WEEK IN REVIEW : FOIA updates regarding the prosecution of activists and Bharara's speeches

By LOUIS FLORES

The Federal judge assigned to Progress Queens' Freedom of Information Act lawsuit against the U.S. Department of Justice has remanded the review of dispositive motions to the case’s magistrate judge, and the Executive Office for United States Attorneys has acknowledged a FOIA request Progress Queens filed against the office of U.S. Attorney Preet Bharara.

Prosecution of activists

U.S. District Court Judge Joan Azrack entered an order on Friday, referring the Government’s motion for summary judgment and Progress Queens’ Rule 52 motion to U.S. District Court Magistrate Judge Roanne Mann for a report and recommendation.

U.S. District Court Judge Azrack’s order followed the commencement of dispositive motion practice in a lawsuit filed by the publisher of Progress Queens after failed attempts by Progress Queens to obtain records responsive to a FOIA request about the Government’s prosecution of activists. Although the FOIA request was constructed around the Government’s prosecution of former Lt. Daniel Choi, the FOIA request was written broadly enough to encompass other records, including records about policies, guidelines, and procedures.

During proceedings before the U.S. District Court, the Government attempted to narrowly read the FOIA request. Notwithstanding, the Government produced some records about the Government’s prosecution of activists after an order was entered by U.S. District Court Magistrate Judge Mann, and those records indicated that other records were likely to exist. The publisher of Progress Queens has alleged that the Government had engaged in misconduct before the commencement of the lawsuit and during proceedings before the U.S. District Court, including by withholding other records that likely exist, and a second FOIA request was submitted to the Civil Rights Division of the U.S. Department of Justice after the commencement of the lawsuit. The Government has chosen to willfully ignore to its own detriment the second FOIA request.

After the Government refused to coöperate with the release of all of the records during the preliminary proceedings of the lawsuit, U.S. District Court Magistrate Judge Mann ordered that all legal arguments be directed in the form of dispositive motions to then U.S. District Court Judge John Gleeson, who has, in the time since, retired from the bench. The case was then reassigned to U.S. District Court Judge Azrack.

It is not known why the case now returns to U.S. District Court Magistrate Judge Mann for report and recommendation.

The Government is represented by Assistant U.S. Attorney Rukhsana Singh of the U.S. Attorney’s Office for New York’s eastern district, and the publisher of Progress Queens is appearing pro se before the U.S. District Court.

Speeches delivered by Preet Bharara

In correspondence received by Progress Queens from the Executive Office for United States Attorneys, or EOUSA, the Government has acknowledged the FOIA request filed by Progress Queens, seeking records about the speeches made by U.S. Attorney Bharara.

In the correspondence, the EOUSA denied the request made by Progress Queens seeking the expedited processing of the FOIA request ; although, the Government appeared to indicate that Progress Queens would qualify for a waiver of fees associated with the processing and duplication of records.

The FOIA request filed by Progress Queens arose after a spokesperson for the U.S. Attorney’s Office for New York’s southern district decided against releasing a conformed transcript of notes used by U.S. Attorney Bharara to deliver a speech on 8 April at a convention of the New York Press Association in the resort town of Saratoga Springs, New York.

After the spokesperson initially informed Progress Queens that the U.S. Attorney’s Office would be releasing a conformed transcript of prepared remarks, the spokesperson then informed Progress Queens that there was no transcript.

The FOIA request seeks a list of all speeches, recordings or transcripts of the complete speeches, records about the policies and procedures of the U.S. Attorney’s Office to record the speeches made by U.S. Attorney Bharara, and costs associated with travel and accommodations, if any, related to the making of the speeches.

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