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Case 1:15-cv-02627-JG-RLM Document 20-3 Filed 11/23/15 Page 1 of 13 PageID #: 264

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,

DEFENDANTS STATEMENT OF
UNDISPUTED MATERIAL FACTS
PURSUANT TO LOCAL CIVIL
RULE 56.1

Defendant.

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), by its attorney, Robert L. Capers, United States Attorney for the
Eastern District of New York, Rukhsanah L. Singh, Assistant United States Attorney, of counsel,
sets forth this statement of material facts as to which there is no genuine issue to be tried, with
each fact individually numbered below as follows:
A.

Plaintiffs Requests for Information and FOIA Request


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).
2.

In the March 27, 2013 email, Plaintiff posed three questions regarding the

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


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3.

The USAO-DC is the Office that handled the prosecution of Daniel Choi.

(Declaration of Princina Stone dated September 30, 205 (Stone Decl.) 7).
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).
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).
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).
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).
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).
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).
10.

In the April 30, 2013 letter, Plaintiff requested four categories of records and

information. (Singh Decl., Ex. A at pp. 3-4).

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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).
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).


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).
13.

A log at EOUSA indicated that it received a FOIA request from Plaintiff. (Stone

Decl. 5).

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14.

A search of EOUSAs FOIA files did not locate a copy of Plaintiffs April 30,

2013 FOIA request. (Stone Decl. 5).


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).
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).
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).
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).
19.
C.

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

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).
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).

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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).
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).
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).
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).
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).
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).
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).
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).

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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).
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).
32.

Ms. Kelly then contacted another IT Specialist in the AI group. (Kelly Decl.

33.

Ms. Kelly explained to the AI IT Specialist the type of information Plaintiff

13).

sought and asked if a search of the Legal Information Network System (LIONS) could be
performed. (Kelly Decl. 13).
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).
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).
36.

Nevertheless, the AI IT Specialist conduct a search using the term activists in

LIONS, which produced no results. (Kelly Decl. 15).


37.

Ms. Kelly next contacted the AUSA who was assigned to the Daniel Choi case.

(Kelly Decl. 16).

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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).
39.

The AUSA also pointed out that USAO-DC does not specifically target anyone,

or anything, for prosecution. (Kelly Decl. 17).


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).
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).
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).
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).
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).

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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).


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).
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).
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).
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).
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).

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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).
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).
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


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).
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).
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).
57.

Ms. Kelly electronically scanned the records into a database system for review by

EOUSA staff. (Kelly Decl. 28).

Defendant would be happy to provide a copy of the docket sheet in the Choi
prosecution, at the Courts request.
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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).
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).
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).
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).
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).
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).

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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).
65.

EOUSA did not charge Plaintiff any fees in connection with the FOIA response.

(Singh Decl., Ex. I).


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).
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).
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).
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).
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).
71.

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

72.

On September 23, 2015, Plaintiff filed an Amended Complaint for Injunctive

Relief. (Dkt. No. 15).

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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).
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).
75.

Plaintiff did not amend the causes of action asserted in the Amended Complaint.

(See Dkt. No. 15, 62-68).


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).
77.

On October 8, 2015, Defendant filed an Answer to Plaintiffs Amended

Complaint. (Dkt. No. 17).


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).
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).
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).

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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).
82.

On October 26, 2015, Plaintiff sent Defendant an 11-page letter, seeking

additional information and raising various questions. (Singh Decl., Ex. M).
83.

On November 3, 2015, Defendant responded to Plaintiffs October 26, 2015

letter. (Singh Decl., Ex. N).

Dated: Brooklyn, New York


November 23, 2015

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

13

s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant United States Attorney
(718) 254-6498
rukhsanah.singh@usdoj.gov