FOIA lawsuit seeking DOJ records about prosecution of activists ends in failed appeal

By Progress New York Staff

A lawsuit seeking the release of U.S. Department of Justice records about the prosecution of activists has ended in an adverse ruling by the U.S. Court of Appeals for the Second Circuit. The ruling, made by Justices Barrington Parker, Peter Hall, and Raymond Lohier, Jr., found that the Government owed the public no obligation to disclose records about the prosecution of activists, including its working law. The records were being sought under the Freedom of Information Act, or FOIA.

The Appellate Court ruling follows a Report and Recommendation issued by Chief Magistrate Judge Roanne Mann of the U.S. District Court for New York’s eastern district, in which the lower court resolved every controversy and dismissed every dispute of fact in favour of the non-moving party, in violation of civil procedure. Following the issuance of the Report and Recommendation, Chief Magistrate Judge Mann was described as having poured “water on a drowning FOIA.”

Neither the Appellate Court nor the lower court responded to legal arguments that the Government owed an obligation under the First Amendment to the U.S. Constitution to release the sought-after records. By refusing to answer fully produce the records that were shown to exist, or that were highly likely to exist, the Government was acting to restrict the speech of the press and of the citiznery. Legal arguments were made that the ability of the media and the public to speak ; to meaningfully assemble with other journalists, citizens, or activists ; and to discuss any petition to the government for a redress of grievances were being unconstitutionally restricted by the Government’s pattern and practice of violating FOIA. These restrictions constituted a prior restraint and content-based restriction on, and the Government viewpoint discrimination against, the to speak about information of the Government’s conduct, which was of public concern, according to one legal filing made in the lower court.

The U.S. Department of Justice, the Government Agency in possession and control over the records being sought, was represented by Assistant U.S. Attorney Rukhsanah Singh. She and another Government attorney were the subjects of ethics complaints over misconduct that was alleged to have taken place during the lower court proceedings.

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