U.S. Department of Justice

United States Attorney Eastern District of New York

271 Cadman Plaza East-7th Floor Brooklyn, New York 11201 September 11, 2015 BY ECF Honorable Roanne L. Mann United States Magistrate Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: Louis Flores v. United States Department of Justice No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Dear Judge Mann:

This letter is respectfully submitted on behalf of Defendant United States Department of Justice (“DOJ”) in response to Plaintiff’s letter dated September 3, 2015. DOJ respectfully requests that the Court deny Plaintiff’s requests to compel discovery and for leave to amend the pleadings.

This is an action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, involving Plaintiff’s April 30, 2013 request under the FOIA for certain information and records pertaining to the nature and purpose of the U.S. Attorney’s Office’s (“USAO”) prosecution of Daniel Choi. Under the FOIA, the Court’s authority is limited to enjoin an agency from improperly withholding agency records from a person who has made a proper written request for the records. 5 U.S.C. § 552(a)(4)(B); see also 5 U.S.C. § 552(a)(3)(A).

When Plaintiff filed his Complaint, the Executive Office for United States Attorneys

(“EOUSA”) had not yet responded to Plaintiff’s FOIA request.1 However, on August 17, 2015, EOUSA responded to Plaintiff that no responsive records had been located upon searches conducted in the Office of the USAO for the District of Columbia (“USAO-DC”), the USAO that prosecuted Daniel Choi. EOUSA also made a discretionary release of publicly available documents that involved, generally, the prosecution of Choi, which were located in the files of the USAO-DC.

1 EOUSA is a subcomponent of DOJ and is responsible for responding to FOIA requests

on behalf of the USAOs and EOUSA. A FOIA request to other components of DOJ must be made to the FOIA office of that component. See 28 C.F.R. § 16.3; see also 5 U.S.C. § 522(a)(3) (A FOIA request to an agency must be “in accordance with published rules stating the time, place, fees (if any) and procedures to be followed.”).

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Honorable Roanne L. Mann September 11, 2015 Page 2

Although Plaintiff’s Complaint challenges the lack of the response to his FOIA request, Plaintiff’s September 3, 2015 letter now indicates that he also seeks to challenge the August 17, 2015 response. Plaintiff seeks the Court to direct discovery and permit him to file an amended complaint. Plaintiff also appears to challenge the FOIA response as being “non-responsive,” incomplete, done in a bad faith as “red herring,”2 and the result of an inadequate search for responsive records.

As an initial matter, discovery is typically unavailable in FOIA actions, which ordinarily

are resolved by way of summary judgment motions. See, e.g., Carney v. United States Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (recognizing district court may decline discovery and enter summary judgment); Lane v. Dep’t of the Interior, 523 F.3d 1128, 1134 (9th Cir. 2008); Miscavige v. Internal Revenue Serv., 2 F.3d 366, 369 (11th Cir. 1993); Wheeler v. C.I.A., 271 F. Supp. 2d 132, 139 (D.D.C. 2003) (“Discovery is generally unavailable in FOIA actions.”); Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 63 (D.C. 2001) (“[D]iscovery is not typically a part of FOIA and Privacy Act cases[.]”). As one district court has explained: “In a FOIA case, a court can only determine the need for discovery after the defending agency files its dispositive motion and supporting affidavits. Prior to that point, a court cannot properly evaluate whether a factual issue exists sufficient to warrant discovery.” Rivera v. Fed. Bureau of Investigations, No. 12-4174, 2013 WL 6528808, at *1-*2 (D.N.J. Dec. 12, 2013). There is no reason to depart from this standard here.

DOJ plans to file a summary judgment motion in this action. DOJ’s anticipated summary

judgment motion will be supported by one or more declarations from responsible agency officials demonstrating that it conducted a reasonable search and made an appropriate discretionary release of documents. See Carney, 19 F.3d at 812 (finding defendant agency must show that it conducted an adequate search for responsive records and that any responsive documents that were not released were properly withheld under a FOIA exemption). Although Plaintiff states that “discovery is appropriate when an agency has not undertaken an adequate search for records[,]” (Pltff’s letter at 2), such a showing cannot be made absent the opportunity for DOJ to set forth how the search was conducted through its summary judgment motion. See also Rivera, 2013 WL 6528808 at *1-*2. In his opposition to DOJ’s motion, Plaintiff will have the opportunity (and the burden) to demonstrate that the searches were inadequate or not in good faith. See Carney, 19 F.3d at 812. Accordingly, it is respectfully requested that the Court deny

2 Contrary to Plaintiff’s statements, the undersigned never said to Plaintiff that that “the

burden of locating any documents missing from the FOIA Response would fall on Plaintiff[.]” (Pltff’s letter at 2). Rather, the undersigned stated that the documents included in the discretionary release were available on PACER and the full set of documents available on PACER was not part of the discretionary release because not all of those documents were located in USAO-DC’s files and not all of those documents relate specifically to Daniel Choi, who was only one defendant in a multi-defendant case. Further, the undersigned sought clarification as to which portions of the non-responsive discretionary release that Plaintiff felt were missing and offered to provide, as a courtesy, the two documents Plaintiff identified. However, Plaintiff declined the offer.

