The U.S. Department of Justice has admitted withholding and redacting hundreds of pages of records in response to a FOIA Lawsuit filed by the Publisher of Progress Queens.
By LOUIS FLORES
The U.S. Department of Justice has admitted it was withholding 206 pages of records and redacting 179 pages of records about the speeches of former U.S. Attorney Preet Bharara. These admissions were made when the DOJ finally produced records that appeared to at least be partially responsive to a request filed under the Freedom of Information Act, or FOIA, seeking records of the speeches of former U.S. Attorney Preet Bharara. The FOIA Request was filed by Progress Queens on 25 April 2016, but the DOJ violated FOIA by refusing to produce any responsive records, requiring the publisher of Progress Queens to file a lawsuit in U.S. District Court in Manhattan on 3 January 2017 to compel the release of records.
The most recent record production, the fourth since U.S. District Court Judge John Koeltl entered an order, compelling the release of records, were contained in an external hard drive provided to Progress Queens by the DOJ. Besides the external hard drive, the DOJ has in recent weeks produced some records by e-mail, on a CD-ROM, and on a thumb drive. Prior attempts by the DOJ to release the records failed when the DOJ : (i) refused to produce a complete first production of records by e-mail, (ii) produced a password-protected CD-ROM that was not readable by the computer system used by Progress Queens and that could not be opened by using the passwords that were provided to Progress Queens, and (iii) refused to use the free Google Drive online service to transfer the files.
At a hearing between the litigating parties on 13 April 2017, the Hon. Judge Koeltl informed the publisher of Progress Queens that protecting the reputation of the U.S. Attorney's Office would be a factor in determining whether he would order the release of responsive records. The underlying FOIA Request sought records about : (i) the dates, times, locations, and hosts of the speeches given by U.S. Attorney 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.
The first production of records made by the DOJ appeared to only include photographs of giant flow charts and other visual aids used by then U.S. Attorney Bharara during his press conferences. The second and third productions included the first production, which had been, up until that time then, never made it is entirety. New documents in the second and third production included written remarks used by then U.S. Attorney Bharara during press conferences and some public appearances. In the fourth production, the DOJ released records about costs associated with some of former U.S. Attorney Bharara's speeches. The costs for a February 2017 speaking engagement at Harvard University by then U.S. Attorney Bharara was vouchered at $633,49, for example, and a September 2016 trip to New Delhi for a conference on the issue of terrorist use of the Internet was vouchered at $3 278,64, according to selected pages from a trip history report as of 21 April 2017 produced by the DOJ. Other locations to which then U.S. Attorney Bharara traveled at DOJ expense for public appearances included Colorado Springs, Los Angeles, Miami, San Diego, Saratoga Springs, and Toronto, according to the pages of the trip history report that were provided. Regarding costs, the FOIA Request asked for costs for air fare, ground transportation, hotel accommodations, meals, entertainment, per diem allowances, and all other incidental travel costs. The selected pages from the trip report, which were produced, did not classify any expenses according to any types of costs.
Several pages were withheld from the trip report without explanation, annotation, or invocation of FOIA Exemptions on the trip report. In a cover letter, dated 16 June 2017, the DOJ claimed exemptions under FOIA §§ 552 (B)(5), (B)(6), and (B)(7)(c) as reasons for redacting or withholding records. The exemptions correspond to inter-agency documents that would not be available to a party not in litigation with an agency, personnel or medical files and similar files the disclosure of which would constitute an invasion of privacy, and a general invasion of privacy provision, according to an explanation of exemptions provided by the DOJ. In the past, former U.S. Attorney Bharara and Federal prosecutors in his office have defended the numerous public appearances and public statements made by then U.S. Attorney Bharara, generally characterising them, at various times, as, "squarely within the role and duty of the U.S. Attorney" in a legal filing that was reported about in an article published by The New York Daily News about remarks made by then U.S. Attorney Bharara at an anti-corruption conference at Fordham Law School, at which he said that he directed some of his public statements "to the ears of the of the vast majority of people, in any institution whether it’s a school, or a bank, or it’s a hedge fund, or it’s a Council leader’s office, or it’s a legislature, who are good and honorable and honest and decent and want to do the right thing," according to a report published by The New York Observer. At a speech at New York Law School in 2015, then U.S. Attorney Bharara said that some of the speeches he has given as part of his official duties have included speaking to "business groups and to students at business school" and "to hedge fund industry folks and heads of banks and people, who are involved in compliance." If former U.S. Attorney Bharara's public appearances and speeches were related to his duties, it is not known how privacy rights could be invoked by the DOJ to redact or withhold records about his speeches.
