2016-02-12 DOJ 56.1 Statement Reply (Flores V DOJ)

Case 1:15-cv-02627-JG-RLM Document 27-1 Filed 02/12/16 Page 1 of 170 PageID #: 1403
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
LOUIS FLORES,
Civil Action No. 15-CV-2627
Plaintiff,
v.
(Gleeson, J.)
(Mann, M.J.)
UNITED STATES DEPARTMENT OF

JUSTICE,
Defendant.
DEFENDANTS RESPONSE TO
PLAINTIFFS DISPUTE OF AND ANSWER TO
DEFENDANTS LOCAL CIVIL RULE 56.1 STATEMENT
Pursuant to Rule 56.1 of the Local Civil Rules of the United States District Court for the
Southern and Eastern Districts of New York, Defendant United States Department of Justice
(Defendant or DOJ) sets forth this statement of material facts in reply to the correspondingly
numbered paragraphs in Plaintiffs Dispute of and Answer to Defendants Local Civil Rule 56.1
Statement (Plaintiffs Dispute and Answer).
General Response to Plaintiffs Dispute and Answer
1. Plaintiff has failed to offer any facts or admissible evidence, as required by Fed. R.
Civ. P. 56(c) and (e) and Local Civil Rule 56.1 to refute Defendants Statement; thus, Plaintiffs
Dispute and Answer should be rejected and Defendants statements should be deemed
undisputed.
2.
To the extent that Plaintiffs responses concede the substance of Defendants
respective statement of fact, Defendants statements should be deemed undisputed.
3. To the extent that Plaintiffs responsive statements may be offered as affirmative

evidence in support of Plaintiffs case-in-chief, the statements should be rejected because they
are irrelevant to the instant motion and constitute unsupported allegations, speculation and legal
conclusions rather than facts, as required by Fed. R. Civ. P. 56(c) and (e) and Local Civil Rule
56.1.
4. To the extent that Plaintiffs responsive statements are argumentative and unsupported
by evidence these assertions must be rejected. Plaintiff cannot raise an issue of fact merely by
claiming that he disagrees with facts.
5. To the extent that the documents or materials cited by Plaintiff in support of his
responsive statements fail to support the proposition for which Plaintiff has cited such
documents, Plaintiffs responses should be rejected and Defendants statements should be
deemed undisputed.
Response Regarding the Respectively Numbered Paragraphs in

Plaintiffs Dispute and Answer (Including Plaintiffs Additional Statements)
A.
Plaintiffs Requests for Information and FOIA Request
Defendants Undisputed Fact No. 1:

1.
On March 27, 2013, Plaintiff Louis Flores (Plaintiff) sent an email to an
Assistant United States Attorney (AUSA) at the United States Attorneys Office in the District
of Columbia (USAO-DC), with copy to other individuals at USAO-DC and email addresses
outside of USAO-DC. (Declaration of Assistant U.S. Attorney Rukhsanah L. Singh, dated
November 23, 2015 (Singh Decl.), Ex. B; Dkt. No. 15 (Amended Complaint) 4; Dkt. No. 17
(Answer to Amended Complaint) 4).
Plaintiffs Dispute and Answer:
1. Plaintiff does not contest this statement, other than to specify that the Assistant U.S.
Attorney in question is Angela George (George). (Singh Decl., Ex. N at 1).
(Flores Decl., Ex. F). The related e-mail exchange has been filed in the docket of this
case. (Dkt. No. 12, Ex. I of Ex. C).
Defendants Reply:
Defendants statement is undisputed. Plaintiff admitted Defendants statements, and
failed to offer any facts or admissible evidence to refute any portion of Defendants
statements, as required by Fed. R. Civ. P. 56(c) and (e) and Local Rule 56.1. Plaintiffs
responsive statements do not refute the facts in Defendants statement and do not create a
genuine issue as to a material fact.

2.
In the March 27, 2013 email, Plaintiff posed three questions regarding the
prosecution of Daniel Choi. (Singh Decl., Ex. B).

2.
Plaintiff disputes this statement, by pointing out that:

a.
In the March 27, 2013 e-mail (the First E-mail Request), Plaintiff
requested information about:
(i).
Why the DOJ was making the prosecution of activists a priority,
and what was the DOJ trying to achieve by prosecution of activists, including Lt. Choi;
(ii).
Why the DOJ would not refer to Lt. Daniel Choi (Lt. Choi) by
his U.S. military service rank; and
(iii). Asking for the disclosure of the cumulative cost of the
Governments prosecution of Lt. Choi, which, collectively became a framework of
questions that later became the foundation of the FOIA request dated 30 April 2013 (the
First FOIA Request). (Dkt. No. 12, Ex. A to Ex. I of Ex. C).
b.
The DOJ never answered the three requests in the First E-Mail Request.
(Dkt. No. 15 31).
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiff admitted the substance of
Defendants statements and failed to offer any facts or admissible evidence to refute any
portion of Defendants statements, as required by Fed. R. Civ. P. 56(c) and (e) and Local
Rule 56.1.
Plaintiffs responsive statements do not refute the facts in Defendants
statement and do not create a genuine issue as to a material fact.

3.
The USAO-DC is the Office that handled the prosecution of Daniel Choi.
(Declaration of Princina Stone dated September 30, 2015 (Stone Decl.) at 7).
3.
Plaintiff disputes this statement ; the U.S. Attorneys Office in the District of
Columbia was not solely in charge of the prosecution of Lt. Choi, since law enforcement
arrested Lt. Choi and George and/or other prosecutors prosecuted Lt. Choi based on
White House information sent by Brian Bond and other information and legal analysis
provided by other Executive Branch agencies, including, but not limited to, the National
Park Service and the U.S. Department of the Interior. (Flores Decl., Ex. HH (the White
House email), Ex. G at Tab B (the Capt. Guddemis November 22 email), and Ex. G
at Tab A (the Myers memo (email))).
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiff failed to offer any facts
or admissible evidence to refute any portion of Defendants statements, as required by
Fed. R. Civ. P. 56(c) and (e) and Local Rule 56.1. Plaintiffs responsive statements do
not refute the facts in Defendants statement and do not create a genuine issue as to a
material fact.
To the extent that Plaintiffs statements are argumentative, are legal
conclusions or are unsupported by evidence, his assertions must be rejected.

4.
On April 10, 2013, Plaintiff sent a second email to the USAO-DC AUSA
following up on the prior request for information. (Singh Decl., Ex. C).
4.
Plaintiff does not contest this statement, except to add:

a.
The DOJ never answered the April 10, 2013 e-mail (the Second E-mail
Request). (Dkt. No. 15 32).
b.
The related e-mail exchange has been filed in the docket of this case. (Dkt.
No. 12, Ex. I of Ex. C).
Defendants Reply:

5.
On April 16, 2013, Plaintiff sent an email to an ASKDOJ email account, with
copy to others, which included a forwarding of Plaintiffs prior correspondence to the USAO-DC
AUSA. (Singh Decl., Ex. D).
5.
Plaintiff does not contest this statement. The related e-mail exchange has been
filed in the docket of this case. (Dkt. No. 12, Ex. I of Ex. C).
Defendants Reply:
responsive statements do not refute the facts in Defendants statement and do not create
a genuine issue as to a material fact.

6.
In the April 16, 2013 email, Plaintiff stated that he made requests for information
from the Department of Justice and asked that his request be route[d] . . . to the appropriate
department . . . . (Singh Decl., Ex. D).
6.
Plaintiff does not contest this statement.
Defendants Reply:

7.
On April 17, 2013, the Public Information Officer of USAO-DC sent Plaintiff an
email stating, inter alia, that a request under the Freedom of Information Act (FOIA) for
records from a U.S. Attorneys Office should be sent to the Department of Justices Executive
Office for United States Attorneys (EOUSA). (Singh Decl., Ex. E; Dkt. No. 15 4; Dkt. No. 17
4).
7.
Plaintiff contests this statement, noting that the address used by Plaintiff to
address the First FOIA Request was provided to Plaintiff by the DOJ, that William Miller
was the Public Information Officer (Miller), and that Miller wrote to Plaintiff that the
Executive Office for United States Attorneys (the EOUSA) will respond to your
request directly (emphasis added). (Dkt. No. 12, Ex. D to Ex. I of Ex. C).
Defendants Reply:
material fact. The signature block of William Miller in the April 17, 2013 email states
Public Information Officer, U.S. Attorneys Office for the District of Columbia. (See
Singh Decl., Ex. E).

8.
A letter from Plaintiff dated April 30, 2013 and directed to EOUSA/FOIA/PA
Staff included a FOIA request seek[ing] records pertaining to the prosecution of Lt. Daniel
Choi[.] (Singh Decl., Ex. A at p. 1; Dkt. No. 15 4; Dkt. No. 17 4).
Plaintiff contests this statement, since Plaintiff made several requests for information, as
follows :
a. All records and information pertaining to the legal basis of prosecuting
activists, who engage in protests, including, but not limited, to records and
information regarding:
(i)
what kind of activists may be targeted for prosecution, how many
activists have been targeted for prosecution, what are the names of
such activists, and which Department of Justice officials approved of
such prosecution of activists;
(ii)
whether the nature and purpose of prosecution of activists may be
aggressive, selective, or involve overreach, and which Department of
Justice officials approve of such nature and purpose of prosecution of
activists;
(iii) limits, rules, procedures, or other guidelines that must or should be
taken into consideration before, during, and after the prosecution of
activists to minimize the interference with First Amendment rights,
other Constitutional rights, civil liberties, and other civil rights of
activists;
(iv)
consideration of other circumstances, conditions, and restrictions that
form any part of the decision to target activists for prosecution ; and,
if such considerations exist, under what circumstances, under what
conditions, and subject to what restrictions;
(v)
any and all agency, executive, judicial, or congressional reports,
memoranda, records, and information, which provide any description
of the process for the determination as to whether activists can be
targeted for prosecution; and
(vi)
whether agencies other than the Department of Justice may target
activists for prosecution, and, if so, under what circumstances, under
what conditions, and subject to what restrictions; and which agency
officials approve of such prosecution of activists.
b. All records and information created on or after November 12, 2010,
pertaining to the legal basis for the arrest and/or prosecution of Lt. Choi,
including, but not limited to, records and information regarding:
(i)
whether the prosecution of Lt. Choi was part of any Department of
Justices process to target activists; and
10
(ii)
the limits of the Department of Justices prosecution to minimise

[sic] the interference with First Amendment, other Constitutional
rights, civil liberties, and other civil rights of Lt. Choi.
c. All records and information created on or after Nov. 12, 2010, pertaining to
the legal basis for the Department of Justice or U.S. Attorneys Office to fail
to refer to Lt. Choi by his military rank, in accordance with Army Regulation
670-1.
d. The total cost of the prosecution of Lt. Choi, including, but not limited to:
(i)
any and all records and information created on or after Nov. 12,
2010, pertaining to the cost of arresting and/or prosecuting Lt.
Choi, including, but not limited to, records and information
regarding:
(A) any and all agency, executive, judicial, or congressional
reports, memoranda, records, and information, which indicate,
calculate, or analyze the budged [sic] and actual cost of the
prosecution of Lt. Choi;
(B) any and all records of the cost of staff costs, staff benefits,
travel, transcripts, accommodations, meals, non-attorney
investigation costs, research costs, other investigation costs,
and all other costs on the prosecution of Lt. Choi;
(C) any and all records of the costs of fact and expert witnesses in
connection with the prosecution of Lt. Choi; and
(D) any and all records of assistance provided by other law
enforcement agencies in connection with the prosecution of Lt.
Choi; and
(E) any and all records of hours worked, paid or unpaid overtime
hours, and other information about personnel hours worked in
connection with the prosecution of Lt. Choi. (Dkt. No. 15
34). (Dkt. No. 12, Ex. I of Ex. C).
Defendants Reply:
material fact. Plaintiffs Dispute and Answer merely summarizes additional contents of
the April 30, 2013 letter.
11
Plaintiffs Statement No. 8.1:

Defendant has either willfully ignored some of requests in the First FOIA Request,
provided partial responses to some, and willfully withheld records without either an
explanation or a Vaughn Index, despite requests for clarification and a Vaughn Index
made by Plaintiff, for some requests, as set forth below:
Defendants Response to Plaintiffs Statement No. 8.1:
Defendant objects to Plaintiffs Statement No. 8.1 in its entirety. Local Civil Rule
56.1(b) provides only for the opposing party to respond to the moving partys Local Civil
Rule 56.1(a) Statement of undisputed material facts and to include, if necessary,
additional paragraphs containing a separate, short and concise statement of additional
material facts as to which the opposing party contends there exists a genuine issue to be
tried.
Although Defendant disputes Plaintiffs statements which are argumentative, are
legal conclusions and are unsupported by evidence, these disputes do not create a genuine
issue of material fact that would preclude summary judgment dismissing this action.
EOUSA responded to Plaintiffs April 30, 2013 FOIA request on August 17,
2015, following a search for any agency records at the USAO-DC that were responsive to
any or all of the itemized requests in the April 30, 2013 letter seeking the USAO-DCs
records, and is not withholding records responsive to Plaintiffs request. (See Stone Decl.
9; Singh Decl., Ex. I; Kelly Decl. 5-24). EOUSA did not ignore, provide partial
responses, or withhold responsive records.
(See Kelly Decl. 5-24).
Plaintiffs
statement does not cite to any admissible evidence regarding a material fact; thus, this
Court should disregard Plaintiffs statement. Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
To the extent that Plaintiffs statements are argumentative, are legal conclusions or are
unsupported by evidence, his assertions must be rejected.
12
Plaintiffs Statement No. 8.1(a):

a.
The DOJ has not fully answered in this First FOIA Request, as follows:
Defendants Response to Plaintiffs Statement No. 8.1(a):

Defendant disputes Plaintiffs statements which are argumentative, are legal
conclusions and are unsupported by evidence. EOUSA fully responded to Plaintiffs
April 30, 2013 FOIA request on August 17, 2015, and is not withholding records
responsive to Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl.
5-24). Plaintiffs statement does not cite to any admissible evidence regarding a
material fact; thus, this Court should disregard Plaintiffs statement. Fed. R. Civ. P.
56(e)(2); L. Civ. R. 56.1(d)
13
Plaintiffs Statement No. 8.1(a)(i):

(i)
In respect of request I.1.A., the DOJ has not provided an accounting, as

set forth below:
Defendants Response to Plaintiffs Statement No. 8.1(a)(i):

conclusions and are unsupported by evidence. EOUSA fully responded to
Plaintiffs April 30, 2013 FOIA request on August 17, 2015, including requests
made under section I.1.A. of the FOIA request, and is not withholding records
responsive to Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex. I; Kelly
Decl. 8-17). Plaintiffs statement does not cite to any admissible evidence
regarding a material fact; thus, this Court should disregard Plaintiffs statement.
Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d)
14
Plaintiffs Statement No. 8.1(a)(i)(A):

(A) not identified what kind of activists may be targeted for prosecution,
Defendants Response to Plaintiffs Statement No. 8.1(a)(i)(A):
Defendant disputes Plaintiffs statements which are argumentative, are
legal conclusions and are unsupported by evidence. EOUSA fully
responded to Plaintiffs April 30, 2013 FOIA request on August 17, 2015,
including requests made under section I.1.A. of the FOIA request, and is
not withholding records responsive to Plaintiffs request. (See Stone Decl.
9; Singh Decl., Ex. I; Kelly Decl. 8-17).
Specifically, following
consultations with IT specialists and an Assistant U.S. Attorney, it was

determined that: the USAO-DC does not use the term activist and the
term is not defined or used; activist could not be readily tracked in
USAO-DC files; a search of the term activists in a case management
system produced no results; the USAO-DC does not target anyone or
anything for prosecution; and USAO-DC does not maintain records in a
format that uses the terms target and/or targeted. (Kelly Decl. 1118).
Plaintiffs statement does not cite to any admissible evidence
regarding a material fact; thus, this Court should disregard Plaintiffs

statement. Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
15
Plaintiffs Statement No. 8.1(a)(i)(B):

(B) not identified how many activists have been targeted for prosecution,
Defendants Response to Plaintiffs Statement No. 8.1(a)(i)(B):
9; Singh Decl., Ex. I: Kelly Decl. 8-17).