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Honorable Roanne L. Mann September 11, 2015 Page 3 Plaintiff’s application to “compel discovery.”3

Furthermore, Plaintiff’s assertions regarding the discretionary release provided by the

EOUSA to Plaintiff’s FOIA request do not justify a departure from the normal course in this action. First, because Plaintiff’s FOIA request itemized four particular categories of information and documents that he sought in connection with the Choi prosecution, documents generally relating to the Choi prosecution would not have been responsive to Plaintiff’s request. Whether to release such documents was within the discretion of EOUSA, and the agency should not be penalized for attempting to provide documents that related to the general subject matter of Plaintiff’s FOIA request in the spirit of the FOIA. See Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 23 (D.C. 1998) (“Agencies are generally free to make discretionary disclosures of information . . . .” (footnote omitted)); Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 712 n.34 (D.C. Cir. 1977) (“The FOIA should not be construed so as to put the federal bureaucracy in a defensive or hostile position with respect to the Act’s spirit of open government and liberal disclosures of information.”); see also Attorney General, Memorandum for Heads of Executive Departments and Agencies, “The Freedom of Information Act (“FOIA”)”, at 1 (“I strongly encourage agencies to make discretionary disclosures of information.”).4 Second, EOUSA collected only those documents that related specifically to Choi. Third, the EOUSA properly withheld from the discretionary release any documents involving Choi that were not public pursuant to the Privacy Act, 5 U.S.C. § 552a. Plaintiff’s accusations of bad faith in connection with EOUSA’s discretionary release fail as a matter of fact and law. See Greenberg, 10 F. Supp. 2d at 23; Nationwide Bldg. Maintenance, 559 F.2d at 712 n.34.

In addition, DOJ respectfully requests that Plaintiff’s informal request to amend the

Complaint be denied. To the extent that Plaintiff wants to amend the Complaint to add allegations concerning events that have occurred since the Complaint was filed (i.e., DOJ’s response to his FOIA request), Plaintiff would need to seek leave to supplement the Complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. Such supplementation would be an unnecessary formality in this case because DOJ’s motion will address the appropriateness and adequacy of the response to Plaintiff’s FOIA request. To the extent that Plaintiff seeks to amend his Complaint to include allegations of bad faith and misrepresentation, amendment would be futile because such allegations would lack merit. Plaintiff’s proposed claims seeking the appointment of a monitor or for sanctions, or amendments to address defenses asserted by DOJ, would also be futile. See, e.g., O’Meara v. I.R.S., 142 F.3d 440, 1998 WL 123984, at *1 (7th Cir. Mar. 17, 1998) (“FOIA . . . does not authorize sanctions as a remedy for failure to disclose documents.”); Brown v. F.B.I., 873 F. Supp. 2d 388, 408 (D.C. 2012) (denying request for sanctions where the court could find “no reason for such an extreme punishment without substantial evidence that defendant frustrated judicial proceedings”).

3 Contrary to Plaintiff’s statement that “[i]t is Defendant’s intention to request discovery

in this case[,]” DOJ has never stated that it would seek discovery in this case. (See Pltff’s letter at 2).

4 Available at http://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf.

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Accordingly, DOJ respectfully requests that the Court deny Plaintiff’s application to compel discovery and for leave to amend his Complaint. DOJ proposes the following briefing schedule for its motion for summary judgment:

• By September 25, 2015, DOJ file and serve its motion for summary judgment; • By October 23, 2015, Plaintiff file and serve opposition and any cross-motion;

and • By November 11, 2015, DOJ file and serve a reply and opposition to any cross-

motion. DOJ is prepared to discuss these issues with the Court on September 16, 2015. Thank

you for Your Honor’s attention to this matter.

Respectfully submitted,

KELLY T. CURRIE Acting United States Attorney

By: s/Rukhsanah L. Singh

RUKHSANAH L. SINGH Assistant U.S. Attorney (718) 254-6498 rukhsanah.singh@usdoj.gov

cc: [via email and first-class certified mail]

Louis Flores 34-21 77th Street, Apt. #406 Jackson Heights, New York 11372 louisflores@louisflores.com Pro se Plaintiff

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