By LOUIS FLORES
The publisher of Progress Queens has filed an objection to the Report and Recommendation issued by Chief Magistrate Judge Roanne Mann, suggesting that the U.S. District Court dismiss a lawsuit seeking the release of records about the Federal Government's prosecution of activists.
The records being sought were outlined in a request filed in 2013 under the Nation's Freedom of Information Act. That request was structured as a list of 18 items. For over two years, the U.S. Department of Justice, the agency to which the FOIA request was addressed, neither released records nor explained its failure to comply with FOIA.
The publisher of Progress Queens filed a complaint in 2015 in U.S. District Court for the Eastern District of New York, seeking judicial intervention in the dispute. In the time since the complaint was filed, the litigation was being managed by the Hon. Chief Magistrate Judge Mann. Only upon orders issued by the Hon. Chief Magistrate Mann has the DOJ released some responsive records. However, in motions filed by the publisher of Progress Queens, it was noted that the DOJ has been withholding records that have been shown to exist and records that likely exist. The publisher of Progress Queens has also alleged that the DOJ has engaged in misconduct during the litigation and has requested sanctions against the Government.
In October, the Hon. Chief Magistrate Judge Mann issued a Report and Recommendation following dispositive motion practise initiated by the DOJ. In the Report and Recommendation, the Hon. Chief Magistrate Judge suggested that the litigation should be dismissed.
In the objection filed on Thursday to the Report and Recommendation, the publisher of Progress Queens noted many reasons why the Report and Recommendation should be rejected. The objection requested that the Hon. U.S. District Court Judge Joan Azrack assume management of the litigation, requesting further still that the Hon. Judge Azrack review de novo the dispositive motions.
Under the Obama administration, individuals making FOIA requests are having to resort to litigation in order to compel a Government agency to comply with FOIA. At the close of 2014, a report published by POLITICO noted that "more freedom of information lawsuits were brought against the [F]ederal [G]overnment in 2014 than in any year since at least 2001," adding that the DOJ was the top Defendant in such FOIA lawsuits.
Claiming that the Chief Magistrate Judge ruled incorrectly that the DOJ met the standard for summary judgment and that the Chief Magistrate Judge overlooked the negative implications on FOIA by the Report and Recommendation, amongst other objections, the publisher of Progress Queens wrote that, "To paraphrase an old Cabaret song, Chief Magistrate Judge Roanne Mann was essentially pouring water on a downing FOIA."
From the filing of the FOIA request, the publisher of Progress Queens has claimed that there are First Amendment implications to the Government's withholding records about what guidelines, procedures, policies, and protocols it follows when the Government decides to prosecute activists. In the litigation, the publisher of Progress Queens has claimed that the First Amendment implications include prior restraint on what the media can publish about the Government's prosecution of activists and also a violation of the right of the media to access judicial records.
The bias in favor of the DOJ in the Report and Recommendation issued by the Hon. Chief Magistrate Jude Mann reflects tension in the jurisprudence that has emerged from the Eastern District. On one side, there are Federal judges, who are more closely-aligned with protecting the interests of the Federal Government. And on the other, there are Magistrate judges, who exercise judicial independent to question the actions of the Federal Government.
Some Magistrate judges and Assistant U.S. Attorneys from the Eastern District have achieved public acclaim for their dedication to Government reform and accountability. Raymond Dearie, now a U.S. District Court Judge in the Eastern District, was formerly an Assistant U.S. Attorney and the U.S. Attorney for the Eastern District. Whilst the Hon. Judge Dearie was U.S. Attorney, his office took a leadership role in Government accountability when his office investigated some of the political and campaign corruption that rocked the administration of then Mayor Ed Koch (D-New York City).
At times, the Eastern District has been noted for exercising greater judicial independence, particularly at the Magistrate judge level. The Hon. Judge Dearie, once noted for his office's corruption-fighting record as the nation's top Federal prosecutor in the Eastern District in the mid-1980's, now serves on the U.S. Foreign Intelligence Surveillance Court, where judges routinely approve domestic surveillance warrants requested by the Government. Serving as a check on that system have been some Magistrate Judges, such as the Hon. Magistrate Judge James Orenstein, who also sits in the Eastern District. Like the Hon. Judge Dearie, the Hon. Magistrate Judge Orenstein was formerly an Assistant U.S. Attorney for the Eastern District.
Representing the DOJ in the FOIA litigation has been Assistant U.S. Attorney Rukhsanah Singh. Because the DOJ is a highly bureaucratic agency, ultimate case management on behalf of the Defense in respect of politically-sensitive FOIA requests is directed out of the DOJ in Washington, DC.