U.S. Attorney's Office rejects FOIA reform, as Progress Queens publisher contemplates protest campaign

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Then U.S. Attorney Preet Bharara was recognised as prosecutor of the year by the New York State Bar Association during a ceremony of the lawyers' group's annual convention.

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Former U.S. Attorney Preet Bharara
"Transparency
for thee,
but not for me !"
-- Preet Bharara (metaphorically speaking)

Source : Louis Flores/Progress Queens/Photo Illustration

Progress Queens requests intervention from Chief Judge in FOIA Lawsuit over Preet Bharara speech records

By LOUIS FLORES

Assistant U.S. Attorney Rebecca Tinio, the Government lawyer representing the U.S. Department of Justice in open records litigation filed by the publisher of Progress Queens, has rejected an offer made by the publisher of Progress Queens to settle a civil lawsuit seeking the complete and unredacted release of the speech records of former U.S. Attorney Preet Bharara. The lawsuit was filed in January in U.S. District Court in Manhattan under the Freedom of Information Act, or FOIA, to compel the release of records that the Defendant refused to disclose in response to a FOIA Request. The Hon. U.S. District Court Judge John Koeltl is presiding over the civil litigation.

The publisher of Progress Queens has been keen, in part, on settling the FOIA Lawsuit, because, at the Initial Conference of the parties, the Hon. U.S. District Court Judge Koeltl said that one factor that would determine whether he would compel the Defendant to comply with FOIA would be his apparent desire to protect the reputation of the U.S. Attorney's Office that was formerly headed by then U.S. Attorney Bharara, indicating that perhaps the U.S. District Court would not order the Agency to comply with FOIA for reasons that are not recognised under the Federal open records law. In the time since the Initial Conference, Defendant U.S. Department of Justice has made some releases of records, but approximately 400 pages of records were either withheld or redacted. The withheld documents have not been identified as is customarily done in FOIA litigation by the production of an itemised description known as a Vaughn Index. The publisher of Progress Queens has offered to settle the FOIA Lawsuit in exchange for the Defendant answering some due diligence questions in good faith and adopting a forward-looking reform by making proactive disclosures of speech records under FOIA. However, Assistant U.S. Attorney Tinio has rejected the offer and has, instead, proposed to unilaterally announce a briefing schedule to commence dispositive motion practise. In response, the publisher of Progress Queens filed a request with the Chief U.S. District Court Judge of the Southern District, the Hon. Colleen McMahon, asking that, if dispositive motion practise were allowed to be commenced, then Plaintiff would seek the transfer of the proceedings to a U.S. District Court judge other than the Hon. Koeltl due to his expressed bias in support of the Government office representing the Defendant. The publisher of Progress Queens has also announced an intention to peacefully protest outside of New York City Hall and the Midtown Manhattan office of Gov. Andrew Cuomo (D-New York), to draw public attention to the duplicitous nature of the U.S. Attorney's Office on matters of Government transparency. During the tenure of former U.S. Attorney Bharara, Federal prosecutors bemoaned the lack of transparency in the offices of Government officials, who had become the targets of public corruption investigations. Each of Mayor Bill de Blasio (D-New York City) and Gov. Cuomo have been reported targets of investigations conducted by the Manhattan Federal prosecutors' office. By protesting outside of New York City Hall and Gov. Cuomo's office, the publisher of Progress Queens intends to show that the same Federal prosecutors' office that has been critical of a lack of transparency in New York Government has, itself, been engaged in subverting Government transparency by withholding or redacting speech records, specifically, and by violating FOIA, generally. In unrelated litigation, Defendant U.S. Department of Justice has asserted that the Agency can comply with FOIA at its sole discretion. Another reason given by the publisher of Progress Queens to seek a new judge was the appearance of a record by the Hon. U.S. District Court Judge Koeltl of retaliating against outspoken or activist leaders appearing in his Courtroom.

During the course of the open records litigation, the relationship between the parties has been, at times, tense. After the Government refused to timely file its Answer to the Complaint that initiated the civil lawsuit, the publisher of Progress Queens commenced a liquids-only fast that ended on the twenty-second day, when the Defendant finally filed its Answer. The fast was undertaken to protest the Government's refusal to abide by deadlines set by the rules of civil procedure. A medical examination following the completion of the fast revealed that the publisher of Progress Queens lost approximately 40 lbs. during the liquids-only fast. The Answer filed by the Government listed fourteen (14) defenses in an unusual attempt to deny the publisher of Progress Queens any records under FOIA. Indeed, before the Government asserted its affirmative or other defenses in the Answer, Assistant U.S. Attorney Tinio wrote in the Answer that, "To the extent that a response is required, Defendant denies that Plaintiff is entitled to the requested relief, or any relief whatsoever."

Since being forced to step down from his office by President Donald Trump (R), it was reported by The New York Post that former U.S. Attorney Bharara entered into a $1 million book deal with Knopf, a publisher of high-profile authors. Such an expensive deal for a debut book by an author hinges on exclusivity of information and creating suspense and public interest to drive up initial sales of a book immediately following its release. The book is scheduled for publication in January 2019, according to The New York Post report.

In recent weeks, the publisher of Progress Queens has also sought to settle the FOIA Lawsuit due to unforeseen economic considerations as a result of the open records litigation. The publisher of Progress Queens is appearing pro se and in forma pauperis in the proceedings before the U.S. District Court. After the publisher of Progress Queens interviewed for a consulting position, the subject of the FOIA Lawsuit was discussed as a factor in the loss of the consulting opportunity.

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