16
Plaintiffs Statement No. 8.1(i)(C):

(C) not identified what are the names of such activists, and
Defendants Response to Plaintiffs Statement No. 8.1(i)(C):

USAO-DC files; and a search of the term activists in a case management
system produced no results.
(Kelly Decl. 11-16, 18).
Plaintiffs
statement does not cite to any admissible evidence regarding a material

fact; thus, this Court should disregard Plaintiffs statement. Fed. R. Civ.
P. 56(e)(2); L. Civ. R. 56.1(d).
17
Plaintiffs Statement No. 8.1(a)(i)(D):

(D) not identified which Department of Justice officials approved of such
prosecution of activists;
Defendants Response to Plaintiffs Statement No. 8.1(a)(i)(D):

system produced no results.
(Kelly Decl. 11-16, 18).
Plaintiffs

P. 56(e)(2); L. Civ. R. 56.1(d).
18
Plaintiffs Statement No. 8.1(a)(ii):

(ii)
In respect of request I.1.B., the DOJ has not provided an accounting or

any information as to:
Defendants Response to Plaintiffs Statement No. 8.1(a)(ii):

made under section I.1.B. of the FOIA request, and is not withholding records
Decl. 8-17). Plaintiffs statement does not cite to any admissible evidence
regarding a material fact; thus, this Court should disregard Plaintiffs statement.
Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
19
Plaintiffs Statement No. 8.1(a)(ii)(A):

(A) whether the nature and purpose of prosecution of activists may be
aggressive, selective, or involve overreach, and
Defendants Response to Plaintiffs Statement No. 8.1(a)(ii)(A):
including requests made under section I.1.B. of the FOIA request, and is


20
Plaintiffs Statement No. 8.1(a)(ii)(B):

(B) which Department of Justice officials approve of such nature and
purpose of prosecution of activists;
Defendants Response to Plaintiffs Statement No. 8.1(a)(ii)(B):
including requests made under section I.1.B. of the FOIA request, and is


21
Plaintiffs Statement No. 8.1(a)(iii):

(iii)
In respect of request I.1.C., the DOJ has claimed it did a search, but the
DOJ has not provided the information about the limits, rules, procedures,
or other guidelines that must or should be taken into consideration before,
during, and after the prosecution of activists to minimise [sic] the
interference with First Amendment rights, other Constitutional rights, civil
liberties, and other civil rights of activists;
Defendants Response to Plaintiffs Statement No. 8.1(a)(iii):

made under section I.1.C. of the FOIA request, and is not withholding records
Decl. 8-18). Specifically, following consultations with IT specialists and an
Assistant U.S. Attorney, it was determined that: the USAO-DC does not use the
term activist and the term is not defined or used; activist could not be readily
tracked in USAO-DC files; and a search of the term activists in a case
management system produced no results. (Kelly Decl. 11-18). Further, the
USAO-DC does not have a manual for prosecuting activists, (Kelly Decl. 18),
and Office of the Assistant Attorney General (OAAG) for the Criminal
Division in Washington, D.C. did not have any written guidelines concerning the
prosecution of activists, (Singh Decl., Ex. L). Plaintiffs statement does not cite
to any admissible evidence regarding a material fact; thus, this Court should
disregard Plaintiffs statement. Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
22
Plaintiffs Statement No. 8.1(a)(iv):

(iv)
In respect of request I.1.D., the DOJ has not provided an accounting or

any information about:
Defendants Response to Plaintiffs Statement No. 8.1(a)(iv):

made under section I.1.D. of the FOIA request, and is not withholding records
Decl. 8-18). Plaintiffs statement constitutes legal arguments and does not cite
to any admissible evidence regarding a material fact; thus, this Court should
23
Plaintiffs Statement No. 8.1(a)(iv)(A):

(A) the consideration of other circumstances, conditions, and restrictions
that form any part of the decision to target activists for prosecution;
and
Defendants Response to Plaintiffs Statement No. 8.1(a)(iv)(A):
including requests made under section I.1.D. of the FOIA request, and is


24
Plaintiffs Statement No. 8.1(a)(iv)(B):

(B) if such considerations exist, under what circumstances, under what
conditions, and subject to what restrictions [could activists be
prosecuted];
Defendants Response to Plaintiffs Statement No. 8.1(a)(iv)(B):
including requests made under section I.1.D. of the FOIA request, and is

system produced no results. (Kelly Decl. 11-16). Plaintiffs statement
does not cite to any admissible evidence regarding a material fact; thus,
this Court should disregard Plaintiffs statement. Fed. R. Civ. P. 56(e)(2);
L. Civ. R. 56.1(d).
25
Plaintiffs Statement No. 8.1(a)(v):

(v)
In respect of request I.1.E., the DOJ has not provided an accounting or

any agency, executive, judicial, or congressional reports, memoranda,
records, and information, which provide any description of the process for
the determination as to whether activists can be targeted for prosecution,
and the DOJs willful decision to not cooperate makes it difficult for
Plaintiff and this Court to know whether the DOJ has provided all of these
records; and
Defendants Response to Plaintiffs Statement No. 8.1(a)(v):

made under section I.1.E. of the FOIA request, and is not withholding records
tracked in USAO-DC files; a search of the term activists in a case management
system produced no results; the USAO-DC does not target anyone or anything
for prosecution; and USAO-DC does not maintain records in a format that uses
the terms target and/or targeted. (Kelly Decl. 11-18). Defendant has
cooperated and provided all responses due. (See, e.g., Stone Decl. 9; Singh
Decl., Exs. I, K, L, N; Dkt. Nos. 14, 17). Plaintiffs statement does not cite to any
admissible evidence regarding a material fact; thus, this Court should disregard
Plaintiffs statement. Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
26
Plaintiffs Statement No. 8.1(a)(vi):

(vi)
In respect of request I.1.F, the DOJ has not identified whether agencies
other than the Department of Justice may target activists for prosecution,
and, if so, under what circumstances, under what conditions, and subject
to what restrictions ; and which agency officials approve of such
prosecution of activists, and the DOJs willful decision to not cooperate
makes it difficult for Plaintiff and this Court to know how much
information the DOJ is deliberately withholding.
Defendants Response to Plaintiffs Statement No. 8.1(a)(vi):

made under section I.1.F. of the FOIA request, and is not withholding records
the terms target and/or targeted. (Kelly Decl. 11-18). The April 30, 2013
FOIA request was directed to EOUSA and sought agency records from the
USAO-DC; FOIA requests to other agencies must be made in accordance with
that agencys published rules and procedures. (Singh Decl., Ex. A); see also 5
U.S.C. 552(a)(3)(A). Defendant has cooperated and provided all responses due.
(See, e.g., Stone Decl. 9; Singh Decl., Exs. I, K, L, N; Dkt. Nos. 14, 17).
27
Plaintiffs statement does not cite to any admissible evidence regarding a material
fact; thus, this Court should disregard Plaintiffs statement.
56(e)(2); L. Civ. R. 56.1(d).
28
Fed. R. Civ. P.
Plaintiffs Statement No. 8.1(b):

b.
In respect of request I.2., the DOJ has not provided all of the records and
information created on or after Nov. 12, 2010, pertaining to the legal basis for the
arrest and/or prosecution of Lt. Choi, including, but not limited to, records and
Defendants Response to Plaintiffs Statement No. 8.1(b):

Defendant disputes Plaintiffs statements which are argumentative, are legal conclusions
and are unsupported by evidence. EOUSA fully responded to Plaintiffs April 30, 2013
FOIA request on August 17, 2015, including requests made under section I.2. of the
FOIA request, and is not withholding records responsive to Plaintiffs request. (See
Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 8-19). Plaintiffs statement constitutes
legal arguments and does not cite to any admissible evidence regarding a material fact;
thus, this Court should disregard Plaintiffs statement. Fed. R. Civ. P. 56(e)(2); L. Civ.
R. 56.1(d).
29
Plaintiffs Statement No. 8.1(b)(i):

(i)
The DOJ has not provided records that identify whether the prosecution of
Lt. Choi was part of any Department of Justices process to target
activists, in accordance with request I.2.A.; and
Defendants Response to Plaintiffs Statement No. 8.1(b)(i):

made under section I.2.A. of the FOIA request, and is not withholding records
the terms target and/or targeted. (Kelly Decl. 11-18). Plaintiffs statement
does not cite to any admissible evidence regarding a material fact; thus, this Court
should disregard Plaintiffs statement.
56.1(d).
30
Fed. R. Civ. P. 56(e)(2); L. Civ. R.
Plaintiffs Statement No. 8.1(b)(ii):

(ii)
The DOJ has claimed it did a search, but the DOJ not [sic] provided
records that identify the limits of the Department of Justices prosecution
to minimise [sic] the interference with First Amendment, other
Constitutional rights, civil liberties, and other civil rights of Lt. Choi, in
accordance with request I.2.B., except that:
Defendants Response to Plaintiffs Statement No. 8.1(b)(ii):

made under section I.2.B. of the FOIA request, and is not withholding records
Decl. 8-19). Specifically, request I.2.B. was too broad and vague to generate
search terms. (Kelly Decl. 19). Plaintiffs statement does not cite to any
31
Plaintiffs Statement No. 8.1(b)(iii)(A):

(iii)
The DOJ has :

(A) created a red herring when it released a partial copy of the pleading
file in the Governments prosecution case against Lt. Choi (the First
FOIA Release or the Red Herring Release) that referenced many
documents but that which were missing from the Red Herring
Response (Flores Decl., Ex. F);
Defendants Response to Plaintiffs Statement No. 8.1(b)(iii)(A):
and is not withholding records responsive to Plaintiffs request. (See
Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 8-24).
EOUSA
appropriately exercised its discretion to release non-responsive, publiclyavailable documents that involved, generally, the Choi prosecution that
were located in the files of USAO-DC. (Stone Decl. 6-8; Kelly Decl.
25-28). Plaintiff has admitted that the production regarding the Choi
prosecution was not responsive to his FOIA request. (See Dkt. No. 12
(Letter from Plaintiff dated Sept. 3, 2015 to the Court) ([T]he documents
produced were non-responsive to the FOIA Request.)).
In addition,
Plaintiffs statement does not cite to any admissible evidence regarding a

material fact; thus, this Court should disregard Plaintiffs statement. Fed.
R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
32
Plaintiffs Statement No. 8.1(b)(iii)(B):

(B) The Red Herring Release contained references to the kinds of
documents that Plaintiff had been seeking, but the DOJ deliberately
withheld such documents that were answerable to the First FOIA
Request (Plaintiffs Index to the First FOIA Response) (Dkt. No. 12,
Ex. B);
Defendants Response to Plaintiffs Statement No. 8.1(b)(iii)(B):
EOUSA
produced were non-responsive to the FOIA Request.)). The production
did not include references to materials that were responsive to Plaintiffs
FOIA request. (See Singh Decl., Ex. K at pp. 2-3). Moreover, Defendant
offered to provide, and did provide, materials from the Choi prosecution
that Plaintiff felt were relevant to his FOIA request. (See Singh Decl., Ex.
K).
In addition, Plaintiffs statement does not cite to any admissible
33
evidence regarding a material fact; thus, this Court should disregard

34
Plaintiffs Statement No. 8.1(b)(iii)(C):

(C) The cover letter from the DOJ, dated 19 August 2015, acknowledged
the existence of Nonpublic records pertaining to a third party that
the DOJ was deliberately withholding (Flores Decl., Ex. F at 1) (the
Exempted Records); and
Defendants Response to Plaintiffs Statement No. 8.1(b)(iii)(C):
EOUSA
In addition,

R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
35
Plaintiffs Statement No. 8.1(d)(iii)(D):

(D) The DOJ declined to produce the Nonpublic Records in accordance to
[sic] the Privacy Act, 5 U.S.C. 552a. (Flores Decl., Ex. F at 1). The
exemption, under the Privacy Act, 5 U.S.C. 552a, is the only time in
the action before this Court that the DOJ has cited an exemption under
FOIA to explain a withholding of records.
Defendants Response to Plaintiffs Statement No. 8.1(b)(iii)(D):
EOUSA
produced were non-responsive to the FOIA Request.)). Plaintiff never
provided a release, death certificate, or public justification for any request
for non-responsive, non-public information regarding a third-party as
required by the Privacy Act.
(See Singh Decl., Ex. I).
In addition,

R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
36
Plaintiffs Statement No. 8.1(b)(iii)(E):

(E) The DOJ, in the cover letter transmitting the Red Herring Response,
did not make a line-item accounting of each item requested in the First
FOIA Request. (Flores Decl., Ex. F at 1-2).
Defendants Response to Plaintiffs Statement No. 8.1(b)(iii)(E):
EOUSA
In addition,
Plaintiffs statement constitutes does not cite to any admissible evidence

37
Plaintiffs Statement No. 8.1(c):

c.
In respect of request I.3., the DOJ has claimed it did a search, but the DOJ has
not provided records and information created on or after Nov. 12, 2010,
pertaining to the legal basis for the Department of Justice or U.S. Attorneys
Office to fail to refer to Lt. Choi by his military rank, in accordance with Army
Regulation 670-1.
Defendants Response to Plaintiffs Statement No. 8.1(c):

Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 8-9, 20).
Specifically, because
Plaintiffs request in section I.3. of the FOIA request was more a question than request
for records, Ms. Kelly could not search for records responsive to this request. (Singh
Decl., Ex. A at p. 4; Kelly Decl. 20). In addition, Plaintiffs statement does not cite to
any admissible evidence regarding a material fact; thus, this Court should disregard
38
Plaintiffs Statement No. 8.1(d):

d.
In respect of request I.4., the DOJ has claimed it did a search, but the DOJ has
not provided records and information about the total cost of the prosecution of Lt.
Choi, including, but not limited to:
Defendants Response to Plaintiffs Statement No. 8.1(d):

Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 8-9, 21-24). In addition, Plaintiffs
39
Plaintiffs Statement No. 8.1(d)(i):

(i)
any and all records and information, in accordance with request I.4.A.,
created on or after Nov. 12, 2010, pertaining to the cost of arresting
and/or prosecuting Lt. Choi, including, but not limited to, records and
Defendants Response to Plaintiffs Statement No. 8.1(d)(i):

conclusions and are unsupported by evidence.
EOUSA fully responded to
made under section I.4. of the FOIA request, and is not withholding records
Decl. 8-9, 21-24). Specifically, following consultations with the USAO-DC
Budget Officer, it was determined that: USAO-DC does not maintain records of
the cost of a particular case by a defendant name or on a defendant-per-defendant
basis; and it is not possible to segregate the accounting documents for single
defendant when there are multiple co-defendants or otherwise ascertain a
defendants share of the overall cost of prosecuting the multi-defendant case.
(See Kelly Decl. 21-24). In addition, Plaintiffs statement does not cite to any
40
Plaintiffs Statement No. 8.1(d)(i)(A):

(A)
any and all agency, executive, judicial, or congressional reports,
memoranda, records, and information, which indicate, calculate, or
analyze the budged [sic] and actual cost of the prosecution of Lt. Choi, in
accordance with request I.4.A.a.;
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(A):
including requests made under section I.4. of the FOIA request, and is not
withholding records responsive to Plaintiffs request. (See Stone Decl.
9; Singh Decl., Ex. I; Kelly Decl. 8-9, 21-24). Specifically, following
consultations with the USAO-DC Budget Officer, it was determined that:
USAO-DC does not maintain records of the cost of a particular case by a
defendant name or on a defendant-per-defendant basis; and it is not
possible to segregate the accounting documents for single defendant when
there are multiple co-defendants or otherwise ascertain a defendants
share of the overall cost of prosecuting the multi-defendant case. (See
Kelly Decl. 21-24). Further, executive, judicial, or congressional
reports, memoranda, records, and information may not be agency records
under the FOIA. See 5 U.S.C. 552(a)(3)(A). In addition, Plaintiffs
P. 56(e)(2); L. Civ. R. 56.1(d).
41
Plaintiffs Statement No. 8.1(d)(i)(B):

(B)
any and all records of the cost of staff costs, staff benefits, travel,
transcripts, accommodations, meals, non-attorney investigation costs,
research costs, other investigation costs, and all other costs on the
prosecution of Lt. Choi, in accordance with request I.4.A.b.;
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(B):
legal conclusions and are unsupported by evidence.
EOUSA fully
Kelly Decl. 21-24). In addition, Plaintiffs statement does not cite to
any admissible evidence regarding a material fact; thus, this Court should
disregard Plaintiffs statement.
56.1(d).
42
Fed. R. Civ. P. 56(e)(2); L. Civ. R.
Plaintiffs Statement No. 8.1(d)(i)(C):

(C)
any and all records of the costs of fact and expert witnesses in
connection with the prosecution of Lt. Choi, in accordance with request
I.4.A.c.;
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(C):
EOUSA fully
56.1(d).
43
Fed. R. Civ. P. 56(e)(2); L. Civ. R.
Plaintiffs Statement No. 8.1(d)(i)(D):

(D)
any and all records of assistance provided by other law
enforcement agencies in connection with the prosecution of Lt. Choi, in
accordance with request I.4.A.d.; and
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(D):
Kelly Decl. 21-24).
Plaintiffs April 30, 2013 FOIA request was
directed to EOUSA and sought agency records from the USAO-DC; FOIA
requests to other agencies must be made in accordance with that agencys
published rules and procedures. (Singh Decl., Ex. A); see also 5 U.S.C.
552(a)(3)(A). In addition, Plaintiffs statement does not cite to any
admissible evidence regarding a material fact; thus, this Court should
44

56.1(d).
45
Fed. R. Civ. P. 56(e)(2); L. Civ. R.
Plaintiffs Statement No. 8.1(d)(i)(E):

(E)
any and all records of hours worked, paid or unpaid overtime
hours, and other information about personnel hours worked in connection
with the prosecution of Lt. Choi, in accordance with request I.4.A.e.,
except that:
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(E):
EOUSA fully
56.1(d).
46
Fed. R. Civ. P. 56(e)(2); L. Civ. R.
Plaintiffs Statement No. 8.1(d)(i)(F):

(F)
The DOJ has informed Plaintiff that the DOJ cannot segregate
costs for the prosecution of Lt. Choi from the prosecution of other
activists. (Kelly Decl., 21-24), and
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(F):
EOUSA fully
Kelly Decl. 21-24). Neither EOUSA nor the DOJ made any reference
to activists in referring to its response to section I.4. of Plaintiffs FOIA
request. (See Kelly Decl. 21-24). In addition, Plaintiffs statement
does not cite to any admissible evidence regarding a material fact; thus,
this Court should disregard Plaintiffs statement. Fed. R. Civ. P. 56(e)(2);
L. Civ. R. 56.1(d).
47
Plaintiffs Statement No. 8.1(d)(i)(G):

