Document Drop : Progress Queens files briefs in FOIA lawsuit against DOJ


The publisher of Progress Queens filed on Tuesday pleadings opposing a motion for summary judgment filed by the U.S. Department of Justice.  The government has sought the dismissal of a Brooklyn federal lawsuit filed by the publisher of Progress Queens in a long-running dispute over the release of government records about the prosecution of activists.  In recent years, many questions have been raised about the selective or vindictive prosecution of activists.

The first Plaintiff brief filed against the government was a dual cross motion for partial summary judgment and in opposition of the government’s motion.  The second Plaintiff brief was in support of a motion for sanctions. 

Documented in both of the briefs were vast examples of bad faith acts, which, Louis Flores, the publisher of Progress Queens, asserted, evidenced the government’s lack of compliance with each of the Freedom of Information Act, or FOIA ; with a law against the interfering with government administration, and with professional rules applicable to attorneys.

The government has until February 12 to file its replies, and the publisher of Progress Queens has until February 26 to file any sur-replies.

The request at the heart of this dispute originated in early 2013 as an informal request for documents and information in respect of the government’s prosecution of Lt. Daniel Choi, the international LGBT civil rights activist, who was discharged from the U.S. armed services under the former discriminatory policy known as, “Don’t Ask, Don’t Tell.”  That informal request matured into a request under FOIA, after the publisher of Progress Queens was instructed to submit a FOIA request to the U.S. Attorney’s Office for the District of Columbia.

The DOJ never released any records over the course of the next two years, and the DOJ never explained its failure to release any records.  During that time, the publisher of Progress Queens was briefly represented by counsel, which filed an appeal with the DOJ of its constructive denial of the FOIA request ; obtained a letter from U.S. Representative Joseph Crowley (D-Queens) addressed to the DOJ, requesting that the DOJ answer the FOIA request ; and launched an activism campaign that included protesting in front of former U.S. Attorney General Eric Holder and producing YouTube videos about the FOIA request.  One such video raised First Amendment implications of the DOJ’s refusal to comply with FOIA.

After the publisher of Progress Queens commenced litigation against the DOJ for the release of records, the DOJ claimed that it could comply with FOIA at its discretion.  During proceedings before Brooklyn federal court, the DOJ has fabricated a narrative that it did not have a copy of the FOIA request, has produced altered documents, has introduced at least one suspect document into evidence, and has made improbable claims that Federal prosecutors, particularly, Assistant U.S. Attorney Angela George from the U.S. Attorney’s Office in Washington, DC, do not posses copies of the United States Attorneys’ Manual.

In the DOJ’s pleading, the government claimed that no records exist that are responsive to the FOIA request filed in 2013.  Yet, the government produced some responsive records after the U.S. District Court for New York’s eastern district issued an early order recommending that the DOJ conduct a search for responsive records.  Furthermore, the publisher of Progress Queens demonstrated in the opposition brief that further records likely exist, evidencing the DOJ’s failure to comply with FOIA.  During negotiations for the release of responsive records, the government made a misrepresentation about a component of the DOJ that may have responsive records, triggering the filing of a second FOIA request to compel the DOJ to conduct a complete search for records.

As a consequence of the DOJ’s pattern and practise of violating FOIA with impunity, the publisher of Progress Queens asked the Court to make determinations about the DOJ’s lack of credibility, requesting the imposition of sanctions and penalties, including the appointment of a monitor to bring the DOJ into compliance with FOIA. 

At the close of 2014, POLITICO reported that the top defendant in FOIA lawsuits was the DOJ and its related components.  In 2015, The Associated Press reported that, in respect of FOIA requests, “The government took longer to turn over files when it provided any, said more regularly that it couldn't find documents and refused a record number of times to turn over files quickly that might be especially newsworthy,” adding that “in nearly 1 in 3 cases,” the government’s “initial decisions to withhold or censor records were improper under the law—but only when it was challenged.”

The publisher of Progress Queens is appearing pro se in the lawsuit against the DOJ.  The DOJ is being represented by Assistant U.S. Attorney Rukhsanah Singh, of the U.S. Attorney’s Office for New York’s eastern district.  The discovery phase of the Federal lawsuit was managed by U.S. Magistrate Judge Roanne Mann, and the dispositive motion phase of the Federal lawsuit will be overseen by U.S. District Judge John Gleeson.

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