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Case 1:15-cv-02627-JG-RLM Document 30 Filed 02/24/16 Page 1 of 6 PageID #: 1682

Louis Flores
34-21 77th Street, No. 406
Jackson Heights, New York 11372
1 (646) 400-1168

24 February 2016


Honorable John Gleeson, United States District Judge,

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.

Dear Hon. U.S. District Court Judge Gleeson and Hon. U.S. Magistrate Judge Mann :

Re :

Motion for Summary Judgement

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

Please accept this letter reply as Plaintiffs Surreply to Defendants Response to Plaintiffs
Cross-Motion for Partial Summary Judgment. Plaintiff draws the Courts attention to all the
many times the Government has made material misrepresentations or has flailingly tried to
explain away its misconduct during proceedings in this Court.




The mere fact that USAO-DC personnel may have been sent or copied on email
from Plaintiff regarding a FOIA request sent to EOUSA does not mean that USAODC was under any independent obligation to follow-up with EOUSA regarding
that request. (Govt Br. at 3.) The obligations about which I wrote included
those of USAO-DC staff to this Court.
Notably, Plaintiff does not appear to contest that EOUSA appropriately earched
the files of USAO-DC for records responsive to his FOIA request. (Govt Br. at 7).
Thats not what I wrote. I have no facts to support any such conclusion, and I
noted that there is no documentation about the search of paper files. Moreover,
it is easy to illustrate the inadequacy of the DOJs search, because the
Declarations do not explain how the Declarants conducted searches of paper
documents and files. (PL Opp. Br. at 28).
Second, an umbrella declaration from DOJ management or senior supervisors is
not required and would impose a burden beyond what is required under Rule 56
and the courts is FOIA cases. (Govt Br. at 8). This is especially rich, given that

Case 1:15-cv-02627-JG-RLM Document 30 Filed 02/24/16 Page 2 of 6 PageID #: 1683

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 2







the Government deliberately fails to comply with FOIA and, therefore, forces
countless FOIA requests to be litigated in Federal Courts. If the Government
invites all this litigation, surely a Court order for an umbrella declaration is not a
burden to an agency that juggles how many FOIA litigations cases.
EOUSA was not required to itemize each and every category and subcategory
of requests in Plaintiffs FOIA request . (Govt Br. at 8). Is the Government
saying here that it is not required to either conduct a complete search for records
or to account for such before this Court ?
Plaintiff argues that the AUSA must have had the USAM, which references
demonstrations and, therefore, must be referred to when prosecuting
activists. (Govt Br. at 9). Yes, that is exactly what I am saying, and the
Government cannot hide behind semantics to skirt its obligations under FOIA.
To cover its tracks on improperly withholding the few relevant sections from the
United States Attorneys Manual, the DOJ improbably claims that because the
USAM is available online, then Plaintiff should have not bothered filing a FOIA
request. (Govt Br. at 9-10). But the DOJ is the agency that knows what is and
what is not the law, and FOIA requires an agency to disclose duly requested
records. See Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997).
The Government disavows its Glomar/No Number, No List treatment of the First
FOIA Request. (Govt Br. at 10). Yet, the Government gives no explanation for its
failure to comply with FOIA, and there is simply no other way to legally describe
the Governments failure to comply with FOIA, unless the Court can stipulate at
this time that the Government is and has been in violation of FOIA.
The Government claims that Government Exhibit 24 and Government Exhibit
25 are not responsive to the First FOIA Request. (Govt Br. at 11-12). However,
the documents clearly prove that they are legal guidance or documents provided
to law enforcement that outline criminal charges or that call for criminal charges
to be brought against activists. If these documents relate to the prosecution of
activists, then the documents are responsive to the First FOIA Request. And
because these documents form the basis of charging documents or of the legal
reasoning for the prosecution of activists, these documents also serve as binding
interpretations of agency law and were subject to disclosure, particularly to the
extent that they may be deemed as judicial records.
The Government denies that a Vaughn Index is required in this case. (Govt Br. at
12). But the Government has no credibility on matters of FOIA, either generally
or in proceedings before this Court, and a purpose of a Vaughn Index is to
confirm the correct application of Exemptions claimed under FOIA. It is DOJs
burden to show that an exemption properly applies. See Brennan Ctr. For Justice
v. DOJ, 697 F. 3d 184, 201-02 (2d Cir. 2012)