(G)
Despite Plaintiffs request that Plaintiff will accept all of the costs
of the prosecution of activists that include the cost of the prosecution of Lt.
Choi, Defendant has not disclosed such costs. (Flores Decl., Ex. I at
1h)[.]
Defendants Response to Plaintiffs Statement No. 8.1(d)(i)(G):
defendant name or on a defendant-per-defendant basis; it is not possible to
segregate the accounting documents for single defendant when there are
multiple co-defendants or otherwise ascertain a defendants share of the
overall cost of prosecuting the multi-defendant case; and any search to
ascertain costs associated with a particular case would need to be done
manually by first determining who were the individuals that worked on the
matter during a selected time frame and culling out requests for transcripts
or expert fees or the like from those individuals that relate to the subject
litigation. (See Kelly Decl. 21-24). Neither EOUSA nor the DOJ made
any reference to activists in referring to the response to section I.4. of
Plaintiffs FOIA request.
48
(See Kelly Decl. 21-24).
In addition,

R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
49
Plaintiffs Statement No. 8.1(e):

e.
The DOJ has not provided an index requested by Plaintiff of the privacyencumbered records withheld by the DOJ. (Dkt. 12, Ex. A, B at 46). (Flores
Decl., Ex. I at 4j(i)-(ii)).
Defendants Response to Plaintiffs Statement No. 8.1(e):

FOIA request on August 17, 2015, and is not withholding records responsive to
Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 8-24). The
FOIA does not require an index of non-responsive documents. When the EOUSA
appropriately exercised its discretion to release non-responsive, publicly-available
documents that involved, generally, the Choi prosecution that were located in the files of
USAO-DC, its August 17, 2015 letter also referenced other non-responsive, non-public
information regarding a third party. (Stone Decl. 6-8; Kelly Decl. 25-28; Singh
Decl., Ex. I). Plaintiff has admitted that the production regarding the Choi prosecution
was not responsive to his FOIA request. (See Dkt. No. 12 (Letter from Plaintiff dated
Sept. 3, 2015 to the Court) ([T]he documents produced were non-responsive to the
FOIA Request.)).
Plaintiff never provided a release, death certificate, or public
justification for any request for non-responsive, non-public information regarding the
third-party. (See Singh Decl., Ex. I). In addition, Plaintiffs statement does not cite to
50

9.
Plaintiffs April 30, 2013 FOIA request specifically stated that it seeks
information and records pertaining to the nature and purpose of the U.S. Attorneys Offices
prosecution of Lt. Choi. (Singh Decl., Ex. A at p. 2).
9.
Plaintiff objects to this statement. Plaintiff made eighteen (18) requests in four
categories of documents and records in the First FOIA Request. The four categories can
be summarized as: (i) All the records and information pertaining to the legal basis of
prosecuting activists, who are engaged in protests (Dkt. No. 15 34a); (ii) All the
records and information created on or after Nov. 12, 2010, pertaining to the legal basis
for the arrest and/or prosecution of Lt. Choi (Dkt. No. 15 34b); (iii) All records and
information created on or after Nov. 12, 2010, pertaining to the legal basis for the
Department of Justice or U.S. Attorneys Office to fail to refer to Lt. Choi by his military
rank (Dkt. No. 15 34c); and (iv) The total cost of the prosecution of Lt. Choi (Dkt.
No. 15 34d). (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1 Answer 8a(i)-(vi(, 8b(i)-(ii), 8c,
and 8d(i)(A)-(E).
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiffs objections do not
controvert Defendants statement, and Plaintiff has failed to offer any facts or admissible
evidence to refute Defendants statement or to show the existence of a genuine dispute as
to a material fact as required by Fed. R. Civ. P. 56(c) and (e) and Local Rule 56.1.
Accordingly, Plaintiffs response should be deemed an admission. See Fed. R. Civ. P.
56(c); L. Civ. R. 56.1.
51

10.
In the April 30, 2013 letter, Plaintiff requested four categories of records and
information. (Singh Decl., Ex. A at pp. 3-4).

a. Plaintiff requested [a]ll records and information pertaining to the legal basis of
prosecuting activists, who engage in protests and listed six sub-categories of
records or information relating to the prosecution of activists. (Singh Decl., Ex.
A at p. 3).
b. Plaintiff requested [a]ll records and information created on or after Nov. 12,
2010, pertaining to the legal basis for the arrest and/or prosecution of Lt. Choi
and listed two sub-categories of records or information relating to the prosecution
of Daniel Choi. (Singh Decl., Ex. A at p. 4).
c. Plaintiff requested [a]ll records and information created on or after Nov. 12,
2010, pertaining to the legal basis for the Department of Justice of U.S.
Attorneys Office to fail to refer to Lt. Choi by his military rank, in accordance
with Army Regulation 670-1. (Singh Decl., Ex. A at p. 4).
d. Plaintiff requested [t]he total cost of the prosecution of Lt. Choi and listed one
sub-category of records or information, with five sub-sub-categories of records or
information, relating to the costs of arresting and prosecuting Daniel Choi. (Singh
Decl., Ex. A at p. 4).
10.
Plaintiff contests this statement, because Defendants statement at 10
contradicts Defendants statement at 9.
a.
Plaintiff contests this statement, because the First FOIA Requested [sic]
included six sub-categories, and these categories are submitted in the record of
the proceedings before this Court. (Dkt. No. 12, Ex. I of Ex. C). (PL 56.1 Answer
8a(i)-(vi)).
52
b.
included two sub-categories, and these categories are submitted in the record of
8b(i)-(ii)).
c.
Plaintiff does not contest this statement, except to note that Plaintiffs
request is submitted in the record of the proceedings before this Court. (Dkt. No.
12, Ex. I of Ex. C). (PL 56.1 Answer 8c).
d.
included five sub-categories, and these categories are submitted in the record of
8d(i)(A)-(E)).
Defendants Reply:
Defendants statements should be deemed undisputed. Defendants Undisputed
Fact No. 9 and Defendants Undisputed Fact No. 10 are not contradictory.
Plaintiffs objections do not controvert Defendants statement, and Plaintiff has
failed to offer any facts or admissible evidence to refute Defendants statement or
to show the existence of a genuine dispute as to a material fact as required by Fed.
R. Civ. P. 56(c) and (e) and Local Rule 56.1. Accordingly, Plaintiffs response
should be deemed an admission. See Fed. R. Civ. P. 56(c); L. Civ. R. 56.1.
53

11.
Plaintiffs April 30, 2013 letter included requests for expedited processing and a
waiver or limitation of fees. (Singh Decl., Ex. A at pp. 5-8).

11.
Plaintiff does not contest this statement, except to add:

a.
Plaintiff further notes that Plaintiff was told on 5 June 2013 by DOJ
paralegal Sanjay Sola (Sola) that Sonya Whitaker (Whitaker) would
determine whether Plaintiffs request for expedited processing would be
approved. Plaintiff never received any response from Whitaker about his request
for expedited processing. (Dkt. 15 44-45).
b.
Plaintiff further notes that despite Solas promises to Plaintiff, Plaintiff
never received any determination about his fee waiver request being denied by the
DOJ. (Dkt. 15 46-47).
Defendants Reply:
Defendants statements should be deemed undisputed. EOUSA did not assess any fees in
connection with Plaintiffs FOIA response.
(See Singh Decl., Ex. I).
Plaintiffs
additions do not controvert Defendants statement, and Plaintiff has failed to offer any
facts or admissible evidence to refute Defendants statement or to show the existence of a
genuine dispute as to a material fact as required by Fed. R. Civ. P. 56(c) and (e) and
Local Rule 56.1. Accordingly, Plaintiffs response should be deemed an admission. See
Fed. R. Civ. P. 56(c); L. Civ. R. 56.1.
54

12.
Plaintiff also emailed a copy of the FOIA request to the Public Information
Officer of USAO-DC, with copy to other individuals and email addresses. (Singh Decl., Ex. F;
Dkt. No. 15 4; Dkt. No. 17 4).
12.
Plaintiff notes further to Defendants statement that amongst the individuals, who
received the First FOIA Request, was George. (Flores Decl., Ex. JJ). (Dkt. 9 29).
This fact was mentioned by Plaintiff at the Initial Conference.
a.
Plaintiff notes that Defendant changed its representation to the Court that
George received the First FOIA Request when it filed its Amended Answer. (Dkt.
17 29).
b.
Plaintiff notes that Plaintiffs change in its representation before this
Court contravenes information that Defendant gave to Plaintiff during a
Telephone Conference that took place on 16 October 2015, namely, that George
had a copy of the First FOIA Request all along.
Defendants Reply:
Defendants statements should be deemed undisputed. Defendant denied the allegations
of paragraph 29 of Plaintiffs Amended Complaint (which related to an email dated
March 27, 2013 and pre-dated the April 30, 2013 FOIA request), but admitted that, on
March 27, 2013, Plaintiff sent an email to Angela George, asking for certain information
regarding the prosecution of Daniel Choi. (Dkt. No. 17 at 29). Paragraph 29 of
Defendants Answer to Plaintiffs Amended Complaint is not the same as in the Answer
to the Complaint because the allegations in paragraph 29 were not the same. (See Dkt.
No. 16 at 29 (Plaintiffs Amended Complaint in track changes format) (changing the
date of referenced email from April 30, 2013 to March 27, 2013)). Plaintiffs responsive
statement asserts an immaterial fact and is not supported by the documents cited by
Plaintiff. Accordingly, Plaintiffs response should be rejected. See Fed. R. Civ. P. 56(c)
and (e); L. Civ. R. 56.1.
55

13.
A log at EOUSA indicated that it received a FOIA request from Plaintiff. (Stone
Decl. 5).
13.
Plaintiff and this Court do not have any information about the log at EOUSA,
because the DOJ has not produced any records about the log or about the original
request (Request No. 13-1506) or the appeal (Appeal No. AP-2014-00890). Since
records about the log are not in evidence, facts about the log are not available to the
Court and to Plaintiff. Plaintiff can only attest to being provided by Sola the request
number: 13-1506 that Sola informed Plaintiff the First FOIA Request had been assigned.
(Dkt. 15 44).
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiffs response is
argumentative and contains assertions of immaterial facts. An individual with knowledge
at EOUSA has submitted a declaration stating that a log at EOUSA indicated that the
Office received a FOIA request from Plaintiff but that a search did not locate Plaintiffs
FOIA request. (Stone Decl. 5). Furthermore, the Court denied Plaintiffs request for
discovery in this matter. (Dkt. No. 14). Plaintiffs response should be rejected . See Fed.
R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
56

14.
A search of EOUSAs FOIA files did not locate a copy of Plaintiffs April 30,
2013 FOIA request. (Stone Decl. 5).

14.
Plaintiff disputes this statement, because the DOJ has not accounted for how any
of the DOJs activities described by Plaintiff in the Complaint are consistent with the
DOJs inability to locate a copy of the First FOIA Request. (Dkt. 1 36-61).
a.
All that is known is when the DOJ first filed its Answer in the proceedings
before this Court, the DOJ admitted that, Defendant has not yet released any
records that are responsive to Plaintiffs FOIA request at issue in this action and
has not yet provided an explanation to Plaintiff. (Dkt. 9 27).
b.
In its Answer filed with the Court, Defendant never invoked an Exemption
under FOIA as a reason why it never provided an explanation to Plaintiff for
why it had not yet released any records that are responsive to Plaintiffs FOIA
request. (Dkt. 9 27).
c.
In its Amended Answer filed with the Court, Defendant was forced to
change its excuse that EOUSA could not find the request file to EOUSA did not
have a copy of the First FOIA Request. (Dkt. No. 17 52).
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiffs response is
argumentative, does not refute Defendants statement, and is unsupported by admissible
evidence. Plaintiffs citation and reliance on the original Complaint is improper because
Plaintiff filed an Amended Complaint that supersedes the originally filed Complaint.
Defendant further notes that paragraph 52 of Defendants Answer to Plaintiffs Amended
Complaint does not support the proposition for which Plaintiff asserts it in his paragraph
14.c. Paragraph 52 of the Answer to Plaintiffs Amended Complaint relates to Plaintiffs
allegations regarding May 20, 2014 correspondence concerning Plaintiffs FOIA request;
Defendant averred that the referenced correspondence stated that the EOUSA could not
locate Plaintiffs FOIA request. (See Dkt. No. 17 at 52; Singh Decl., Ex. 10 (May 20,
2014 letter)). Defendants Answer to the original Complaint also averred that Plaintiffs
57
FOIA request could not be located; therefore, Defendant lacked sufficient information to
respond to Plaintiffs allegations regarding his FOIA request. (See Dkt. No. 9 at 34-38
(stating Defendant has been unable to find a copy of Plaintiffs FOIA request in its
files.)).
Plaintiff received a copy of the May 20, 2014 letter and its attached
Administrative Appeal Remand Memorandum and, thus, was aware the EOUSA could
not locate the FOIA request before Defendant filed any response to the original
Complaint, as reflected in his website posting that was published on May 16, 2016. See
http://www.scribd.com/doc/265550142/2014-05-20-USDOJ-FOIA-Biller-Lt-Daniel-Choi
(posting May 20, 2014 letter with attachment). Accordingly, Plaintiffs response should
be rejected. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
58

15.
On December 6, 2013, the law firm of Willkie Farr & Gallagher LLP (Willkie
Farr) sent a letter to the Office of Information Policy (OIP) regarding Plaintiffs April 30,
2013 FOIA request. (Singh Decl., Ex. G).
15.
Defendants Reply:
This fact is not in dispute and should be deemed admitted in its entirety. L. Civ. R.
56.1(c).
59

16.
The December 6, 2013 letter states that the FOIA request sought access to
various categories of records pertaining to the prosecution of Lt. Daniel Choi. (Singh Decl.,
Ex. G at p. 1).
16.
Plaintiff contests this statement, as the DOJ is implying that the shorthand
description of Willkie Farr & Gallagher LLP (Plaintiffs Counsel) in the 30 April 2013
letter to the Office of Information Policy (OIP) (the FOIA Appeal) for the nine-page
First FOIA Request should somehow limit or restrict the 18 requests in four categories of
documents and records in the First FOIA Request. (Dkt. 15 34). (Dkt. No. 12, Ex. I of
Ex. C). (PL 56.1 Answer 8a(i)-(vi), 8b(i)-(ii), 8c, and 8d(i)(A)-(E)[)]. (Flores Decl.,
Ex. A).
a.
Plaintiff notes that in Plaintiffs Counsels FOIA Appeal indicated [sic]
that a copy of the First FOIA Request was enclosed: (the Request)
(Enclosed). (Flores Decl., Ex. A at 2). Footnote 1: Although, in Plaintiffs copy
of the e-mail, it does not appear that the First FOIA Request was attached,
Plaintiff notes that one of the lawyers at Plaintiffs Counsel was never asked to
provide a copy of the First FOIA Request. (Flores Decl., Ex. NN).
b.
Plaintiff further notes that Plaintiff approached the office of his elected
Congressional representative, U.S. Representative Joseph Crowley, who wrote a
letter dated 10 February 2014 on Plaintiffs behalf (the Congressional
Request), addressed to EOUSA, asking EOUSA to process the First FOIA
Request. (Dkt. No. 12 Ex. I to Ex. D). (Flores Decl., Ex. B).
c.
Plaintiff notes that the Government never answered the Congressional
Request. (Dkt. No. 15 49).
d.
Plaintiff submits Plaintiffs Counsels 19 March 2014 e-mail report-back
to Plaintiff in which Plaintiffs Counsel wrote that the DOJ was transitioning
their system from a paper format to an electronic format, which has been causing
some delay in processing, but that your request is being processed, further
noting that the First FOIA Request should be processed in 2-3 weeks, before
concluding that, according to Plaintiffs Counsel, this meant that someone may
actually be looking at the First FOIA Request. (Flores Decl., Ex. C).
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiffs responsive statement
does not controvert Defendants Undisputed Fact.
Accordingly, Plaintiffs response
should be deemed an admission. See Fed. R. Civ. P. 56(c); L. Civ. R. 56.1.
60

