Judge Koeltl assigned to oversee FOIA lawsuit over speeches given by U.S. Attorney Bharara

By LOUIS FLORES

The Clerk's Office of the U.S. District Court for the Southern District of New York has assigned Progress Queens' Freedom of Information Act lawsuit to U.S. District Court Judge John Koeltl, Progress Queens has learned. A U.S. Magistrate Judge has not yet been assigned. Because of an application filed by the publisher of Progress Queens, the next step in the litigation will be for the Clerk's Office to arrange for an officer of the U.S. Marshals Service to serve the Complaint on the Defendant.

The FOIA lawsuit was filed by the publisher of Progress Queens after the Defendant, the U.S. Department of Justice, failed to process a public records request filed under FOIA within the time prescribed by the statute, failed to approve a fee waiver, and failed to answer an appeal of the agency's determinations. As a summary, the FOIA Request sought records about (i) the dates, times, locations, and hosts of the speeches given by U.S. Attorney Preet Bharara ; (ii) recordings in any format of the speeches, including transcripts ; (iii) the amounts paid to cover the costs of the speeches, including travel ; and (iv) policies and procedures for the handling of records about the speeches.

In the past, U.S. Attorney Bharara has admitted that the Nation's top Federal prosecutor for New York's southern district heads an office of prosecutors that has wide discretion and power to bring prosecutorial cases, sometimes invoking the nickname of "the Sovereign District of New York" that is often used to describe his office's independence. If U.S. Attorney Bharara has reason to believe that there is official wrong-doing taking place, for example, he has discretion to obtain records by simply sending a letter and ordering a van to be driven to a location for the collection of records and documents, as was done in 2014 after news reports were published, indicating that Gov. Andrew Cuomo (D-New York) had agreed to shutter the Moreland Commission under unusual circumstances. The work of U.S. Attorney Bharara and the prosecutors in his office have inspired the public to believe that he is leading the charge to restore integrity in Government, but not much is known about the numerous speeches he gives, except that he gives them.

Besides the content of the speeches, it is not known at what cost the speeches are given

The FOIA Request that underlies the FOIA lawsuit was filed after U.S. Attorney Bharara traveled to the upstate New York resort town of Saratoga Springs to give a speech during the convention of a press association. When the U.S. Attorney's Office refused to agree to release a transcript conformed from written notes known to exist of the speech, the publisher of Progress Queens notified the U.S. Attorney's Office that they were in violation of FOIA.

It is not known who paid for U.S. Attorney Bharara to travel to Saratoga Springs to deliver the speech. In the past, U.S. Attorney Bharara has traveled to Albany ; Frankfort, Ky. ; and Cambridge, Mass., amongst other locations outside his primary jurisdiction, to deliver speeches.

Requests made by Progress Queens to individuals at the U.S. Attorney's Office to discuss settlement of the FOIA Request were not answered. (A prior, written offer to settle the FOIA Request along with an unrelated FOIA Request was not accepted by the Defendant.) A request made by Progress Queens to amicably settle the FOIA lawsuit shortly after it was filed was similarly not answered. In unrelated FOIA litigation between the parties, the Defendant has admitted that it litigates FOIA Requests and waits for Courts to enter orders compelling the disclosure of records before the DOJ will consider complying with FOIA.

Because U.S. Attorney Bharara rarely gives one-on-one interviews and because the U.S. Attorney's Office has a policy of generally not allowing Assistant U.S. Attorneys to give press interviews, the only way for the press and for the public to know the thoughts, ideas, and motivations of the Nation's top Federal prosecutors for New York's southern district would be to read the U.S. Attorney's speeches. As was noted in the FOIA lawsuit, a page on the Web site for the U.S. Attorney's Office provides transcripts of only some of U.S. Attorney Bharara's past speeches. Less significant Government officials, such as officials of the U.S. Federal Reserve Bank, post online records of their speeches, including transcripts and, if available, recordings of their speeches.

Statistics published in January 2016 by the FOIA Project indicated that the U.S. Department of Justice is the most frequent Defendant of FOIA lawsuits. The FOIA Project is a program of the Transactional Records Access Clearinghouse, a research center at Syracuse University.