Progress Queens replied to the DOJ's redaction and withholding of FOIA records of Preet Bharara's speeches

By LOUIS FLORES

After the U.S. Department of Justice admitted that it was withholding 206 pages of records and redacting 179 pages of records about the speeches of former U.S. Attorney Preet Bharara, Progress Queens performed a review of records that were produced to identify priority records that required addressing in order to conclude the litigation required to compel the DOJ to answer the request filed under the Freedom of Information Act for such records. The attorney representing the DOJ, Assistant U.S. Attorney Rebecca Tinio from the U.S. Attorney's Office for New York's southern district, agreed to give Progress Queens until 11 July to review the records for completeness and to produce a report that could be used to identify issues that required addressing. Progress Queens submitted that report two days early, on 9 July. Assistant U.S. Attorney Tinio agreed to review the report. Assistant U.S. Attorney Tinio has yet to submit her response to the Progress Queens report.

When then U.S. Attorney Bharara was the top Federal prosecutor in New York's southern district, he was an advocate for Government transparency. He once commented about how he was pleased that former New York State Assembly Speaker Sheldon Silver (D-Lower East Side) and former New York State Senate Majority Leader Dean Skelos (R-Rockville Centre) chose to try their respective corruption cases in open Court. Such decisions provided the public with documents and information about the conduct of the people's business, according to statements made by then-U.S. Attorney Bharara in an interview he granted for a report published by The New York Times. In the past, former U.S. Attorney Bharara has been a critic of efforts to thwart Government transparency, saying, in relevant part, at one 2013 speech that, "[T]here is a substantial transparency problem throughout New York government."

The DOJ made the release of some records responsive to the FOIA Request after the publisher of Progress Queens filed on 3 January a lawsuit in U.S. District Court, seeking to compel the DOJ to process a FOIA Request filed on 19 August 2016, seeking four categories of records about the speeches of then-U.S. Attorney Bharara. The Complaint was filed in Federal Court after the DOJ never answered a FOIA Appeal. After litigation commenced, when it appeared that the DOJ would seek to exploit civil procedure to its unfair advantage in proceedings in Federal Court, the publisher of Progress Queens commenced a liquids-only fast in protest. The liquids-only fast was broken on the twenty-second day. At a medical examination following the fast, it was noted that the publisher of Progress Queens lost approximately 40 lbs. as a consequence of the fast. The fast was undertaken by the publisher of Progress Queens to draw attention to the DOJ's self-admitted belief that the Agency can comply with FOIA at its discretion.

It is not known how much time the parties have to settle the lawsuit. In any FOIA litigation, Agencies can move to begin dispositive motion practice in Federal Court after Agencies make incomplete record productions, using protracted motion practise to wear down the makers of FOIA Requests, particularly against Plaintiffs appearing pro se, as in the instant case. The litigation is being overseen by U.S. District Court Judge John Koeltl, who said during the Initial Conference of the parties that protecting the reputation of the U.S. Attorney's Office would be a factor in determining whether the DOJ would be ordered to turn over the records responsive to the FOIA Request.

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