17.
On May 20, 2014, OIP responded to Willkie Farr stating that it remanded the
request for information to EOUSA because EOUSA had not located Plaintiffs FOIA request.
(Singh Decl., Ex. H).
17.
Plaintiff contests this statement, because the communication that the OIP sent to
Plaintiffs Counsel did not state that the First FOIA Request was lost. The letter, dated
20 May 2014 from the OIP to Plaintiffs Counsel (the OIP Response) noted the
remand of the First FOIA Request to EOUSA. (Flores Decl., Ex. D at 1).
a.
Attached to the OIP Response was an internal DOJ memorandum,
undated, to Susan Gerson, an assistant director at EOUSA, from Melanie Ann
Pustay, a director of the DOJ (Pustay), and Sean R. ONeill, the chief of
Administrative Appeals Staff (ONeill) (the DOJ Remand Memo). It was in
the DOJ Remand Memo, and not in the OIP Response, where Pustay and ONeill
wrote that EOUSA failed to locate the request file. Plaintiff notes that the DOJ
Remand Memo does not say that EOUSA could not find the First FOIA Request.
The exact wording is : EOUSAs failure to locate the request file. (Flores
Decl., Ex. D at 2).
b.
The DOJ Remand Memo instructed EOUSA to please reopen this request
and conduct a search for responsive records, and send any releasable records
directly to the requester, subject to any applicable fees, adding that the OIP
attorney reviewing the FOIA Appeal was Whitaker, the same person Sola
informed Plaintiff would determine whether Plaintiffs request for expedited
processing would be approved. (Flores Decl., Ex. D at 2). (Dkt. 15 44-45).
c.
Plaintiff further notes that Plaintiffs Counsel informed Plaintiff via e-mail
dated 09 June 2014 (the Good News e-mail) that the OIP had sent this back
down to EOUSA to conduct a search for, and produce, responsive records.
(Flores Decl., Ex. E).
d.
In the OIP Response, Plaintiffs Counsel was advised: If your client is
dissatisfied with my action on your appeal, the Freedom of Information Act
permits him to file a lawsuit in federal district court in accordance with 5 U.S.C.
552(a)[(]4)(B). (Flores Decl., Ex. D at 1).
e.
At no time prior to Plaintiffs Counsels representation of Plaintiff did the
DOJ ever communicate to Plaintiff that the DOJ or the OIP had no copy of the
First FOIA Request or a request file for the First FOIA Request, and at no time
during Plaintiffs Counsels representation of Plaintiff did Plaintiffs Counsel
inform Plaintiff that the DOJ or the OIP had no copy of the First FOIA Request
or a request file for the First FOIA Request. (Flores Decl., Ex. NN).
f.
The OIP never released records in response to the FOIA Appeal. (Dkt.
No. 1 53).
61
g.
Plaintiffs Counsel never explained to Plaintiff the OIPs failure to ever
release records in response to the First FOIA Request.
h.
The Court has never asked the DOJ to account for how the First FOIA
Request or the request file for the First FOIA Request was lost.
Defendants Reply:
Defendants statements should be deemed undisputed. Plaintiffs statement that the letter
did not state that his FOIA request could not be located is irrelevant. None of Plaintiffs
statement identifies a material fact as to which there is a genuine dispute that would
preclude summary judgment being entered for Defendant. Accordingly, Plaintiffs
response should be rejected. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
62
B.
Plaintiff Initiates This Lawsuit

18.
On May 5, 2015, Plaintiff filed the instant action against DOJ alleging he did not
receive any response to his April 30, 2013 FOIA request. (Dkt. No. 1).
18.
Defendants Reply:
56.1(c).
63

19.
On July 1, 2015, DOJ filed its Answer. (Dkt. No. 9).

19.
Defendants Reply:
56.1(c).
64
C.
The Searches for Information Responsive to Plaintiffs FOIA Request

20.
Following service of the Complaint, EOUSA obtained a copy of Plaintiffs FOIA
request, assigned it Request No. 2015-02422, and instructed the USAO-DC to conduct searches
for records responsive to the request. (Stone Decl. 6).
20.
Plaintiff contests this statement, because the DOJ does not indicate how the DOJ
obtained a copy of the First FOIA Request, and the DOJ does not account for all the time
that the DOJ failed to release any records that are responsive to Plaintiffs FOIA
request at issue in this action and had not yet provided an explanation to Plaintiff, as
of the filing of the DOJs Answer in this action. (Dkt. 9 27).
Defendants Reply:
Defendants statement should be deemed undisputed. Plaintiffs responsive statement is
argumentative and fails to offer any facts or admissible evidence to refute Defendants
statement or demonstrate the existence of a material fact as to which there is a genuine
dispute. Accordingly, Plaintiffs response should be rejected. See Fed. R. Civ. P. 56(c)
and (e); L. Civ. R. 56.1.
65

21.
Karin Kelly, a paralegal specialist and FOIA Coordinator in the Civil Division of
USAO-DC, conducted the searches for any records responsive to Plaintiffs request.
(Declaration of Karin Kelly (Kelly Decl.) 1, 5-9).
21.
Plaintiff has no information to verify this statement, except that Plaintiff has
objected to each of the form of the search conducted, limitations imposed by the DOJ in
the conduct of the searches, and the qualification of Karin Kelly, who conducted the
searches, in Plaintiffs letter to Defense Counsel, dated 26 October 2015 (the Plaintiffs
Due Diligence Letter). (Flores Decl., Ex. I at 1).
Defendants Reply:
argumentative, constitutes legal arguments, and fails to offer any facts or admissible
evidence to refute Defendants statement or demonstrate the existence of a material fact
as to which there is a genuine dispute. Accordingly, Plaintiffs response should be
rejected. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
66

22.
Ms. Kelly made inquiries of all individuals who have access to systems of records
located within the USAO-DC that were likely to contain records responsive to Plaintiffs request
and, to the extent feasible, those systems have been searched. (Kelly Decl. 8).
22.
Plaintiff has no information to verify this statement, except that Plaintiff has
objected to the Declaration of Karin Kelly on the basis that during a Telephone
Conference between Plaintiff and Defense Counsel on 16 October 2015 [(]the Due
Diligence Telephone Conference), Defense Counsel had promised Plaintiff that the
search would be conducted for guidelines, protocols, procedures, but the Declaration
of Karin Kelly was silent about these descriptions of records. Amongst other complaints
made by Plaintiff was that the Declaration of Karin Kelly mentioned the First FOIA
Request items I.1.C., I.2.B., item I.3, and item I.4. However, none of the other items were
individually addressed. Plaintiff requested a full clarification on an item-by-item basis of
the search results. (Flores Decl., Ex. I at 1b, 1i).
Defendants Reply:
Defendants statement should be deemed undisputed. As set forth in the Kelly
Declaration, the USAO-DC searched for any rules, procedures or guidelines being
sought through the FOIA request[,] as well as any manual relating to the prosecution
of activists. (Kelly Decl. 18). Plaintiffs FOIA request does not include protocols
in its itemized request for records. (See Singh Decl., Ex. A at pp. 3-4). In addition,
Defendants counsel made no promises to Plaintiff during the October 16, 2015 telephone
conference, which was scheduled at Plaintiffs request and conducted at the Courts
direction for the parties to confer further. (See Dkt. No. 14). Plaintiffs responsive
statement is argumentative, constitutes legal argument, and fails to offer any facts or
admissible evidence to refute Defendants statement. Accordingly, Plaintiffs response
should be rejected. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
67

23.
Based upon her inquiries, which are described in detail in paragraphs 26 to 57,
below, Ms. Kelly was unable to locate any records responsive to Plaintiffs FOIA request.
(Kelly Decl. 8).
23.
Plaintiff contests this statement on the basis that the search was defective,
incomplete, and limited, as noted in Plaintiffs Due Diligence Letter, where Plaintiff
wrote that the search strings deliberately over-looked wording in the First FOIA Request,
particularly to references to First Amendment, other Constitutional rights, civil libertied
[sic], and other civil rights of activists. (Flores Decl., Ex. I at 1g). Amongst the
documents included in the Second FOIA Response were copies of sections from the
United States Attorneys Manual applicable to demonstrations. (Flores Decl., Ex. G
at Tab D). See U.S. Dept of Justice, United States Attorneys Manual 9-65.880, .881,
.882. These records indicated that the DOJ can prosecute activists. The DOJ also
produced other records from the United States Attorneys Manual. (Flores Decl., Ex. G
at Tabs E and G). That the DOJ later produced responsive records using alternative
common sense search strings shows that the DOJs search for records that produced the
Red Herring Response was defective, incomplete, and unlawful.
Defendants Reply:
evidence to refute Defendants statement. Accordingly, Plaintiffs response should be
68

24.
Ms. Kelly is not aware of any other locations within USAO-DC where any other
records that might be responsive to Plaintiffs requests are likely to be located. (Kelly Decl. 9).
24.
Plaintiff contests this statement on the basis that Plaintiff has questioned the
employment status of Karin Kelly. (Flores Decl., Ex. I at 1a). The other DOJ
employee providing a Declaration in this matter has only been employed by the DOJ
since April 2015, and Plaintiff has raised objections about why temp, junior, or new staff
were called to provide Declarations in this matter. (Flores Decl., Ex. I at 2a-2c).
Defendants Reply:
argumentative, constitutes legal arguments, and does not cite to any admissible evidence
regarding a material fact; thus, this Court should disregard Plaintiffs statement. Fed. R.
Civ. P. 56(e)(2); L. Civ. R. 56.1(d).
69

25.
Ms. Kelly is not aware of any other method or means by which a further search
could be conducted other than as identified in her Declaration. (Kelly Decl. 9).
25.
Plaintiff has no information about this statement other than to point out that
perhaps Ms. Kelly is seemingly admitting occupational ignorance.
Defendants Reply:
Defendants statement should be deemed undisputed. Plaintiffs responsive statement
constitutes speculation and does not cite to any admissible evidence regarding a material
fact; thus, this Court should disregard Plaintiffs statement. Fed. R. Civ. P. 56(e)(2); L.
Civ. R. 56.1(d).
70
1. Search for Records Responsive to Items 1 and 2 of Plaintiffs FOIA Request

26.
To determine if USAO-DC maintained any records responsive to items 1 and 2 in
Plaintiffs FOIA request, Ms. Kelly first contacted a USAO-DC IT Specialist in the Applications
and Information (AI) group. (Kelly Decl. 10).
26.
Plaintiff objects to this statement, since, in the Declaration of Karin Kelly, only
items I.1.C. and I.2.B. are individually listed for items 1 and 2 of the First FOIA Request.
There is no accounting for any other items. (Kelly Decl., 10-19). (Dkt. 15 34). (Dkt.
No. 12, Ex. I of C). (PL 56.1 Answer 8a(i)-(vi), 8b(i)-(ii)).
Defendants Reply:
Defendants statement should be deemed undisputed. Plaintiffs response is
argumentative and does not cite to any admissible evidence to refute Defendants
statement. The USAO-DC conducted a search for records responsive to all subsections
of items 1 and 2 in Plaintiffs FOIA request, as set forth in the Kelly Declaration. (See
Kelly Decl. 8-19).
71

27.
The IT Specialist has access to the Replicated Criminal Information System
(RCIS) database and is able to conduct searches and generate reports of information requested
on that database. (Kelly Decl. 10).
27.
Plaintiff has no information about this, except that Plaintiff has objected to the
form of the search. (Flores Decl., Ex. I at 1).
Defendants Reply:
Defendants statement should be deemed undisputed. Plaintiffs statement offers no
admissible evidence to controvert Defendants Undisputed Fact. Accordingly, Plaintiffs
response should be deemed an admission. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R.
56.1.
72

28.
RCIS is an electronic tracking database system designed to provide users with
information related to, among other things, court cases, arrests, and witness data from cases
originating in the Superior Court of the District of Columbia. (Kelly Decl. 10).
28.
Defendants Reply:
Defendants statement should be deemed undisputed. Plaintiffs statement is
argumentative, constitutes legal arguments, and does not offer any admissible evidence to
controvert Defendants Undisputed Fact. Accordingly, Plaintiffs response should be
deemed an admission. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
73

29.
Ms. Kelly informed the RCIS IT Specialist that USAO-DC received a FOIA
request seeking information concerning the number of activists that had been targeted for
prosecution. (Kelly Decl. 11).
29.
Plaintiff objects to this statement, since Plaintiff has objected to the search string
used by Karin Kelly. Plaintiff has further objected to the DOJ searching for terms, like
targeted (because it was descriptive of the effect of the DOJs conduct and is a loaded
word, given that the DOJ would not be likely to make such voluntary classification in its
internal records that would reflect on its own misconduct), but not for any of the laws
that would govern the prosecution of activists, such as First Amendment, other
Constitutional rights, civil liberties, or other civil rights. Furthermore, the DOJ located
guidelines from the United States Attorneys Manual applicable to demonstrations.
(Flores Decl., Ex. G at Tab D). See U.S. Dept of Justice, United States Attorneys
Manual 9-65.880, .881, .882. The DOJ also produced other records from the United
States Attorneys Manual. (Flores Decl., Ex. G at Tabs E and G). Yet, reasonable and
applicable search terms, like demonstrations, were deliberately omitted when the DOJ
conducted is [sic] search of records that later begat the Red Herring Response, because
the search terms were limited to activists and targeted. (Kelly Decl. 11, 17).
Moreover, Plaintiff objected that the search was limited to certain, loaded words ; only
certain items in the First FOIA Request were specifically identified ; in all of the
Declaration of Karin Delly [sic], the DOJ failed to address a search for each line item in
the First FOIA Request; and Plaintiff objected to attempts by the DOJ to deliberately
create obfuscation. (Flores Decl., Ex. I at 1g, 1i).
Defendants Reply:
argumentative, constitutes legal arguments, and does not offer admissible evidence to
deemed an admission. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1. Items 1 and 2 of
Plaintiffs FOIA request identify eight categories of records that relate to activists, (see
Singh Decl., Ex. A at pp. 3-4 (items 1., 1.A., 1.B., 1.C., 1.D., 1.E., 1.F., and 2.A.)), and
six categories of records that relate to target[ing] or selective prosecution, (see Singh
74
Decl., Ex. A at pp. 3-4 (items 1.A., 1.B., 1.D., 1.E., 1.F., and 2.A.)). The USAO-DCs
search for responsive records, and the Kelly Declaration, specifically addressed
Plaintiffs request for information related to the limits of DOJs prosecution to
minimi[z]e the interference with First Amendment, other Constitutional rights, civil
liberties, and other civil rights of Lt. Choi. (See Kelly Decl. 19). The materials that
Defendant voluntarily produced to Plaintiff on October 13, 2015 were not responsive to
Plaintiffs FOIA request.
75

30.
In an email, Ms. Kelly asked the RCIS IT Specialist whether USAO-DC, through
RCIS, could track that type of information sought by the FOIA request, pointed out that the
requester did not specify a time period in which to frame the search, and quoted the relevant
portion of the request in the email to the RCIS IT Specialist. (Kelly Decl. 11).
30.
Plaintiff objects to this statement. The DOJ is citing an e-mail that has not been
introduced into evidence, and Plaintiff notes that Karin Kelly quoted the relevant
portion of the First FOIA Request, but there is no documentation what that portion is or
was, triggering an objection by Plaintiff. (Flores Decl., Ex. I at 1e).
a.
Plaintiff further notes that the DOJ is referring to an incorrect Reference
Number for the First FOIA Request. The Karin Kelly Declaration refers to FOIA
Request No. 2015-02422, but the OIP Response referred to FOIA Request No.
2013-1506 and Appeal No. AP-2014-00890.
Defendants Reply:
Defendants statement should be deemed undisputed. Plaintiffs objection is
argumentative and does not cite to any admissible evidence regarding a material fact;
R. 56.1(d).
76

31.
The RCIS IT Specialist informed Ms. Kelly that USAO-DC does not use the term
activist to categorize an individual, and the term targeted is not defined and, therefore, a
search could not be performed on RCIS. (Kelly Decl. 12).
31.
Plaintiff objects to this statement, repeats his objection to the form of the search,
and repeats his objection to the reduction of the nine-pages of the First FOIA Request to
the two words, one of which, activist, is used without search strings for synonyms or
related laws that would govern the prosecution of activists, such as demonstrations or
First Amendment, other Constitutional rights, civil liberties, or other civil rights,
respectively ; and the other, targeted, which was descriptive of the effect of the DOJs
conduct and is a loaded word, given that the DOJ would not be likely to make such
voluntary classification in its internal records that would reflect its own misconduct.
(Flores Decl., Ex. I at 1g).
Defendants Reply:
argumentative, constitutes legal arguments, and does not cite to any admissible evidence
regarding a material fact; thus, this Court should disregard Plaintiffs statement. Fed. R.
Civ. P. 56(e)(2); L. Civ. R. 56.1(d)..
77

32.
Ms. Kelly then contacted another IT Specialist in the AI group. (Kelly Decl.
13).
32.
Defendants Reply:
Defendants statement should be deemed undisputed.
Plaintiffs response statement
offers no admissible evidence that controverts Defendants Undisputed Fact.

56(c) and (e); L. Civ. R. 56.1.
78

33.
Ms. Kelly explained to the AI IT Specialist the type of information Plaintiff
sought and asked if a search of the Legal Information Network System (LIONS) could be
performed. (Kelly Decl. 13).
33.
Plaintiff has no information about this, except that Plaintiff has objected over and
over again to the way that the DOJ has conducted the search. In this statement, Karin
Kelly explained the type of information being sought instead of just providing the
exact wording in the 18 requests in four categories of documents and records in the First
FOIA Request. (Flores Decl., Ex. I at 1). The DOJ rigged the search so as to conduct
no search at all.
Defendants Reply:
79

34.
LIONS is a case management system used by the Criminal, Appellate and Civil
Divisions of USAO-DC to track all activities taking place in district court matters, cases, and
appeals. (Kelly Decl. 13).
34.
Plaintiff has no information about this.
Defendants Reply:
Plaintiffs response offers no
admissible evidence to refute Defendants statement. This fact is not in dispute and
should be deemed admitted in its entirety. L. Civ. R. 56.1(c).
80

35.
The AI IT Specialist explained that activist was not a term that could be readily
tracked in LIONS and pointed out that the only way the term activist could be tracked in the
database is if it had been manually entered into the comment section of an entry for a particular
matter, case, or appeal. (Kelly Decl. 14).
35.
Defendants Reply:
81

36.
Nevertheless, the AI IT Specialist conduct a search using the term activists in
LIONS, which produced no results. (Kelly Decl. 15).