Case 1:15-cv-02627-JG-RLM Document 30 Filed 02/24/16 Page 3 of 6 PageID #: 1684

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 3




The Government denies that it has withheld responsive records, adding that the
Government adds, Even if Defendant subsequently produced records responsive
to Plaintiffs FOIA request throughout this litigation, such production would not
give rise to a bad faith claim. (Govt Br. at 12, 16 n.10). Yet, for two years, the
Government never disclosed records or provided an explanation for its failure
prior to the commencement of these proceedings. And then the Government
withheld records from the Red Herring Response that were later produced in the
Second FOIA Response. Plaintiff has identified the likely existence of records
from references to procedures that are likely to create records in 9-65.881-82,
and in perhaps other sections, of the United States Attorneys Manual. (PL Opp.
Br. at 17-18). The Government has refused to produce those records. That
refusal and the prior refusals are material to the Governments pattern and
practise of deliberately withholding records.
The Government has objected to the conduct of discovery, because it now claims
that the conduct of discovery would delay resolution of the issues in this case.
(Govt Br. at 13). The irony in the Governments claim is so supremely rich, given
that the Government has spent years refusing to comply with FOIA, and the
Government forced Plaintiff to litigate the First FOIA Request in order to compel
the Government to comply with FOIA. All along, the DOJ has been the sole cause
of the delay in the resolution of this matter.
The Government claims that the DOJ made no misrepresentation when Defense
Counsel informed Plaintiff that there was no other component of the DOJ with its
own Criminal Division aside from the Criminal Division itself. (Govt Br. at 15).
This is wholly untrue. During the 16 October 2015 Telephone Conference
between the Plaintiff and Defense Counsel, Plaintiff specifically asked :


There is no other component that has a Criminal Division ?


No, thats Its just the Criminal Division.

(Flores Decl., Ex. M). Plaintiff highlights this excerpt from the Telephone
Conference to document for the Court the pattern and practise of misconduct and
misrepresentations made by the Government during proceedings before this
Court. As Plaintiff later determined, there was indeed another DOJ component
with its own Criminal Division, and that was the Civil Rights Division,
necessitating the filing of the Second FOIA Request to close the loop on the
records being sought from the DOJ. (Flores Decl., Ex. I). Defense Counsels
misrepresentation about the Civil Rights Division, and the DOJs pattern and
practise of misconduct, forced Plaintiffs hand in filing the Second FOIA Request,
and at no time has it been Plaintiffs intent to enlarge the scope of the records he
has been seeking or to drag this matter out any longer than necessary.

