With sur-reply brief filed, FOIA appeals case over DOJ prosecution of activists awaits oral arguments scheduling


The publisher of Progress Queens filed a final brief in a Federal Appeals Court case, seeking the release of records shown to exist and that were highly likely to exist about the prosecution of activists. The brief asked the Appeals Court to overturn a judgment entered by the U.S. District Court for New York's eastern district, in which U.S. District Court Judge Joan Azrack granted summary judgment to the Government Agency withholding the records. The Hon. U.S. District Court Judge Azrack's ruling was based on a Report and Recommendation issued by Chief Magistrate Judge Roanne Mann.

The final Appellate brief filed by the publisher of Progress Queens also sought sanctions and penalties against the Government Agency for bad faith acts and for open records law violations. The records being sought were in response to a request filed with the U.S. Department of Justice, or DOJ, under the Freedom of Information Act, or FOIA.

The publisher of Progress Queens has argued that the DOJ had obligations to be in compliance with FOIA and the spirit of FOIA, and DOJ sought to defend its violations by stating that it could comply with FOIA at its own discretion. Litigation was commenced after the DOJ refused to each of release any records and answer an administrative FOIA Appeal. After litigation was commenced, the DOJ made a red herring disclosure of records, and the DOJ engaged in misconduct by entering altered documents into the Court record, making misrepresentations to the Court, and deliberately providing defective Declarations once the Government moved for summary judgement dismissal of the FOIA Lawsuit. Few meaningful records were disclosed, and the publisher of Progress Queens showed that other records existed and moved for permission to conduct limited Discovery, which can be permitted in FOIA litigation. However, the District Court denied the motion to conduct limited Discovery, thus placing the publisher of Progress Queens at a disadvanage by making it impossible for the publisher of Progress Queens to present facts to defeat the Government's motion for summary judgement. Other procedural errors were also made by the District Court.

Controversies exist over the Government's authority to prosecute activists. Government Executive officials, including then President Barack Obama (D) and then U.S. Attorney General Eric Holder, Jr., stressed the legality of activists engaged in activism. Nevertheless, under former President Obama and former U.S. Attorney General Holder, activists were still prosecuted for their activism, including Lt. Daniel Choi, who was discharged under the U.S. Military's discriminatory policy known as, "Don't Ask, Don't Tell."

In arguing for each of the overturning of the Judgment, the remanding of the case, and the releasing of records, the publisher of Progress Queens argued, in summary, in the sur-reply brief, that there were larger, society stakes vested in the Appeals case, namely, for the media and for the citizenry. "There is substantial public interest in guaranteeing the press's and the citizen's rights to First Amendment-protected documents and activities, and this substantial public interest compels the Government to disclose its guidelines, procedures, policies, and/or protocols for the prosecution of the activists."

The parties now await for the scheduling of oral arguments before the U.S. Court of Appeals for the Second Circuit. The publisher of Progress Queens is appearing pro se. The Government is being represented by Assistant U.S. Attorney Rukhsanah Singh, from the U.S. Attorney's Office for New York's eastern district.

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