The fourth production of records, included on an external hard drive, included 53 video recordings of then U.S. Attorney Bharara's public appearances, two of which appeared to be duplicates. Of the 53 videos, only four video records appeared to be of non-press conference appearances. Those four non-press conferences were : a 2012 speaking engagement before an Asian American and Pacific Islander Heritage Commemoration, a 2014 visit with former New York City Mayor David Dinkins, a speaking engagement before a Crimes Against Children conference, and a speaking engagement at the 2014 Harvard Law School Class Day. Two of the videos included press conferences by Acting U.S. Attorney Joon Kim and then Deputy U.S. Attorney Richard Zabel. Prior to the commencement of litigation between the parties, a member of the press office of the U.S. Attorney's Office for New York's southern district informed Progress Queens that there as no discipline for ensuring that recordings were made of former U.S. Attorney Bharara's public appearances. There were times when the U.S. Attorney's Office did not send a crew to livestream or record a public speech, and there were times when the group hosting former U.S. Attorney Bharara did not make arrangements to make such a recording. Nevertheless, it appeared that the U.S. Attorney's Office was aware that they were obligated to make recordings of such speeches, but chose not to, for reasons that included having to add closed captions for the hearing impaired, according to information obtained by Progress Queens. One of the categories of records requested in the FOIA Request filed by Progress Queens included policies and procedures for the preservation of records of speeches by former U.S. Attorney Bharara. Because the records produced by the DOJ are still being reviewed, it is not yet known if the DOJ provided records responsive to the specific request about policies and procedures.
According to the DOJ, 1 723 pages of records were released in full in response to the FOIA Request. Another 385 pages of records were redacted or withheld. Progress Queens has made all of the documents publicly available prior to conducting a full review of the documents for completeness. Following a request made by Progress Queens, the DOJ produced hardcopies of the documents. The hardcopies were provided loosely, without any regard for collating the documents with integrity, and the hardcopies were printed double-sided, making it difficult to know where one document might have ended and another begun. Amongst some of the documents included in the hardcopy production included event vetting questionnaires, in which the U.S. Attorney's Office appeared to perform due diligence on events prior to committing to a public appearance by then U.S. Attorney Bharara. Amongst the event vetting questionnaires produced included an appearance by then U.S. Attorney Bharara at the annual convention of the New York State Bar Association at which he received an award for "Outstanding Prosecutor" from the Criminal Justice Section of the NYSBA. At the annual convention, Progress Queens inquired as to whether there would be any order in which awards would be presented, but organisers said that there was no known order. According to the event vetting questionnaire obtained by Progress Queens in the hardcopy production accompanying the FOIA Response, then U.S. Attorney Bharara was noted to be sixth in a list of individuals expected to be given awards at that function.
The hardcopy production of documents also included heavily redacted e-mail exchanges about the planning of public speaking engagements. According to one such e-mail, dated 6 October 2014, the U.S. Attorney's Office was going to explore whether a Deputy U.S. Marshal could provide security at a public speaking event in connection with the South Asian Bar Association of New Jersey. As part of the same e-mail chain, an individual coördinating then U.S. Attorney Bharara's appearance before that event included a link to a flattering article published by The New York Times about then U.S. Attorney Bharara with a request : "By the way, the NYT ran a profile of Preet on Monday that might be helpful for introducing him at the event."
In the FOIA Lawsuit, the DOJ is represented by Assistant U.S. Attorney Rebecca Tinio, with whom the publisher of Progress Queens has exchanged tense e-mails. As an agency, the DOJ has stated many times that it believes it can comply with FOIA at its discretion. Assistant U.S. Attorney Tinio has either rejected or not answered requests to settle the FOIA Lawsuit with a reform that would bring the DOJ into compliance with FOIA. The Federal prosecutors' office formerly headed by U.S. Attorney Bharara has compiled a partial listing of some of his speeches on its Web site, but it is not known why the records presented on the U.S. Attorney's Office Web page is not complete.
- DOJ's First FOIA Response (incomplete e-mail production) [Google Drive]
- DOJ's Second FOIA Response (CD-ROM) [Google Drive]
- Index of Files of DOJ's Second FOIA Response (CD-ROM) [GitHub]
- DOJ's Third FOIA Response (Thumb Drive) [Google Drive]
- Index of Files of DOJ's Third FOIA Response (Thumb Drive) [GitHub]
- DOJ's Fourth FOIA Response (External Hard Drive) [Google Drive] [Google Drive]
- Index of Files of DOJ's Fourth FOIA Response (External Hard Drive) [GitHub]
- As Bharara questions DC integrity, U.S. Attorney's Office undermines FOIA to withhold records of Bharara's speeches [Progress Queens]
- U.S. Attorney's Office makes bad faith release of photos in first response to FOIA Lawsuit over Bharara's speeches [Progress Queens]
- Lack of transparency in New York Government abetted by Federal failure to comply with open records laws [Progress Queens]
- Ethics complaints were filed against Federal prosecutors over alleged misconduct in FOIA lawsuit [Progress Queens]
- Progress Queens files FOIA lawsuit, seeking records of Preet Bharara's speeches [Progress Queens]