Case 1:15-cv-02627-JG-RLM Document 30 Filed 02/24/16 Page 4 of 6 PageID #: 1685

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 4




The pattern and practise of the Governments misconduct can be evidenced in its
reply brief. The Government apparently is making the argument that even if the
Civil Rights Division did have records, the Government has no intention to
disclose those records. (Govt Br. at 16). Already, the Government is giving
Plaintiff the treatment in respect of the Second FOIA Request, which the
Government refers to having been allegedly sent to the Civil Right Division,
even though Plaintiff did send the Second FOIA Request, and Plaintiff swore to
this Court that a true copy of the Second FOIA Request was included in Plaintiffs
Declaration. (Flores Decl., Ex. I). The Government is trying to deny the existence
of the Second FOIA Request, presumably so that it can find more ways to, like
with the First FOIA Request, subvert its compliance with FOIA. Is this how FOIA
is supposed to work ?
The Government claims that Even if a pattern and practi[s]e claim were
cognizable in this jurisdiction, Plaintiff has not identified anything more than
delay in the processing of his FOIA request. (Govt Br. at 17). Your Honor, this is
not true. Plaintiffs Rule 52 Cross-Motion is crammed with examples of
misconduct. The Rule 52 Cross-Motion speaks for itself. (Dkt. No. 25.).
Finally, as to the First Amendment claims, it should shock the conscious of this
Court that the Government is asking this Court to reject any access to judicial
records claims that Plaintiff is asserting under the First Amendment. (Govt Br.
at 18). In its determination to not comply with FOIA, should it come as any
surprise that the Government is asking this Court to discard the First
Amendment implications of the Free Speech FOIA Requests ? The only way for
citizens to know what the Government is doing is through a healthy and fullyfunctioning press. The press cannot do its job of informing the public, if the
Government deliberately withholds records from either the press or the public,
or both. As noted in one of the YouTube videos that formed part of my failed
social media campaign to shame the DOJ into answering the First FOIA Request
prior to the commencement of these proceedings, I said, The very idea of a
republic implies rights conveyed to citizens to meet and consult with one another
and to petition their government if they so choose. How can citizens exercise
their rights to free speech, to assembly, and to petition, when the government
restricts, delays, or prevents the sharing of information necessary for citizen
activities ?1 In the instant case, I have been able to publish my first long-form
article based on the few responsive records produced in the Second FOIA
Response. (Flores Decl., Ex. G). As the Court will surely agree, the Government

See astoria25, Free Speech Implications of DOJ Denying FOIA Request on Lt. Daniel Choi,
YouTube (Dec. 4, 2013),

Case 1:15-cv-02627-JG-RLM Document 30 Filed 02/24/16 Page 5 of 6 PageID #: 1686

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 5

has not provided enough information for citizens to know how activists can face
criminal prosecution for activism that is only meant to fight for the spread of
human rights, for example. See Louis Flores, Federal guidelines for the
prosecution of activists appear to reconstruct a legal framework lost under the
2016), (Flores Decl., Ex. N). What is more, Plaintiff can assert that, based
on the limited production of records, the DOJ is trying to self-promulgate itself
permission to prosecute activists based on their ideology under the old Smith
Act, 18 U.S.C. 2385, in contravention to rulings made by the U.S. Supreme Court
against such authority. See e.g., Yates v. United States, 354 U.S. 298 (1957).
Because the Governments conduct in this regard could never withstand judicial
scrutiny, the Government has a strong motivation to keep secret its guidelines for
the prosecution of activists, a lack of transparency that this Court must reject.

The Government has manipulated certain rules in an attempt to both minimise its
misconduct and gain a legal advantage before this Court during this dispositive motion
process, but the Government ignores the spirit of FOIA. Congress enacted FOIA to ensure
an informed citizenry, vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the governed. NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978) (NLRB I). Moreover, the Government ignores
the intent of FOIA, which is to facilitate the disclosure of Government records to the public.
The impact of what amounts to the Governments rules lawyering is to deliberately violate
FOIA, an outcome that this Court must not be allowed to stand.

Respectfully submitted,

cc :

Louis Flores
Pro se Plaintiff
[By e-mail only to :]

Rukhsanah L. Singh, Assistant U.S. Attorney

U.S. Attorneys Office - Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
Attorney for Defendant

Case 1:15-cv-02627-JG-RLM Document 30 Filed 02/24/16 Page 6 of 6 PageID #: 1687



15-CV-2627 (JG)(RLM)





I, LOUIS FLORES, declare under penalty of perjury that I have served a copy of the attached









c/o United States Attorneys Office, Eastern District of New York, 271 Cadman Plaza East,
7th Floor, Brooklyn, New York 11201 by ELECTRONIC MAIL DELIVERY to :

Dated : Jackson Heights, New York

February 24, 2015

Louis Flores
34-21 77th Street, Apt. 406
Jackson Heights, New York 11372
Phone : (646) 400-1168