U.S. Attorney's Office makes bad faith release of photos in first response to FOIA Lawsuit over Bharara's speeches

Document Drop : Photographs of flow charts constitute the DOJ's first production in response to a FOIA Request, seeking records of former U.S. Attorney Preet Bharara's speeches


A Federal lawyer and her assistant have produced some records to Progress Queens in response to an order for release issued by U.S. District Judge John Koeltl. The records, photographs of large flow charts, were provided to Progress Queens several days after the deadline set by the Hon. Judge Koeltl. These records constituted the first response to a request submitted by Progress Queens under the Freedom of Information Act, seeking four categories of records about the speeches of former U.S. Attorney Preet Bharara. The records were posted online.

The Federal lawyer, Assistant U.S. Attorney Rebecca Tinio, and her assistant, Darian Hodge, made incomplete attempts over several days to deliver the photographs of large flow charts via e-mail, despite repeated notifications made by Progress Queens that the e-mails did not appear to be completely delivered. At one point, the publisher of Progress Queens created a public folder on Google Drive for the U.S. Attorney's Office to use to transfer the e-mails, but Ms. Tinio rejected the arrangement, writing in one e-mail that, "With respect to your request that we send the document release to a Google Drive, we believe that we may not be permitted to release documents that way, and we are looking into it," later clarifying by adding that, "We are not permitted by agency policy to use a Google Drive to send documents."

Assistant U.S. Attorney Tinio, as a Federal attorney, represents the U.S. Department of Justice, the Defendant in a lawsuit filed by the publisher of Progress Queens seeking to compel the DOJ to process the FOIA Request filed for records about the speeches of former U.S. Attorney Bharara. Four categories of records were requested in the FOIA Request : 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. It is not known which category amongst the aforementioned four the photographs were produced in response. Because former U.S. Attorney Bharara rarely agreed to 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 transcripts of the U.S. Attorney's speeches.

In one e-mail sent to Progress Queens, Assistant U.S. Attorney Tinio wrote that the DOJ intended to produce documents, writing in relevant part, that, "As of now, we are not withholding any documents, we are just in the process of collecting them and processing them for release," adding in the same e-mail that, in specific reference to the photographs that were produced, "The photographs included in the release are photos of large poster board demonstratives that were used in press conferences by the former U.S. Attorney. Photos of those large poster boards represent the best quality format that we could provide to you." Assistant U.S. Attorney Tinio must provide the Court with a status update about the DOJ's production of records before 25 May, according to deadlines set by the Hon. Judge Koeltl during an Initial Conference of the parties. During the Initial Conference, the Hon. Judge Koeltl indicated that maintaining the reputation of the U.S. Attorney's Office would be a factor in whether records would be produced in response to the FOIA Request. The only way responsive records will be produced to Progress Queens will be at the sole discretion of the Hon. Judge Koeltl.

An intent to subvert the public interest

The production of photographs that were not directly answerable to any of the four categories of the records identified in the FOIA Request were seen as a bad faith act made by the DOJ, according to the publisher of Progress Queens. One count in the complaint that commenced the FOIA Lawsuit seeks a Court order to deal with the pattern and practise of the DOJ to violate FOIA, according to allegations made in the complaint. As reported by Progress Queens, the DOJ has a pattern and practise of violating FOIA. In 2016, a note published by the Freedom of the Press Foundation revealed that the DOJ had lobbied against strengthening the Federal open records law. Separately, statistics published in 2016 by the FOIA Project indicated that the DOJ was 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. The pattern noted in 2016 was in continuation from years past. In 2014, POLITICO published a report noting that the DOJ was the top Defendant in lawsuits brought by filers of FOIA Requests.

The DOJ's refusal to comply with the Federal open records laws includes deliberately not responding to FOIA Requests within the deadlines set by Federal Code, producing during Court proceedings months-old correspondence never before seen by the parties and representing that the correspondence had been mailed to the parties, introducing altered documents into the Court record, filing inadequate affidavits during Court proceedings, and making misrepresentations during Court proceedings, according to allegations made by the publisher of Progress Queens. Some of the alleged misconduct has been the subject of ethics complaints filed by the publisher of Progress Queens against Government attorneys allegedly involved in the misconduct.

In the past, Government attorneys have been questioned by authorities or created controversy over their roles in connection with alleged misconduct. In 2014, The New York Times reported that Mylan Denerstein, who was Gov. Cuomo's lawyer, agreed to be questioned over her involvement with the Moreland Commission.***** One week after that report, The New York Times revealed in a bombshell report that the administration of Gov. Andrew Cuomo (D-New York) had reportedly hobbled the work of the Moreland Commission, a panel formed to investigate political and campaign corruption. No charges were ever pressed against administration officials over the alleged hobbling of the Moreland Commission. In 2016, The New York Daily News revealed that Zachary Carter, the top Municipal attorney, had approved the withholding and redaction of some documents showing how the de Blasio administration allegedly mishandled the lifting of a deed restriction for Rivington House, a former AIDS hospice in the Lower East Side. The sale of Rivington House was one aspect of a wide-ranging, Federal corruption investigation into the campaign finance activities of Mayor Bill de Blasio (D-New York City). That investigation, too, closed without the pressing of charges against administration officials.

The ability of Federal attorneys at the DOJ to control what public documents are released in response to FOIA Requests follows efforts by former U.S. Attorney General Eric Holder to defend agency powers to investigate the work of journalists, despite the chilling effect it would have on the work of the media, possibly leading to conditions that would give rise to the prior restraint of the press. More recently, other senior, Federal law enforcement officials, including Federal Bureau of Investigation Director James Comey, have attempted to discredit the work of journalists or open records advocates.

***** CORRECTION : Due to an editing error, a lawyer, who provided counsel to Gov. Andrew Cuomo, was described as corrupt. No such legal finding was ever made. Progress Queens regrets the error.

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