36.
Plaintiff has no information about this, except to again assert that the DOJ has
been deliberately using obfuscation in order to prevent the release of records fully
responsive to the FOIA Request. (Flores Decl., Ex. I at 1g). Plaintiff provided copious
examples of activists being prosecuted for their activist in the First FOIA Request. Yet,
the DOJ deliberately chose not search the records of those cases for applicable laws or
guidelines, revealing, again the DOJs effort to basically conduct no search at all.
Defendants Reply:
argumentative and does not cite to any admissible evidence regarding a material fact;
R. 56.1(d).
82

37.
Ms. Kelly next contacted the AUSA who was assigned to the Daniel Choi case.
(Kelly Decl. 16).

37.
Defendants Reply:
admissible evidence that would refute Defendants statement. This fact is not in dispute
and should be deemed admitted in its entirety. L. Civ. R. 56.1(c).
83

38.
The AUSA pointed out that the term activist is not used by USAO-DC and,
because the term is not used or defined, it could not be used to search for records responsive to
any part of the FOIA request pertaining to activists. (Kelly Decl. 16).
38.
Plaintiff has no information about this, except that the Assistant U.S. Attorney in
question is George and that, given that George was the prosecutor, who tried Lt. Choi,
then she should have been able to provided [sic] guidance to Karin Kelly about what
words would have produced search results, for example, the use of the word
demonstrations or some of the laws under which activists would have been prosecuted
or which could have created records. (Flores Decl., Ex. I at 1g).
Defendants Reply:
Plaintiffs statement is
argumentative and does not offer any admissible evidence to controvert Defendants
Undisputed Fact. Accordingly, Plaintiffs response should be deemed an admission. See
Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1.
84

39.
The AUSA also pointed out that USAO-DC does not specifically target anyone,
or anything, for prosecution. (Kelly Decl. 17).

39.
Plaintiff objects to this statement, because it is not a fact. The Government has a
long, established history of targeting activists. That is what this FOIA actions has been
trying to establish, and there are press reports about the Governments activities to
target activists. (Dkt. 15 17-24). Furthermore, since the DOJ has asked George to
provide testimony in this action, giving Plaintiff an opportunity to cross-examine her as a
witness is only fair, and the Court needs to order limited discovery to allow for a
deposition of George.
Defendants Reply:
deemed an admission. See Fed. R. Civ. P. 56(c) and (e); L. Civ. R. 56.1. Defendant has
not asked AUSA George to provide testimony in this action.
85

Despite assurances from the Obama administration to the contrary, activists have still
been arrested for their activism.
Plaintiffs statement is argumentative and irrelevant, and does not cite to any admissible
evidence regarding a material fact; thus, this Court should disregard Plaintiffs statement.
86

a.
In remarks made on 24 November 2014, President Barak Obama (President
Obama) said that peaceful protests may occur, saying, in relevant part, I also
appeal to the law enforcement officials in Ferguson and the region to show care and
restraint in managing peaceful protests that may occur. Footnote 2. (Flores Decl., Ex.
O). Footnote 2: See Barack Obama, President Obama Delivers a Statement on the
Ferguson
Grand
Jurys
Decision,
White
House
(Nov.
24,
2014),
https://www.whitehouse.gov/blog/2014/11/24/president-obama-delivers-statementferguson-grand-jurys-decision.
Plaintiffs statement asserts immaterial facts. Accordingly, Plaintiffs statement should
87
Plaintiffs Statement No. 39.1(b):

b.
On 02 December 2014, then Attorney General Eric Holder (Holder) was
disrupted during the delivery of remarks in Atlanta, saying, in response to the Ferguson
activists, that social change is achieved through activism, What we saw there was a
genuine expression of concern and involvement. And it is through that level of
involvement, that level of concern and I hope a level of perseverance and commitment,
that change ultimately will come. Footnote 3. (Flores Decl., Ex. P). Footnote 3: See
Holly Yan and Catherin E. Shoichet, Ferguson fallout : Protesters interrupt Holders
speech, CNN (Dec. 2, 2015), http://www.cnn.com/2014/12/01/us/ferguson-up-to-speed/.
Defendants Response to Plaintiffs Statement No. 39.1(b):
88
Plaintiffs Statement No. 39.1(c):

c.
In contravention to the guidance provided by President Obama and Holder,
Ferguson activists were still arrested for peaceful activism outside the federal courthouse
in St. Louis, Missouri. Footnote 4. (Flores Decl., Ex. Q). Footnote 4: See Cristian
Farias, #BlackLivesMatter Activists in St. Louis Charged With Disturbance On Federal
Property,
The
Huffington
Post
(Aug.
10,
2015),
http://www.huffingtonpost.com/entry/blacklivesmatter-st-louischarges_55c93a8de4b0f1cbf1e61b8a.
Defendants Response to Plaintiffs Statement No. 39.1(c):
Plaintiffs statement is argumentative, constitutes legal argument, and asserts immaterial
facts. Accordingly, Plaintiffs statement should be rejected. See Fed. R. Civ. P. 56(c)
and (e); L. Civ. R. 56.1.
89
Plaintiffs Statement No. 39.2(d):

In respect of the Federal Bureau of Investigation (FBI):
d.
According to The New York Times, the FBI once sent an anonymous letter to the
civil rights activist, the Rev. Dr. Martin Luther King, Jr., with the intention to drive him
to commit suicide. Footnote 5. (Flores Decl., Ex. R). Footnote 5: See Beverly Gage,
What an Uncensored Letter to M.L.K. Reveals, N.Y. Times (Nov. 11, 2014),
http://www.nytimes.com/2014/11/16/magazine/what-an-uncensored-letter-to-mlkreveals.html.
Defendants Response to Plaintiffs Statement No. 39.2(d):
90
Plaintiffs Statement No. 39.2(e):

e.
According to Mother Jones, John Lennon, and his wife, Yoko Ono, were going to
face deportation hearings for having been cited by the FBI for revolutionary activities.
Footnote 6. (Flores Decl., Ex. S). Footnote 6: See AJ Vicens, Check Out This FBI
Memo Citing John Lennons Revolutionary Activities, Mother Jones (Oct. 9, 2014),
http://www.motherjones.com/politics/2014/10/fbi-memo-john-lennon-revolutionaryactivities.
Defendants Response to Plaintiffs Statement No. 39.2(e):
91

Some activists hold demonstrations, and do not face criminal charges for their
demonstrations from local police, but they do face criminal charges from federal police,
as noted in a 2000 report of HIV/AIDS activists, who were arrested outside the
headquarters of the Republican National Committee, where it was noted, in relevant part,
that, [T]he protesters were to be charged with obstruction of passage on federal
grounds, a violation of D.C. law. They were not arrested on the steps of the RNC
because that area falls under the jurisdiction of the D.C. Metropolitan Police, who chose
not to take action . Footnote 7. (Flores Decl., Ex. T)[.] Footnote 7: See AIDS/HIV:
ACT UP Rallies Against Bush at RNC Headquarters, California Healthline (Oct; 17;
2000), http://www.californiahealthline.org/articles/2000/10/17/aidshiv--act-up-ralliesagainst-bush-at-rnc-headquarters.
92

A two-day protest by housing activists that took place outside the DOJ resulted in almost
30 arrests, including complaints by activists that law enforcement used tasers on
activists. According to the report in Rolling Stone, it appeared that the Federal
Protective Service, part of the U.S. Department of Homeland Security, was the law
enforcement agency in charge. Footnote 8. (Flores Decl., Ex. U). Footnote 8: See John
Knefel, Why Are Homeowners Being Jailed for Demanding Wall Street Prosecutions?,
Rolling Stone (May 22, 2013), http://www.rollingstone.com/politics/news/why-arehomeowners-being-jailed-for-demanding-wall-street-prosecutions-20130522.
93

Allegations have been made that the DOJ mounts vindictive prosecution of activists,
such as in the case of Lt. Choi. Footnote 9. (Flores Decl., Ex. V). Footnote 9: See Scott
Wooledge, Updated: Judge Allows Lt. Dan Chois vindictive prosecution Defense,
Daily Kos (Aug. 31, 2011), http://www.dailykos.com/story/2011/08/31/1012290/Updated-Judge-Allows-Lt-Dan-Choi-s-vindictive-prosecution-Defense ; Lou Chibbaro
Jr., Judge rules against Choi in vindictive prosecution claim, Washington Blad (Oct.
17, 2011), http://www.washingtonblade.com/2011/10/17/judge-rules-against-choi-invindictive-prosecution-claim/.
94

As reported by The New York Times, the family of the late Internet activist Aaron Swartz
believed that the Government mounted criminal cases rife with intimidation and
prosecutorial overreach in respect of the late young Mr. Swartz, adding that the
Massachusetts U.S. Attorneys Office and others contributed to the death of the young
late Mr. Swartz. Footnote 10. (Flores Decl., Ex. W). Footnote 10: See Noam Cohen, A
Data Crusader, a Defendant and Now, a Cause, N.Y. Times, Jan. 14, 2003,
http://www.nytimes.com/2013/01/14/technology/aaron-swartz-a-data-crusader-and-nowa-cause.html.
95

a.
In 2013, U.S. Representative Darrell Issa, chair of the House Oversight and
Government Reform committee, and U.S. Representative Elijah Cummings wrote a letter
to the DOJ, demanding an explanation of the fervent prosecution of the late Internet
activist Aaron Swartz. Footnote 11. (Flores Decl., Ex. X). Footnote 11: See, e.g., Kim
Zetter, Congress Demand Justice Department Explain Aaron Swartz Prosecution, Wired
(Jan. 29, 2013), http://www.wired.com/threatlevel/2013/01/doj-briefing-on-aaron-swartz/
; March Wheeler, Aaron Swartz reveals the hypocrisy of our Justice Department, Salon
(Jan.
15,
2013),
http://www.salon.com/2013/01/16/aaron_swartz_reveals_the_hypocrisy_of_our_justice_
department/.
96

The prosecution of some activists has provoked public outrage and calls for legislative
reform. Footnote 12. (Flores Decl., Ex. Y). Footnote 12: See Tom Risen, Barrett
Browns Prison Time Raises Cybersecurity, Journalism Concerns, U.S. News & World
Report (Jan. 23, 2015), http://www.usnews.com/news/articles/2015/01/23/barrettbrowns-prison-time-raises-cybersecurity-journalism-concerns.
97

In 2011, The Washington Post reported that the during [sic] the tenure of U.S. Attorney
Patrick Fitzgerald the Government conducted raids and searches as part of a
mysterious, ongoing nationwide terrorism investigation with an usual target :
prominent peach activists and politically active labor organizers. Footnote 13. (Flores
Decl., Ex. Z). Footnote 13: See Peter Wallsten, Activists cry foul over FBI probe, The
Washington Post (June 13, 2011), http://articles.washingtonpost.com/2011-0613/politics/35235946_1_activists-cry-stephanie-weiner-targets ; Kevin Gosztola, FBI
Continues to Target Activists in Chicago and Minneapolis (VIDEO), Firedoglake (Dec.
9,
2010),
http://my.firedoglake.com/kgosztola/2010/12/09/fbi-continues-to-targetactivists-in-chicago-and-minneapolis/ ; Josh Gerstein, After 1 year, FBI returns property
to
Minnesota
anti-war
activists,
Politico
(Nov.
3,
2011),
http://www.politico.com/blogs/joshgerstein/1111/FBI_returns_property_to_Minnesota_a
ntiwar_activists.html.
98

HIV/AIDS activists complained in 2012 that now form U.S. Attorney Ronald Machen held
them to a different and unfair standard, such as bringing stricter criminal charges, than
other activists, who were arrested by local law enforcement for different activism.
Footnote 14. (Flores Decl., Ex. AA). Footnote 14: See Arin Greenwood, HIV/AIDS
Activists Complain Of Unfair Treatment By U.S. Attorneys Office, The Huffington Post
(Feb.
8,
2012),
http://www.huffingtonpost.com/2012/02/08/aids-activistsprotest_n_1263144.html ; Brianne Carter, D.C. mayor Vincent Gray, councilmembers
arrested
:
Protesters
plead
not
guilty,
WJLA
(May
5,
2011),
http://www.wjla.com/articles/2011/05/d-c-mayor-vincent-gray-councilmembers-arrestedprotesters-to-appear-in-court--60103.html ; Debbie Siegelbaum, AIDS activists allege
discriminatory treatment following Capitol arrest, The Hill (Feb. 8, 2011),
http://thehill.com/homenews/house/209485-aids-activists-allege-discriminatorytreatment-after-capitol-protest-arrest.
99
Case 1:15-cv-02627-JG-RLM Document 27-1 Filed 02/12/16 Page 100 of 170 PageID #:
1502

40.
Because USAO-DC does not maintain records in a format that identifies
targeted or target as searchable terms, those terms could not be used to search for records
responsive to any part of the FOIA request. (Kelly Decl. 17).
40.
Plaintiff objects to this statement, because Plaintiff has made his objection known
to the DOJ that the search strings were incomplete and defective. (Flores Decl., Ex. I at
1b, 1c, 1d, 1e, 1g). Plaintiff further notes that the First FOIA Request included an item
requesting the names of activists, who have been targeted for prosecution. (Dkt. 15
34). (Dkt. No. 12, Ex. I of Ex. C). Furthermore, Plaintiff conducted due diligence and
identified examples of names activists prosecuted by the government in the First FOIA
Request, in the Complaint, and in Plaintiffs Index of References to Records Requested
under FOIA Request, a copy of which was provided to Defendant at the Initial
Conference, to make it easy for the DOJ to locate responsive records. (Flores Decl., Ex.
L). There is no indication that the DOJ searched for records under all of these names for
all of the DOJ guidelines. (Flores Decl., Ex. I at 1c).
Defendants Reply:
FOIA request on August 17, 2015, and is not withholding records responsive to
Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 5-24). The
Court also denied Plaintiffs request for discovery.
(See Dkt. No. 14).
Plaintiffs
100
1503

Plaintiff also notes that, at the Initial Conference, Plaintiff requested and was granted by
the Court permission to amend the Complaint in this action to add demands for remedies
as a consequence of the bad faith acts and misrepresentations made by the DOJ. (Dkt.
No. 14 at 1).
Plaintiffs statement asserts immaterial facts. Defendant acknowledges that the Court
permitted Plaintiff leave to amend his Complaint pursuant to Rule 15 of the Federal Rules
of Civil Procedure. (See Dkt. No. 14). Accordingly, Plaintiffs statement should be
101
1504

Plaintiff also notes that, at the Initial Conference, the Hon. Magistrate Judge Mann said
that nothing precluded Plaintiff from having to file another FOIA request to obtain
responsive records from the DOJ.
102
1505

41.
With regard to any rules, procedures or guidelines being sought through the FOIA
request, (see Request No. 1.C.), the AUSA advised that she did not have a manual to refer to
regarding the prosecution of activists. (Kelly Decl. 18).
41.
Plaintiff objects to this statement, because, as the record has shown, the DOJ
later produced records from the United States Attorneys Manual. (Flores Decl., Ex. G
at Tabs D, E, and G). Plaintiff is improbably asking this Court to believe that George
does not have a physical copy of the United States Attorneys Manual, or that she does
have online access to the United States Attorneys Manual, which is available on the
Internet, particularly troubling since George has tried activists for their activism when
the Government has provided some guidelines to Plaintiff about the prosecution of
activists.
Defendants Reply:
and are unsupported by evidence. The materials that Defendant voluntarily produced to
Plaintiff on October 13, 2015 were not responsive to Plaintiffs FOIA request. (See
Singh Decl., Ex. K). The DOJ has made the U.S. Attorneys Manual publicly available
pursuant
to
U.S.C.
552(a)(2)
in
its
online
FOIA
Library.
See
http://www.justice.gov/usao/resources/foia-library. The U.S. Attorney Manual provision

provided to Plaintiff does not include guidelines . . . about the prosecution of activists.
Sections 9-65.880 to -.882 of the U.S. Attorney Manual relate to violations or potential
violations of 18 U.S.C. 970, which is entitled Protection of property occupied by
foreign governments. See 18 U.S.C. 970; (Flores Decl., Ex. G at Tab D). Plaintiff
103
1506

42.
In item 2B of his FOIA request, Plaintiff sought information related to the limits
of DOJs prosecution to minimi[z]e the interference with First Amendment, other Constitutional
rights, civil liberties, and other civil rights of Lt. Choi. (Kelly Decl. 19; Singh Decl., Ex. A at
p. 4).
42.
Plaintiff does not object to this statement.
Defendants Reply:
56.1(c).
104
1507

43.
Due to the broad and vague description in item 2B of the FOIA request, Ms. Kelly
was unable to ascertain exactly which records Plaintiff sought and could not formulate a search
for records related to item 2B. (Kelly Decl. 19).
43.
Plaintiff objects to this statement. The DOJ forced an employee, who had been
employed only since April 2015 to provide one of the Declarations filed before this
Court. (Stone Decl.) Plaintiff has raised questions and expressed objections about the
qualifications of Karin Kelly. (Flores Decl., Ex. I at 1). Without more information
about Karin Kellys experiences, the length of her tenure, and the status of her
employment (i.e., is she a temporary employee or a permanent employee), it is not
enough for the DOJ to make this statement.
a.
Plaintiff notes that of the ten items listed in I.1. and I.2. of the First FOIA
Request, the Government has only directly addressed items I.1.C. and I.2.B. in
Defendants 56.1 Statement. (Def.s 56.1 Stmt. at 26-43).
Defendants Reply:
and are unsupported by evidence.
Ms. Kelly, as a Paralegal Specialist and FOIA
Coordinator at USAO-DC, declared that she had knowledge of the records and files of
the USAO-DC and that she was personally conducted the search in response to Plaintiffs
FOIA request as part of her official duties. (See Kelly Decl. 1-2, 6-7). In addition,
Ms. Stone is an Attorney-Advisor with the FOIA/Privacy Act staff on the EOUSA, is
familiar with the EOUSAs procedures for responding to a FOIA request, and has
personal knowledge as to Plaintiffs FOIA request in her official capacity. (See Stone
Decl. 1-3). Plaintiffs statement does not cite to any admissible evidence regarding a
material fact; thus, this Court should disregard Plaintiffs statement. Fed. R. Civ. P.
56(e)(2); L. Civ. R. 56.1(d).
105
1508
2. Search for Records Responsive to Item 3 of Plaintiffs FOIA Request

44.
In item 3 of the FOIA request, Plaintiff appears to seek a response to the question
of what the legal basis may have been for the USAO-DC or DOJ to refer to Daniel Choi as Mr.
Choi instead of Lt. Choi during his prosecution. (See Singh Decl., Ex. A at p. 4).
44.
Plaintiff objects to this statement, as it is not based on fact. The exact wording of
the request for item I.3. in the First FOIA Request is : All records and information
created on or after Nov. 12, 2010, pertaining to the legal basis for the Department of
Justice or U.S. Attorneys Office to fail to refer to Lt. Choi by his military rank, in
accordance with Army Regulation 670-1. The request in this item is for records.
(Dkt. 15 34c). (Dkt. No. 12, Ex. I of Ex. C).
Defendants Reply:
Defendant disputes Plaintiffs statements which are argumentative and conclusory.
Plaintiffs statement does not cite to any admissible evidence regarding a material fact;
R. 56.1(d).
106
1509

45.
Because Plaintiff appears to seek a response to a question, Ms. Kelly could not
search for records responsive to this request. (Kelly Decl. 20).

