples where in the discretionary release made by the DOJ there were references to the kinds of documents that Plaintiff had been seeking, but which the DOJ failed to produce.  Plaintiff further noted to Magistrate Judge Mann that, overall, Plaintiff considered the discretionary release of records made by the DOJ to have created a red herring, to deliberately distract from the search of records Plaintiff had been diligently seeking.  Plaintiff added that Plaintiff had prepared an index of records that more specifically referred to the kinds of records that Plaintiff had been seeking, and Plaintiff produced and shared such index with Assistant U.S. Attorney Singh at the initial conference.

Assistant U.S. Attorney Singh and Magistrate Judge Mann then discussed whether Plaintiff was trying to enlarge the scope of the FOIA Request since it had been filed.  Magistrate Judge Mann and Assistant U.S. Attorney Singh noted that the FOIA Request appeared to be centered on the government's prosecution of Lt. Daniel Choi, a noted LGBT civil rights activist, who led the charge to overturn the U.S. military's discriminatory policy known as "Don't Ask, Don't Tell."  Plaintiff objected, stating that the first section of the FOIA Request addressed guidelines, generally, before focusing on the government's prosecution of Lt. Choi, adding that DOJ's discretionary release of records was incomplete, repeating that the FOIA Response had created a situation where the Court was now having to debate the release of the incomplete records, when the discretionary release was, in the opinion of the Plaintiff, a red herring, since the government should have already been obligated to produce all of the records requested.  

Assistant U.S. Attorney Singh noted that the index produced by Plaintiff that morning contained references to records from 2015, even though the FOIA Request had been filed in 2013, to which Plaintiff responded that the DOJ had only been moved to provide a FOIA Response until after Plaintiff filed, in 2015, the complaint in the subject case.

Plaintiff stated that, even though the government was obligated to provide the records missing from the discretionary release and Plaintiff asked the Court to make a determination as to such, the real fight for the records Plaintiff was seeking were noted on the index of examples that Plaintiff had shared with Assistant U.S. Attorney Singh that morning.  Plaintiff specifically mentioned that the index prepared and produced by Plaintiff to Assistant U.S. Attorney Singh had been in accordance with Plaintiff's stated intention in his filing with the Court.

Magistrate Judge Mann stated that before the government would be allowed to proceed with its proposed schedule of filing its dispositive motions, the government should consider conferring with Plaintiff to narrow the scope of the search.  Magistrate Judge Mann even asked the government to consider sharing with Plaintiff the sworn statements that would describe how the search was conducted, so that Plaintiff could have more information about the search, allowing the Plaintiff to challenge the nature of the search, if necessary.

Magistrate Judge Mann then turned the Court's attention to Plaintiff's complaints about bad faith.  Plaintiff stated that the DOJ's production of a red herring proved that the DOJ was not interested in providing responsive records to the FOIA Request.  Plaintiff moved to be allowed to amend the complaint to include allegations of bad faith and to seek remedies for such complaints.  The Court noted Plaintiff's prior, written request.  Magistrate Judge Mann noted that she generally allowed parties to make requests at initial conferences to amend the pleadings.  Magistrate Judge Mann said that she would allow the Plaintiff to amend the complaint over the DOJ's objection, noting, however, with a glance at Assistant U.S. Attorney Singh, that such amendment would not sway her ruling on the conduct of discovery, adding that her ruling to allow the amending of the complaint would not prejudice the government to any objection that the DOJ wanted to raise in its defense.  Plaintiff thanked Her Honor.

After conferring on possible dates, the Plaintiff and the Magistrate Judge agreed that the Plaintiff would amend the complaint by September 30.  Before the initial conference concluded, Magistrate Judge Mann outlined future steps in the litigation.  The Court indicated that the DOJ would be encouraged to file its certifications prior to serving its dispositive motions, that the parties should confer with each other to eliminate issues, and that the Court expected the filing of a joint status report by November 6.  

As an administrative matter, the Court approved Plaintiff's request to be afforded the privilege of filing documents electronically with the Court, a privileged that Magistrate Judge Mann warned Plaintiff was not to be abused or used to flood the Court with paperwork, an agreement that Plaintiff understood and made with the Court.  Magistrate Judge Mann promised to record a minute entry in the docket announcing her orders.

Prior to the initial conference, Assistant U.S. Attorney Singh had asserted to Plaintiff that the DOJ would be seeking to set a schedule to allow the DOJ to file its motion for summary judgement, a legal maneuver intended to advance the litigation to rapid conclusion, given that the DOJ had nominally answered the FOIA Request.  That Magistrate Judge Mann had issued recommendations to the contrary allowed Plaintiff to attempt to seek more records from the DOJ before the Magistrate Judge Mann would approve a schedule for the filing of dispositive motions.

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