45.
Plaintiff objects to this statement, as this statement is a matter of opinion and is
not based on fact. Plaintiff notes that Karin Kelly didnt even attempt to do a search.
(Kelly Decl. 20). Plaintiff further notes that Karin Kelly had been in communication
with George, and Karin Kelly could have asked George about item I.3. (Kelly Decl.
37-38). Your Honor, either rules or guidelines exist that the DOJ follow about the use
of courtesy, official, or military titles in the Courts, or they do not exist.
Defendants Reply:
Defendant disputes Plaintiffs statements which are argumentative and conclusory.
R. 56.1(d).
107
1510
3. Search for Records Responsive to Item 4 of Plaintiffs FOIA Request

46.
To determine if USAO-DC maintained any records responsive to item 4 in
Plaintiffs FOIA request, Ms. Kelly contacted the USAO-DC Budget Officer (Budget Officer)
and provided the Budget Officer the relevant portion of the FOIA request seeking the costs
associated with the Choi prosecution. (Kelly Decl. 21).
46.
Plaintiff has no information about this statement, other than Plaintiff has raised
questions about the restrictions of search strings and language by Karin Kelly in the
conduct of her searches. (Flores Decl., Ex. I at 1g).
a.
Plaintiff notes that item I.4 in the First FOIA Request contained six subitems. (Dkt. 15 34d). (Dkt. No. 12, Ex. I of Ex. C). However, Karin Kelly does not
specifically cite all of the records requests [sic] under item I.4. Instead Karin Kelly
invented a new item 3 that does not appear on the First FOIA Request and mislabeled
item I.4. as C. (Kelly Decl. 20).
Defendants Reply:
evidence to refute Defendants Undisputed Fact or demonstrate the existence of a material
fact as to which there is a genuine dispute. Accordingly, Plaintiffs response should be
Section C of Ms. Kellys declaration addresses Costs Associated with the Choi Case
(Plaintiffs Request item 4) and is comprised of paragraphs 21 through 24 of her
declaration. (See Kelly Decl. 21-24). Paragraph 20 of Ms. Kellys declaration, to
which Plaintiff cites, relates to item 3 of Plaintiffs Request, which is noted in the
heading of the section (section B) as being summarized as DOJs Alleged Failure to
108
1511
Address Choi by His Military Rank (Plaintiffs Request Item 3). (See Kelly Decl.
20).
109
1512

47.
The Budget Officer explained to Ms. Kelly that the accounting system used by
USAO-DC does not record costs associated with a particular case by defendant name or on a
defendant-per-defendant basis where multiple defendants are prosecuted in one case. (Kelly
Decl. 22).
47.
Plaintiff has no information about this statement.
Defendants Reply:
110
1513

48.
Any search to ascertain costs associated with a particular defendant would need to
be conducted by searching the individual requests made by any AUSA or staff assigned to the
case, taking out budget requests for other cases that those individuals worked on during the
selected time frame, and somehow attempting to ascertain what costs may be attributed to the
one defendant, as opposed to a co-defendant or the overall case. (Kelly Decl. 22).
48.
Defendants Reply:
111
1514

49.
Some examples of requests made by an AUSA or staff member that would result
in costs covered by the USAO-DC would include requests for transcripts of a proceeding or fees
associated with an expert witness. (Kelly Decl. 22).
49.
Defendants Reply:
112
1515

50.
If an AUSA or staff member made numerous requests in various cases, sorting
through resulting accounting documents would have to be done manually. (Kelly Decl. 22).
50.
Defendants Reply:
113
1516

51.
As a result, accounting records do not exist for a single defendant when there are
multiple co-defendants nor are there records as to an individual defendants share of the
overall cost of prosecuting the multi-defendant case. (Kelly Decl. 23).
51.
Plaintiff objects to this statement, because this statement was manufactured to
exclude the fact that cost records exist for all of the defendants, who were arrested and
charged for crimes related to their activism along with Lt. Choi. As requested by
Plaintiff, the DOJ was asked to produce the cost records for all of the defendants
arrested on Monday, November 15, 2010, in the White House fence demonstration to end
the Governments discriminatory policy of Dont Ask, Dont Tell, so that that way, the
DOJ could disclose response records as a compromise. (Flores Decl., Ex. I at 1h).
Defendants Reply:
and are unsupported by evidence. Plaintiffs FOIA request did not seek any cost records
for individuals other than Lt. Choi. (See Singh Decl., Ex. A). Plaintiffs statement does
not cite to any admissible evidence regarding a material fact; thus, this Court should
114
1517

52.
It is not possible to segregate the accounting documents for a single defendant
when there are multiple co-defendants or to otherwise ascertain a defendants share of the
overall cost of prosecuting the multi-defendant case. (Kelly Decl. 24).
52.
Plaintiff objects to this statement, as Plaintiff has objected to this Declaration,
and Plaintiff has offered to compromise with the DOJ, so that the DOJ could release
responsive records that would address the cost of the prosecution of activists, who were
charged with crimes along with Lt. Choi, negotiation efforts that were cut short by the
Courts rejection of Plaintiffs request for more time to negotiate with the DOJ. (Flores
Decl., Ex. I at 1h). (Dkt. No. 19 at 2).
Defendants Reply:
and are unsupported by evidence. Plaintiffs FOIA request did not seek any cost records
for individuals other than Lt. Choi. (See Singh Decl., Ex. A). Plaintiffs statement does
not cite to any admissible evidence regarding a material fact; thus, this Court should
115
1518

53.
The USAO-DCs prosecution of Daniel Choi was part of a multi-defendant case.
(See United States of America v. Farrow et al., No. 10-mj-00739-JMF (D.D.C.)). 1

53.
Plaintiff has no information to confirm this statement.
Defendants Reply:
Defendant would be happy to provide a copy of the docket sheet in the Choi
prosecution, at the Courts request.
116
1519
4. The Search for Publicly Available Records Relating to the Choi Prosecution
54.
After being informed that USAO-DCs searches did not locate any records
responsive to Plaintiffs request, EOUSA directed USAO-DC to conduct a search for public
records related to Daniel Choi because Plaintiffs FOIA request was related to Chois
prosecution. (Stone Decl. 6-7).
54.
Plaintiff has no information about this, and Plaintiff notes that, once Plaintiff
gave the names of activists, who were prosecuted for their activism, to the DOJ, the DOJ
was able to conduct a search for records. (Flores Decl., Ex. G).
Defendants Reply:
Civ. R. 56.1(d).
The materials that Defendant voluntarily produced to Plaintiff on
October 13, 2015 were not responsive to Plaintiffs FOIA request. (See Singh Decl., Ex.
K).
117
1520

55.
At the request of EOUSA, Ms. Kelly conducted a search for publicly-available
information related to the Choi case that was available in USAO-DC files. (Kelly Decl. 25).
55.
Plaintiff has no information about this, but Plaintiff notes that the DOJ refuses to
identify who was providing guidance, instruction, and direction to Karin Kelly in the
conduct of the searches for records responsive to the First FOIA Request, given that
Karin Kelly has not yet been employed for one year by the DOJ.
Defendants Reply:
Civ. R. 56.1(d).
118
1521

56.
Ms. Kelly located publicly-available documents in USAO-DC files, most of
which are also available on PACER, although the documents found were not the full set of
documents available on PACER in connection with the Choi prosecution. (Kelly Decl. 2627).
56.
Plaintiff notes that records were found in regards to the First FOIA Request in the
files of the USAO-DC, but the DOJ has yet to explain why no records were ever located
in the two years prior to the filing of this action. (Kelly Decl. 26-27). (Dkt. 9 27).
Also, there is no documentation in the Declarations about how the search for the paper
files was conducted.
Defendants Reply:
Civ. R. 56.1(d).
119
1522

57.
Ms. Kelly electronically scanned the records into a database system for review by
EOUSA staff. (Kelly Decl. 28).

57.
Plaintiff notes that the DOJ has a list of records that can be produced from the
database system, but any list from that system has not been provided to Plaintiff. (Kelly
Decl. 28).
Defendants Reply:
Civ. R. 56.1(d). Plaintiffs citation to paragraph 28 of Ms. Kellys declaration does not
support the speculative position that the DOJ has a list of records that can be produced
from the database system[.] (See Kelly Decl. 28).
120
1523

58.
EOUSA staff, then, compiled for a release those documents received from
USAO-DC that related specifically to Daniel Choi, rather than, for example, other co-defendants
in that prosecution. (Stone Decl. 8).
58.
Plaintiff has not identified the EOUSA staff, who compiled the documents for
release. If that staff are comprised of DOJ management, senior supervisors, or section
chiefs, then the DOJ has ignored Plaintiffs request for a better or umbrella
Declaration to cover the Declarations being provided by junior or temp staff. (Flores
Decl., Ex. I at 2a-2c).
a.
Plaintiff raised numerous issues and requests for clarification in respect of
the Declaration of Princina Stone that the DOJ never answered in its letter of 3
November 2015 (the Incomplete Due Diligence Response Letter). (Flores
Decl., Ex. I at 1-2). (Flores Decl., Ex. J).
Defendants Reply:
Defendant disputes Plaintiffs statements which are argumentative and speculative, are
legal conclusions and are unsupported by evidence. Plaintiffs statement does not cite to
121
1524
D.
EOUSAs Response to Plaintiffs FOIA Request

59.
On August 17, 2015, following the searches conducted by Ms. Kelly, EOUSA
provided Plaintiff with a response to his FOIA request. (Stone Decl. 9; Singh Decl., Ex. I).
59.
Plaintiff contests this statement that the DOJ made a response, since the DOJ
has admitted that the Red Herring Response was not responsive to the First FOIA
Request. (Flores Decl., Ex. F at 1). Plaintiff adds that prior to the production of the Red
Herring Release, Defense Counsel and Plaintiff participated in a Telephone Conference
on or about 26 August 2015 in which Defense Counsel informed Plaintiff that the DOJ
planned to file a motion for summary judgment as soon as the DOJ produced its response
to the First FOIA Request. During that call, and at no time prior to the production of the
Red Herring Response, did the DOJ ever ask Plaintiff for information to supplement,
clear-up, or explain the First FOIA Request, nor did the DOJ request from Plaintiff
proposed search strings with which to conduct it [sic] searches for responsive records.
Defendants Reply:
and are unsupported by evidence. EOUSA responded to Plaintiffs April 30, 2013 FOIA
request on August 17, 2015, following a search for any agency records at the USAO-DC
that were responsive to any or all of the itemized requests in the April 30, 2013 letter, and
is not withholding records responsive to Plaintiffs request. (See Stone Decl. 9; Singh
Decl., Ex. I; Kelly Decl. 5-24). Plaintiffs statement does not cite to any admissible
122
1525

60.
In the response, EOUSA indicated that searches for records in the USAO-DC files
revealed no responsive records to items 1 through 4 of Plaintiffs FOIA request. (Singh Decl.,
Ex. I).
60.
Plaintiff contests this statement, as the cover letter from the EOUSA neither
provided a line-item accounting for the conduct of the search, nor an explanation for how
the Red Herring Release was in response to any line items in the First FOIA Request.
(Flores Decl., Ex. F at 1-2).
a.
Plaintiff further objects to this statement, since it is not based on fact, as it
has been shown in proceedings before this Court that the DOJ deliberately
withheld the kinds of documents that were responsive to the FOIA Request.
(Flores Decl., Ex. L at 5-6). The Myers memo (email), Capt. Guddemis
November 22 email, and Governments Exhibits 24 and 25, identified in the
records produced in the Red Herring Release, were responsive to the First FOIA
Request but were withheld by the DOJ after EOUSA staff compiled for the Red
Herring Release for release to Plaintiff. (Dkt. 12; Ex. B at 22-23, 27-28, 30,
33-34, 39.).
Defendants Reply:
and are unsupported by evidence. EOUSA responded to Plaintiffs April 30, 2013 FOIA
request on August 17, 2015, following a search for any agency records at the USAO-DC
that were responsive to any or all of the itemized requests in the April 30, 2013 letter, and
is not withholding records responsive to Plaintiffs request. (See Stone Decl. 9; Singh
Decl., Ex. I; Kelly Decl. 5-24). EOUSA appropriately exercised its discretion to
release non-responsive, publicly-available documents that involved, generally, the Choi
prosecution that were located in the files of USAO-DC. (Stone Decl. 6-8; Kelly Decl.
25-28). Plaintiff admitted that the production regarding the Choi prosecution was not
responsive to his FOIA request. (See Dkt. No. 12 (Letter from Plaintiff dated Sept. 3,
123
1526
2015 to the Court) ([T]he documents produced were non-responsive to the FOIA
Request.)).
For clarification, the referenced Government Exhibit 24 is the same document as the
referenced Capt. Guddemis November 22 email. (See Singh Decl., Ex. K at pp. 2-3;
Flores Decl., Ex. G at Tab B). That document was not responsive to Plaintiffs FOIA
request; it is a forwarded email chain, involving individuals at the National Park Service,
the United States Park Police, the United States Secret Service, and the United States
Capitol Police and was a notification of a possible Get Equal demonstration at the
White House and certain Senate Offices. (See Singh Decl., Ex. K at pp. 2-3; Flores
Decl., Ex. G at Tab B). No redactions or alterations to this document prior to providing it
to Plaintiff. (Declaration of Assistant U.S. Attorney Rukhsanah Singh dated Feb. 12,
2016 (Singh Reply Decl.) at 10).
In addition, the referenced Government Exhibit 25 is the same document as the
referenced Myers memo (email). (See Singh Decl., Ex. K at p. 2; Flores Decl., Ex. G
at Tab A).
That document was not responsive to Plaintiffs FOIA request.
It is
correspondence between an individual at the Solicitors Office of the United States

Department of the Interior and individuals at the National Park Service, which did not
copy any DOJ employee, does not constitute a USAO-DC record. (See Singh Decl., Ex.
K at p. 2; Flores Decl., Ex. G at Tab A). Defendant made no redactions or alterations to
this document prior to providing it to Plaintiff. (Singh Reply Decl. at 10).
R. 56.1(d).
124
1527

61.
EOUSA also indicated that it made a release, in its discretion, of information
regarding the Daniel Choi prosecution that was within USAO-DC records and that was publiclyavailable. (Singh Decl., Ex. I).
61.
Plaintiff contests this statement to the extent that the DOJ wrongly claims that it
can comply with FOIA in its discretion. (Def.s 56.1 Stmt. 61).
Defendants Reply:
125
1528

62.
EOUSAs response explained that non-public records relating to a third-party are
not generally released absent express authorization or consent of the third-party, proof that the
third-party is deceased, or a clear demonstration that the public interest in disclosure outweighs
the personal privacy interest and that significant public benefit would result from the disclosure
of the requested records. (Singh Decl., Ex. I).
62.
Plaintiff objects to this statement, because Plaintiff has requested an index of the
privacy-encumbered records. (Dkt. No. 12, Ex. A at 2, B at 46). (Flores Decl., Ex. I at
4j(i)-(ii)).
Defendants Reply:
126
1529

63.
EOUSA further explained that because Plaintiff had not provided any such
authorization from Daniel Choi, death certificate of Daniel Choi, or public justification, the
Privacy Act, 5 U.S.C. 552a, precluded EOUSA from including in the release any non-public
information regarding Daniel Chois prosecution that was within the files of USAO-DC. (Singh
Decl., Ex. I).
63.
Plaintiff objects to this statement, because Plaintiff has requested an index of the
privacy-encumbered records. (Dkt. No. 12, Ex. A at 2, B at 46). (Flores Decl., Ex. I at
4j(i)-(ii)).
Defendants Reply:
127
1530

64.
With the August 17, 2015 response, EOUSA made a release of 331 publicly-
available records to Plaintiff, although they were not responsive to Plaintiffs FOIA request.
(Singh Decl., Ex. I).
64.
Plaintiff does not contest the portion of this statement, where the DOJ admits that
the Red Herring Response was not responsive to the First FOIA Request. Plaintiff
does contest, however:
a.
Given that the DOJ has deliberately withheld some documents,
particularly, the Myers memo (email), Capt. Guddemis November 22 email,
and Governments Exhibits 24 and 25, that would have been responsive to the
First FOIA Request, it is obvious that the search that produced the Red Herring
Response was not lawful. (Dkt. 12, Ex. B at 22-23, 27-28, 30, 33-34, 39.) Some
of the documents responsive to the First FOIA Request, but withheld by the DOJ,
were identified in Plaintiffs Index of the First FOIA Response. (Dkt. 12, Ex. B).
Plaintiff notes further that the EOUSA deliberately withheld records of guidelines
for the prosecution of activists noted in the United States Attorneys Manual
under sections application [sic] to demonstrations that were later printed form
the Internet. (Flores Decl., Ex. G at Tab D). See U.S. Dept of Justice, United
States Attorneys Manual 9-65.880, .881, .882.
Defendants Reply:
EOUSA responded to Plaintiffs April 30, 2013 FOIA request on August 17, 2015,
following a search for any agency records at the USAO-DC that were responsive to any
or all of the itemized requests in the April 30, 2013 letter, and is not withholding records
responsive to Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl.
5-24).
EOUSA appropriately exercised its discretion to release non-responsive,
128
1531
publicly-available documents that involved, generally, the Choi prosecution that were
located in the files of USAO-DC. (Stone Decl. 6-8; Kelly Decl. 25-28). Plaintiff
has admitted that the production regarding the Choi prosecution was not responsive to his
FOIA request. (See Dkt. No. 12 (Letter from Plaintiff dated Sept. 3, 2015 to the Court)
([T]he documents produced were non-responsive to the FOIA Request.)).
For clarification, the referenced Government Exhibit 24 is the same document as the
referenced Capt. Guddemis November 22 email. (See Singh Decl., Ex. K at pp. 2-3;
Flores Decl., Ex. G at Tab B). That document was not responsive to Plaintiffs FOIA
request; it is a forwarded email chain, involving individuals at the National Park Service,
the United States Park Police, the United States Secret Service, and the United States
Capitol Police and was a notification of a possible Get Equal demonstration at the
White House and certain Senate Offices. (See Singh Decl., Ex. K at pp. 2-3; Flores
Decl., Ex. G at Tab B). Defendant made no redactions or alterations to this document
prior to providing it to Plaintiff. (Singh Reply Decl. at 10).
In addition, the referenced Government Exhibit 25 is the same document as the
referenced Myers memo (email). (See Singh Decl., Ex. K at p. 2; Flores Decl., Ex. G
at Tab A).
That document was not responsive to Plaintiffs FOIA request.
It is
correspondence between an individual at the Solicitors Office of the United States

Department of the Interior and individuals at the National Park Service and does not
constitute and did not copy any DOJ employee. (See Singh Decl., Ex. K at p. 2; Flores
Decl., Ex. G at Tab A). Defendant made no redactions or alterations to this document
prior to providing it to Plaintiff. (Singh Reply Decl. at 10).
129
1532
The materials that Defendant voluntarily produced to Plaintiff on October 13, 2015 were
not responsive to Plaintiffs FOIA request. (See Singh Decl., Ex. K).
The DOJ has made the U.S. Attorneys Manual publicly available pursuant to 5 U.S.C.
552(a)(2)
in
its
online
FOIA
Library.
See
http://www.justice.gov/usao/resources/foia-library. The U.S. Attorney Manual provision

provided to Plaintiff does not include guidelines . . . about the prosecution of activists.
Sections 9-65.880 to -.882 of the U.S. Attorney Manual relate to violations or potential
violations of 18 U.S.C. 970, which is entitled Protection of property occupied by
foreign governments. See 18 U.S.C. 970; (Flores Decl., Ex. G at Tab D).
130
1533

65.
EOUSA did not charge Plaintiff any fees in connection with the FOIA response.
(Singh Decl., Ex. I).

65.
Plaintiff objects to this statement, because Defense Counsel instructed Plaintiff
during a Telephone Conference between the parties on 01 September 2015 that all of the
documents missing from the Red Herring Release must be collected by Plaintiff at his
time and expense from PACER, which Plaintiff would have to pay for. (Flores Decl., Ex.
I at 4j(iii)). Plaintiff had previously raised this issue at the Initial Conference and asked
the Court to make a determination about the DOJs responsibility for providing publiclyavailable documents in response to a FOIA request, but the Court made no such
determination in its Omnibus Order following the Initial Conference. (Dkt. 14). Even
though Plaintiff had not yet received the Second FOIA Response by the date of another
Telephone Conference between the Parties, this one taking place on 16 October 2015,
Plaintiff and Defense Counsel discussed the issues, generally. During that 16 October
2015 Telephone Conference, Defense Counsel declared that DOJ could comply with
FOIA at its discretion, as assertion to which Plaintiff objected. Plaintiff later reminded
Defense Counsel during that same 16 October 2015 Telephone Conference that Plaintiff
would ask the Court to make a determination about the DOJs obligations under FOIA in
respect of the documents missing from the Red Herring Response.
Defendants Reply:
Counsel never instructed Plaintiff to obtain any documents from PACER, but, rather,
informed him that most of the publicly-available documents regarding the Choi
prosecution that were voluntarily provided to him were also available on PACER. (See
Dkt. No. 13 at p. 2 n.2; Singh Decl., Ex. N at p. 1; Singh Reply Decl. at 3). Counsel
further offered on numerous occasions to pull any and all such documents, at the
governments cost, but such offers were declined because Plaintiff took the position that
131
1534
the documents from the Choi prosecution were a red herring. (See Dkt. No. 13 at p. 2
n.2; Singh Decl., Ex. N at p. 1; Singh Reply Decl. at 3). Counsel never stated that the
DOJ could comply with FOIA at its discretion. (Singh Reply Decl. at 13). The
October 16, 2015 telephone conference was scheduled at Plaintiffs request and
conducted at the Courts direction for the parties to confer further. (Singh Reply Decl.
at 6, 8-9); (see also Dkt. No. 14).
132
1535

Plaintiff further notes that at the Initial Conference, the Honorable Magistrate Judge
Roanne Mann asked the DOJ whether records exist in response to the First FOIA
Request, or whether no records were found. Defense Counsel represented to the Court at
the Initial Conference that no responsive records were found in respect of the EOUSAs
search that produced the Red Herring Response.
Defendant disputes Plaintiffs statements which are argumentative and assert immaterial
facts. Accordingly, Plaintiffs statement should be rejected. See Fed. R. Civ. P. 56(c)
and (e); L. Civ. R. 56.1.
133
1536
E.
Plaintiffs Discovery Demands and Defendants Voluntary Responses Thereto

66.
On September 16, 2015, the Court held a status conference in this matter. (Dkt.
No. 14).
66.
Defendants Reply:
56.1(c).
134
1537

67.
During that conference, Plaintiff provided to Defendants counsel a 13-page
document entitled Plaintiffs Index of References to Records Requested under FOIA Request.
(Singh Decl., Ex. J).
67.
Defendants Reply:
56.1(c).
135
1538

68.
On September 16, 2015, the Court granted Plaintiff permission to
amend/supplement his complaint . . . without prejudice to any defenses the government might
raise and sustained Defendants objection to Plaintiffs request for discovery in this matter.
(Dkt. No. 14).
68.
Plaintiff does not contest this statement, except to add that other issues were
discussed at the Initial Conference, including, but not limited to, Plaintiffs request that
the Court make a determination about the DOJs obligations under FOIA to produce the
publicly-available records that the DOJ omitted from the Red Herring Release. Plaintiff
further notes that Plaintiff requested discovery in this case pursuant to the First
Amendment doctrine that judicial documents are public records.
Defendants Reply:
statements, as required by Fed. R. Civ. P. 56(c) and (e) and Local Civil Rule 56.1.
Plaintiffs responsive statements do not refute the facts in Defendants statement and do
not create a genuine issue of material fact. Accordingly, Plaintiffs response should be
136
1539

69.
The Court encourage[d] Defendant to voluntary search the files of Main
Justice and to produce any written guidelines for prosecution of activists. (Dkt. No. 14).
69.
Defendants Reply:
56.1(c).
137
1540

70.
The Court also encourage[d] Defendant to consider voluntarily producing at
least some of the documents listed on the index served on defense counsel today by plaintiff.
(Dkt. No. 14).
70.
Plaintiff does not contest this statement, except to note that the Courts instruction
was not to limit the DOJ to provide only at least some of the documents listed on
Plaintiffs Index of References to Records Requested under FOIA Request; rather, the
provision of additional responsive documents by the DOJ might resolve or at least
narrow this FOIA lawsuit. (Dkt. 19 at 2). However, the DOJ left unanswered many
questions that required clarification, and Plaintiff was only conducting due diligence on
the few responsive records produced by the DOJ. (Flores Decl., Ex. I).
Defendants Reply:
138
1541

71.
The Court directed the parties to confer further. (Dkt. No. 14).

71.
Plaintiff does not contest this statement, except to clarify that the period of the
conference was restricted to fifty-one (51) days, which was further restricted to only
seventeen (17) days, because the DOJ did not completely comply with the Courts order
to produce some records until 19 October 2015, when the Second FOIA Response was
received by Plaintiff, and the Court denied Plaintiffs request for an extension of time to
negotiate with the DOJ for the resolution of the due diligence questions raised by
Plaintiff. (Dkt. 14 at 2). (Dkt. 19 at 2). Furthermore, Defense Counsel had e-mailed to
Plaintiff the cover letter, dated 13 October 2015, from Defense Counsel without attaching
any of the responsive documents or Declarations. (Flores Decl., Ex. MM).
Defendants Reply:
139
1542

72.
On September 23, 2015, Plaintiff filed an Amended Complaint for Injunctive
Relief. (Dkt. No. 15).

72.
Defendants Reply:
56.1(c).
140
1543

73.
In Plaintiffs Amended Complaint, Plaintiff claimed that EOUSAs response to
his FOIA request was an act of bad faith. (See, e.g., Dkt. No. 15, 8, 10, 43, 50, 53, 57, 61).
73.
Defendants Reply:
56.1(c).
141
1544

74.
Plaintiff also alleged that Defendant engaged in other acts of bad faith in regards
to Plaintiffs FOIA request. (See, e.g., Dkt. No. 15, 8, 11, 27, 43, 47, 49, 50, 53, 57, 61).
74.
Plaintiff does not contest this statement, except to add that Plaintiff has noted acts
by the DOJ during the proceedings before this Court constitute bad faith. (Dkt. Nos. 7,
12, 18).
Defendants Reply:
Plaintiffs responsive statements do not refute the facts in Defendants statement, are
argumentative and legal conclusions, and do not create a genuine issue of material fact.
56(c) and (e); L. Civ. R. 56.1.
142
1545

75.
Plaintiff did not amend the causes of action asserted in the Amended Complaint.
(See Dkt. No. 15, 62-68).

75.
Plaintiff no [sic] information about needing to add causes of action to the
Amended Complaint.
Defendants Reply:
143
1546

76.
Plaintiff added the following request for relief to the Amended Complaint: Given
the demonstrations of bad faith by Defendant and to verify that the DOJ components release all
responsive records, appoint a monitor to conduct or verify the search for responsive records,
order the conduct of in camera reviews of records, and/or impose sanctions and penalties,
including fines, against the Defendant to compel compliance with FOIA and to deter each of
future acts of bad faith and future violations of FOIA. (Dkt. No. 15 at p. 31).
76.
Defendants Reply:
56.1(c).
144
1547

77.
On October 8, 2015, Defendant filed an Answer to Plaintiffs Amended
Complaint. (Dkt. No. 17).

77.
Plaintiff does not contest this statement, except to note that the DOJ amended
many statements from its original Answer, changing the representations it was making
before this Court, changes that included amending its representation from admitting that
George had a copy of the First FOIA Request all along to disguising from the Court this
undisputed fact, for example. (Dkt. Nos. 9 29, 17 29). Furthermore, Plaintiffs April
30, 2013 e-mail, attached to which was a copy of the First FOIA Request, was addressed
to George, amongst many other individuals. (Flores Decl., Ex. JJ).
Defendants Reply:
Plaintiffs responsive statements do not refute the facts in Defendants statement, are
argumentative and legal conclusions, and do not create a genuine issue of material fact.
56(c) and (e); L. Civ. R. 56.1.
As to Plaintiffs reference to paragraph 29 of Defendants Answer, Defendant denied the
allegations of paragraph 29 of Plaintiffs Amended Complaint (which related to an email
dated March 27, 2013 and pre-dated the April 30, 2013 FOIA request), but admitted that,
on March 27, 2013, Plaintiff sent an email to Angela George, asking for certain
information regarding the prosecution of Daniel Choi. (Dkt. No. 17 at 29). Paragraph
29 of Defendants Answer to Plaintiffs Amended Complaint is necessarily different than
the originally filed Answer because Plaintiff Amended his allegations of paragraph 29.
145
1548
(See Dkt. No. 16 at 29 (Plaintiffs Amended Complaint in track changes format)

(changing the date of referenced email from April 30, 2013 to March 27, 2013)).
The only allegation in Plaintiffs Amended Complaint regarding an April 30, 2013 email
to AUSA George is found in paragraph 4 of the Amended Complaint, where Plaintiff
alleges [o]n April 30, 2013, a courtesy copy of the Request was sent to [sic] by
electronic mail to Bill Miller and to George, amongst others. (Dkt. No. 15 at p. 3 4).
In Defendants Answer to Plaintiffs Amended Complaint, Defendant admitted that
Plaintiff sent email communications to DOJ personnel staff at [USAO-DC], including
emails dated March 27, 2013 and April 30, 2013 to Angela George, . . . . (Dkt. No. 17
at p. 2 4).
146
1549

78.
On October 13, 2015, Defendant sent Plaintiff a letter enclosing the Declarations
of Princina Stone and Karin Kelly, which described the searches for records responsive to
Plaintiffs April 30, 2013 FOIA request. (Singh Decl., Ex. K).
78.
Defendants Reply:
56.1(c).
147
1550

79.
Defendant informed Plaintiff that it agreed to voluntarily search the files of the
Office of the Assistant Attorney General (OAAG) for the Criminal Division in Washington,
D.C. for any written guidelines concerning the prosecution of activists. (Singh Decl., Ex. K).
79.
Plaintiff contests this statement, because the Court asked the DOJ to conduct this
search. This can hardly be described to be being [sic] done voluntarily, when it was
written into the Courts Omnibus Order. (Dkt. No. 14 at 2).
Defendants Reply:
and are unsupported by Evidence. Plaintiffs statement does not cite to any admissible
148
1551

80.
Defendant also advised that it was producing certain documents responsive to
Plaintiffs September 16, 2015 Index, although they were not responsive to Plaintiffs April
30, 2013 FOIA request. (Singh Decl., Ex. K).
80.
Plaintiff strongly contests this statement, because these documents were
responsive to the First FOIA Request. Furthermore, after Plaintiff reviewed these
documents for due diligence purposes and for purposes of completeness, Plaintiff
produced a letter raising due diligence questions and requests for clarification. (Flores
Decl., Ex. I).
a.
Amongst the records produced by the DOJ were guidelines for the
prosecution of activists, guidelines which originated form the United States
Attorneys Manual. (Singh Decl., Ex. K at 3).
Defendants Reply:
and are unsupported by Evidence. Plaintiffs statement does not cite to any admissible
The materials that Defendant voluntarily produced to Plaintiff on October 13, 2015 were
not responsive to Plaintiffs FOIA request. (See Singh Decl., Ex. K). Notably, the DOJ
has made the U.S. Attorneys Manual publicly available pursuant to 5 U.S.C. 552(a)(2)
in its online FOIA Library.
See http://www.justice.gov/usao/resources/foia-library.
The U.S. Attorney Manual provision provided to Plaintiff does not include guidelines . .
. about the prosecution of activists. Sections 9-65.880 to -.882 of the U.S. Attorney
Manual relate to violations or potential violations of 18 U.S.C. 970, which is entitled
Protection of property occupied by foreign governments. See 18 U.S.C. 970; (Flores
Decl., Ex. G at Tab D).
149
1552

81.
On October 15, 2015, Defendant informed Plaintiff that the OAAGs search did
not locate any guidelines for the prosecution of activists. (Singh Decl., Ex. L).
81.
Plaintiff has no information to confirm this statement, and Plaintiff notes that the
Defense Counsel made a material misrepresentation to Plaintiff about the DOJ
components that had a Criminal Division, saying that there were no other components at
the DOJ with a Criminal Division other than the components that had conducted
searches pursuant to the First FOIA Request, a falsehood, since the Civil Rights Division,
a component that works to uphold civil and constitutional rights of all Americans,
particularly some of the most vulnerable members of our society, (footnote 15) also
contains a Criminal Division, prompting Plaintiff to file the Second FOIA Request to
ensure production of all responsive records to the First FOIA Request. (Flores Decl., Ex.
I at 4(m)(i); see also Attachment to Flores Decl., Ex. I). Plaintiff further notes that the
DOJ did not provide a Declaration for this search, and there is no description or
information provided to Plaintiff in the no records letter about how the search was
conducted, and who conducted the search. Footnote 15: See Civil Rights Division,
About the Division, U.S. Department of Justice (Sept. 22, 2015),
http://www.justice.gov/crt/about-division.
Defendants Reply:
evidence to refute Defendants statement or demonstrate the existence of a material fact
as to which there is a genuine dispute. Accordingly, Plaintiffs response should be
During the October 16, 2015 telephone conference between Plaintiff and counsel,
Plaintiff inquired whether any component of DOJ other than OAAG would likely have
guidelines regarding the prosecution of activists. (Singh Reply Decl. at 12). Counsel
responded that there was no other criminal division component that would have
150
1553
guidelines for the prosecution of activists other than the OAAG. (See Singh Reply Decl.
at 12; Singh Decl., Ex. N at p. 2 n.1).
151
1554

82.
On October 26, 2015, Plaintiff sent Defendant an 11-page letter, seeking
additional information and raising various questions. (Singh Decl., Ex. M).
82.
Plaintiff contests this statement, since the information being sought and questions
being asked were for purposes of conducting due diligence and receiving clarification
and to achieve completeness from the DOJ in its response to the First FOIA Request,
which, for two years, was unanswered without explanation from the DOJ. (Dkt. 9 27).
(Flores Decl., Ex. I).
Defendants Reply:
and are unsupported by evidence. Plaintiffs statement does not cite to any admissible
152
1555

83.
On November 3, 2015, Defendant responded to Plaintiffs October 26, 2015
letter. (Singh Decl., Ex. N).

83.
Plaintiff contests this statement, because the response was another bad faith
act by the DOJ to avoid providing clarification about its actions and its refusal to fully
provide all records responsive to the First FOIA Request. Perhaps only two out of many,
many questions were answered. (Flores Decl., Ex. J).
Defendants Reply:
and are unsupported by evidence. Plaintiffs statement does not cite to any admissible
Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(d)
153
1556
Plaintiffs Statements
Defendant objects to Plaintiffs Statement in its entirety. Plaintiffs Statement fails to
comply with Local Civil Rule 56.1(b), which provides only for the non-moving party to respond
to the moving partys Local Civil Rule 56.1(a) Statement of Undisputed Material Facts, and to
include, if necessary, additional paragraphs containing a separate, short and concise statement of
additional material facts as to which the non-moving party contends there exist a genuine issue to
be tried. Plaintiffs Statement fails to identify a genuine issue of material fact to be tried.
Rather, Plaintiffs Statement sets forth assertions of irrelevant materials, speculation and
arguments, which are not supported by admissible evidence.
To the extent that Defendant disputes Plaintiffs Statement, there are no genuine issues of
material fact that necessitate a trial on the claims that are the subject of Defendants motion for
summary judgment or Plaintiffs cross-motion for partial summary judgment.
F.
The Governments Pattern and Practise [sic] of Violating FOIA

Defendant objects to Plaintiffs heading and the statements made therein.
Plaintiffs Statement No. 84:
In 2013, Mother Jones reported that filing a FOIA request and getting information back
is still a struggle. Footnote 16. (Flores Decl., Ex. BB). Footnote 16: See Erika Eichelberger,
Most Transparent Administration Ever Is Still Not, Mother Jones (Feb. 7, 2013),
http://www.motherjones.com/mojo/2013/02/darrell-issa-elijah-cummings-foia-transparencydepartment-of-justice.
Defendants Response to Plaintiffs Statement No. 84:
Plaintiffs statement asserts immaterial facts and does not cite to any admissible
Fed. R. Civ. P. 56(c) and (e)(2); L. Civ. R. 56.1.
154
1557

In 2013, the leadership of the U.S. House of Representatives Committee on Oversight and
Government Reform sent a letter the OIP to [sic] to focus attention on concerns that included
fees for accessing government records, backlogs of FOIA Requests, and the misuse of
exemptions (the Oversight Letter to the OIP). Footnote 17. (Flores Decl., Ex. CC). Footnote
17: See Darrell Issa & Elijah Cummings, Letter to Office of Information Policy, U.S. House of
Representatives (Feb. 4, 2013), http://oversight.house.gov/wp-content/uploads/2013/02/2013-0204-DEI-EEC-to-Pustay-re-FOIA.pdf.
evidence regarding a material fact; thus, this Court should disregard Plaintiffs statement. Fed.
R. Civ. P. 56(c) and (e)(2); L. Civ. R. 56.1.
155
1558

A coalition of 49 groups supported the Oversight Letter to the OIP by pressing the
Government to honor its obligations under FOIA. Footnote 18. (Flores Decl., Ex. DD).
Footnote 18: See Jeff Plungis, National Press Club asks President Obama to fulfill FOIA
promises, National Press Club
(Feb. 25, 2013), http://www.press.org/newsmultimedia/news/national-press-club-asks-president-obama-fulfill-foia-promises.
156
1559

By the end of 2014, it was noted the number of court complaints seeking to force the
government to comply with FOIA has increased, noting that the top defendant was the DOJ.
Footnote 19. (Flores Decl., Ex. EE). Footnote 19: See Hadas Gold, NYT, Vice, Mother Jones
top FOIA suits, Politico (Dec. 23, 2014), http://www.politico.com/blogs/media/2014/12/nyt-vicemother-jones-top-foia-suits-200325.html.
157
1560

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, (emphasis added), adding that in nearly 1 in 3
cases, the Governments initial decisions to withhold or censor records were improper
under the lawbut only when it was challenged. Footnote 20. (Flores Decl., Ex. FF).
Footnote 20: See Ted Bridis, Administration sets record for withholding government files,
The Associated Press (Mar. 18, 2015), http://bigstory.ap.org/article/ab029d7c625149348143
a51ff61175c6/us-sets-new-record-denying-censoring-government-files.
158
1561

In 2015, the esteemed reporter Charlie Savage, who is employed by The New York
Times, noted on social media that some law enforcement agencies, particularly the Federal
Bureau of Investigation, deliberately omitted embarrassing documents from FOIA
responses, and, when caught, acted to further delay the disclosure of documents by many
months. Footnote 21. (Flores Decl., Ex. GG). Footnote 21: See Charlie Savage, Twitter
(Aug. 22, 2015), https://twitter.com/charlie_savage/status/635067129205772292.
159
1562

At the Initial Conference between the Parties on 16 September 2015, Plaintiff pointed
out to the Court that Defendant admitted in the Answer that the DOJ had received a copy of
Plaintiffs e-mail, dated 30 April 2013, attached to which was a copy of the First FOIA
Request. (Flores Decl., Ex. JJ). (Dkt. No. 9 4, 29 and Dkt. No. 12 at 2-3).
Defendant does not dispute this statement.
160
1563

Defense Counsel admitted during a Telephone Conference on 16 October 2015 that
George had a copy of the First FOIA Request all along, and we know from the Red Herring
Response that George was the Assistant U.S. Attorney (AUSA) assigned to prosecute Lt.
Choi. (Flores Decl., Ex. F)
Defendant disputes this statement, but does not dispute that Angela George was an
Assistant United States Attorney at the USAO-DC who was involved in a prosecution of Daniel
Choi and does not dispute that Angela George received an email from Plaintiff dated April 30,
2013. (See Stone Decl. 7; Singh Decl., Ex. F).
Nevertheless, Plaintiffs statement asserts immaterial facts and does not cite to any
admissible evidence regarding a material fact; thus, this Court should disregard Plaintiffs
statement. Fed. R. Civ. P. 56(c) and (e)(2); L. Civ. R. 56.1.
161
1564

The DOJ advised the entire Executive Branch of the federal government against viewing
the U.S. Senates torture report, even though the torture report was a public document.
Footnote 22: See Mike Masnick, DOJ Has Blocked Everyone In The Executive Branch From
Reading
The
Senates
Torture
Report,
Tech
Dirt
(Nov.
11,
2015),
https://www.techdirt.com/articles/20151110/01353532771/doj-has-blocked-everyoneexecutive-branch-reading-senates-torture-report.shtml.
162
1565

Officials with t he DOJ and members of the National Association of Assistant United
States Attorneys have lobbied federal legislators to oppose improved FOIA reform legislation.
Footnote 23: See Nicholas Iovino, Justice Dept. Accused of Sabotaging FOIA, Courthouse
News Service (Dec. 15, 2015), http://www.courthousenews.com/2015/12/15/justice-deptaccused-of- sabotaging-foia.htm.
163
1566
G.
The Government Has Not Claimed Exemptions

The Government has not specifically claimed Exemptions under FOIA for any particular
item or sub-item listed on the First FOIA Request. (Flores Decl., Ex. F, G, H, J, N). (Kelly
Decl.). (Stone Decl.).
following a search for any agency records at the USAO-DC that were responsive to any or all of
the itemized requests in the April 30, 2013 letter, did not locate any responsive records, and is
not withholding records responsive to Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex.
I; Kelly Decl. 5-24).
164
1567

item or sub-item listed on the Second FOIA Request. (Flores Decl., Ex. J).
I; Kelly Decl. 5-24). Plaintiffs purported FOIA request to the Civil Rights Division of the
U.S. Department of Justice dated October 20, 2015 is not before this Court. (See Singh Decl.,
Ex. M; Dkt. No 16 (Amended Complaint)).
165
1568

When the Government produced the Second FOIA Response, the Government did not
specifically claim any Exemptions under FOIA for 1-45 on Plaintiffs Index to the First FOIA
Response. (Dkt. No. 12, Ex. B).
I; Kelly Decl. 5-24). The materials that Defendant voluntarily produced to Plaintiff on
October 13, 2015 were not responsive to Plaintiffs FOIA request. (See Singh Decl., Ex. K).
166
1569

The Government has only specifically claimed an Exemption under FOIA for 46 (the
privacy-encumbered records of Lt. Choi, for which Plaintiff has requested a Vaughn Index, yet to
be produced by the DOJ) on Plaintiffs Index to the First FOIA Response. (Dkt. No. 12, Ex. B).
Plaintiffs statement contains an assertion of immaterial fact and does not cite to any
admissible evidence regarding a material fact; thus, this Court should disregard Plaintiffs
statement. Fed. R. Civ. P. 56(c) and (e)(2); L. Civ. R. 56.1. EOUSA responded to Plaintiffs
April 30, 2013 FOIA request on August 17, 2015, following a search for any agency records at
the USAO-DC that were responsive to any or all of the itemized requests in the April 30, 2013
letter, did not locate any responsive records, and is not withholding records responsive to
Plaintiffs request. (See Stone Decl. 9; Singh Decl., Ex. I; Kelly Decl. 5-24). EOUSA
exercised its discretion to release non-responsive, publicly-available documents that involved,
generally, the Choi prosecution that were located in the files of USAO-DC. (Stone Decl. 6-8;
Kelly Decl. 25-28). Plaintiff has admitted that the production regarding the Choi prosecution
was not responsive to his FOIA request. (See Dkt. No. 12 (Letter from Plaintiff dated Sept. 3,
2015 to the Court) ([T]he documents produced were non-responsive to the FOIA Request.)).
167
1570

entry listed on Plaintiffs Index of References to Records Requested under FOIA Request.
(Flores Decl., Ex. G).
I; Kelly Decl. 5-24). The materials that Defendant voluntarily produced to Plaintiff on
October 13, 2015 were not responsive to Plaintiffs FOIA request. (See Singh Decl., Ex. K).
168
1571
H.
Plaintiffs Activism Campaign

Prior to the commencement of this action, Plaintiff had launched a social media
campaign to challenge the DOJs pattern and practice that systematically refused to answer
the First FOIA Request. See, e.g., Louis Flores, Twitter (Oct. 15, 2013, 4:42 PM
EST),
https://twitter.com/ maslowsneeds/status/390216209636925440 (attaching a link to a
YouTube video, which had been uploaded on Oct. 15, 2013, that explored whether
individuals outside the DOJ had a role in ordering the arrest of Lt. Choi for his activism and
questioned whether the DOJ was targeting for vindictive prosecution activists, who may have
been engaged in pressure politics against the President in order to bring about social change)
; Louis Flores, Twitter (Feb. 25, 2014, 4:24 PM EST), https://twitter.com/
maslowsneeds/status/438424392977375232 (attaching a link to another YouTube video, which
had been uploaded on Dec. 4, 2013, noting that speech critical of government, for example,
political speech, is a freedom guaranteed as a protection in the First Amendment to the U.S.
Constitution, adding that when the DOJ does not honor FOIA requests, this failure acts to
curtail free speech, because the failure denies citizens information about the governments
conduct, consequently preventing citizens from meaningfully forming informed speech, from
meaningfully assembling to discuss the governments conduct, and to petition their government
for a redress of grievances) ; and Louis Flores, Twitter (Sept. 25, 2014, 11:15 AM EST),
https://twitter.com/ maslowsneeds/status/515157736821358592 (noting the Sept. 17, 2014,
protest against Holder).
169
1572
Dated: Brooklyn, New York

February 12, 2016
Respectfully submitted,
ROBERT L. CAPERS
United States Attorney
Eastern District of New York
Attorney for Defendant
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201
By:
TO:
[via CM/ECF and certified first-class mail]

Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
Plaintiff, Pro se
170
s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant United States Attorney
(718) 254-6498
rukhsanah.singh@usdoj.gov

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Case 1:15-cv-02627-JG-RLM Document 27-1 Filed 02/12/16 Page 1 of 170 PageID #: 1403

UNITED STATES DISTRICT COURT

UNITED STATES DEPARTMENT OF

To the extent that Plaintiffs responses concede the substance of Defendants

respective statement of fact, Defendants statements should be deemed undisputed.

3. To the extent that Plaintiffs responsive statements may be offered as affirmative

Response Regarding the Respectively Numbered Paragraphs in

Plaintiffs Requests for Information and FOIA Request

Defendants Undisputed Fact No. 1:

On March 27, 2013, Plaintiff Louis Flores (Plaintiff) sent an email to an

Defendants Undisputed Fact No. 2:

prosecution of Daniel Choi. (Singh Decl., Ex. B).

Plaintiff disputes this statement, by pointing out that:

Plaintiffs responsive statements do not refute the facts in Defendants

statement and do not create a genuine issue as to a material fact.

Defendants Undisputed Fact No. 3:

To the extent that Plaintiffs statements are argumentative, are legal

conclusions or are unsupported by evidence, his assertions must be rejected.

Defendants Undisputed Fact No. 4:

Plaintiff does not contest this statement, except to add:

Defendants Undisputed Fact No. 5:

Defendants Undisputed Fact No. 6:

Plaintiff does not contest this statement.

Defendants Undisputed Fact No. 7:

Defendants Undisputed Fact No. 8:

the limits of the Department of Justices prosecution to minimise

Plaintiffs Statement No. 8.1:

(See Kelly Decl. 5-24).

Plaintiffs Statement No. 8.1(a):

Defendants Response to Plaintiffs Statement No. 8.1(a):

Plaintiffs Statement No. 8.1(a)(i):

In respect of request I.1.A., the DOJ has not provided an accounting, as

Defendants Response to Plaintiffs Statement No. 8.1(a)(i):

Plaintiffs Statement No. 8.1(a)(i)(A):

consultations with IT specialists and an Assistant U.S. Attorney, it was

Plaintiffs statement does not cite to any admissible evidence

regarding a material fact; thus, this Court should disregard Plaintiffs

Plaintiffs Statement No. 8.1(a)(i)(B):

consultations with IT specialists and an Assistant U.S. Attorney, it was

Plaintiffs statement does not cite to any admissible evidence

regarding a material fact; thus, this Court should disregard Plaintiffs

Plaintiffs Statement No. 8.1(i)(C):

consultations with IT specialists and an Assistant U.S. Attorney, it was

(Kelly Decl. 11-16, 18).

statement does not cite to any admissible evidence regarding a material

Plaintiffs Statement No. 8.1(a)(i)(D):

consultations with IT specialists and an Assistant U.S. Attorney, it was

(Kelly Decl. 11-16, 18).

statement does not cite to any admissible evidence regarding a material

Plaintiffs Statement No. 8.1(a)(ii):

In respect of request I.1.B., the DOJ has not provided an accounting or

Defendants Response to Plaintiffs Statement No. 8.1(a)(ii):

Plaintiffs Statement No. 8.1(a)(ii)(A):

consultations with IT specialists and an Assistant U.S. Attorney, it was

Plaintiffs statement does not cite to any admissible evidence

regarding a material fact; thus, this Court should disregard Plaintiffs

Plaintiffs Statement No. 8.1(a)(ii)(B):