Lawsuit KingCast Mortgage Movies v. DOJ in FOIA 5 USC §552(a)(4)(A)(ii) Press Exemption
http://www.youtube.com/watch?v=RBlPnZhhUKghttp://mortgagemovies.blogspot.com/2012/05/kingcastmortgage-movies-to-sue-us-doj.htmlThe DOJ Attorney Janice Galli McLeod arbitrarily and capriciously denied my free press fee exemption to help cover up U.S. Trustee Lawrence Sumski's failures of Due Diligence on Bankruptcy B10 Proofs of claim.
Content
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CHRISTOPHER KING, JD. A/K/A KINGCAST-MORTGAGE MOVIES V. U.S. DEPARTMENT OF JUSTICE ) ) ) CASE NO.__________________ JUDGE______________________
) DRAFT – ATTORNEY MCLEOD MAY CONSIDER THIS A MOTION FOR RECONSIDERATION
COMPLAINT AND ADMINISTRATIVE APPEAL
STATEMENT OF CASE This is an Action brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), for injunctive and other appropriate relief, seeking the release of agency records from the NH U.S. Trustee requested by Plaintiff on March, 2011. This lawsuit challenges the failure of the Trustee to release documents requested under the journalist no fee FOIA requirements. JURISDICTION This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(A)(vii), 5 U.S.C. § 552(a)(4)(B), and 5 U.S.C. § 552(a)(6)(C)(i) (2012). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (2012). Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) (2012). THE PARTIES 1. Plaintiff Christopher King, J.D. (hereinafter “KingCast”) is a New-England based African-American journalist as defined by U.S. Magistrate Landya B. McCafferty, focusing on areas of corporate and government malfeasance and mortgage foreclosure fraud. Since December, 2010 he has regularly published his “Mortgage Movies” approximately seventynine (79) times on YouTube that have approximately 53,162 views, with the option of public comment and forum. 2. Defendant Department of Justice (“hereinafter “DOJ”) is the governmental entity charged with the fair and just application of the Freedom of Information Act (“FOIA), most specifically FOIA/552(a)(4)(A)(ii) in this instance governing the no-fee provisions of The Act. THE FACTS 3. The U.S. Department of Justice, by and through Attorney Janice Galli McLeod, on 16 May 2012 issued an arbitrary and capricious determination that Plaintiff was not a journalist within the meaning of FOIA/552(a)(4)(A)(ii), finding that the materials provided are largely “commentary.” In so doing Attorney McLeod willfully ignored every issue identified below in paras. 2 through 15, inclusive. See Plaintiff's Appeal and the 16 May letter at Exhibit 1.
1
4. There is no "commentary" exception involved in the language of 552(a)(4)(A)(ii) of title 5 of the United States Code as seen below. Nor is there any such restrictive language included in the case law of the forum state that governs these proceedings because the Federal Scheme may not afford less Constitutional protections than the particular State. Relevant excerpts are also seen below. 5. Prior to matriculation from Case Western Reserve School of Law Plaintiff earned a Bachelor's Degree in Communications with an emphasis on news writing and studies in 600 level Rhetoric courses. 6. In fall of 2010 NH U.S. District Magistrate Judge Landya B. McCafferty made an express finding of fact that "Plaintiff is an African-American journalist" in Case No. 2010-CV501. 7. As to prior publication history, Plaintiff has edited a large statewide weekly newspaper, the Ohio Call & Post. 8. Plaintiff has written for the Indianapolis Star, note that the issue involved in that 1990 feature involved illegal wireless phone surveillance, the very same issue currently implicated in the FOIA lawsuit of Electronic Information Privacy Information Center (EPIC) who is being copied on this journal entry. Plaintiff's Lexis inquiry yields EPIC v. FBI, DC Dist. 2012-CV-667, which also denied media status. That is how the government operates when it wants to hide something but it is illegal. 9. Plaintiff has co-hosted a radio show in Boston, Massachusetts.
10. Plaintiff was recently subpoenaed as a journalist (Motion to Quash granted) by the Boston Herald as noted by the Parties in Joanna Marinova v. Boston Herald, Suffolk Superior 2010-CV-1316. The Herald's Attorney even stated "nice blog." He also holds a Mayoral Commendation from Nashua Mayor Bernard Street for increasing public knowledge through the use of the First Amendment. 11. Plaintiff has been published in local media, include WBZ-TV and Revere Journal. 12. Plaintiff was chosen to co-chair a forum at New England News and Press Association's Annual Convention and Trade Show on the subject of contemporary journalism. 13. Plaintiff has posted actual courtroom footage and dozens, if not hundreds of emerging legal cases in his online "Mortgage Movies" journal along with legal analysis and the "commentary" to which Attorney McLeod alluded.
2
14. Plaintiff has approximately seventy-nine (79) Mortgage Movies videos that have approximately 53,162 views, also with the option of public comment. Some related videos on this very matter noting that Trustee Lawrence Susmki called Plaintiff "Debtor's Internet co-hort" while Plaintiff stood behind him in open court have drawn 2,679 views not counting the video of this Complaint warning that will be posted today, 20 May 2012. 15. The commentary to which Attorney Janice Galli McLeod alluded is commentary from a former Assistant State Attorney who has managed a Title Company and with managerial zoning experience which is directly related experience in these matters. 16. The NH Court has ruled in favor with a similar Party who provides online commentary and analysis yet Attorney McLeod failed to address that portion of Plaintiff's appeal. 17. To analyse the specific link Plaintiff forwarded that was downrated for “commentary” yields the followingresult: http://mortgagemovies.blogspot.com/2011/08/kingcast-downgrages-nh-senatorkelly.html There is a published letter from U.S.Senator Menendez to FED Chairman Bernanke. There are two videos documenting an attempt to interview Phelan Hallinan & Schmieg lawyers on the issue of standing and robo-signing, including footage of the police being called and a veteran office asking them "what the fucking problem is?" There is a video of a visit to the Washington, DC Office of Senator Kelly Ayotte noting her failure on the mortgage-related FRM Ponzi scam and asking where she stands on the CFPB, which is interesting because Plaintiff worked with Richard Cordray at the Ohio Attorney General's Office. There is a request to the Senator's office for a copy of any and all consumer/constituent complaints filed against Phelan Hallinan & Schmieg since 2005 that has been ignored now for nine (9) months. 18. Given that backdrop it is difficult -- actually impossible -- to comprehend how Attorney Galli McLeod could not possibly see that this is activity consonant with that of responsible journalism within the purview of the Law. That is why she disingenuously avoided any substantive analysis of the journal entry and completely failed to address the video content. That is what journalists do, they approach statespeople and ask questions. All of this is so simple. The journal entry is attached (Exhibit 2). 19. The NH Supreme Court case of Mortgage Specialists v. Implode-Explode clarified this issue with alarming alacrity even though Attorney McLeod arbitrarily and capriciously ignored this information:
3
Implode operates a website, www.ml-implode.com, that ranks various businesses in the mortgage industry on a ranking device that it calls “The Mortgage Lender Implode-O-Meter.” On its website, Implode identifies allegedly “at risk” companies and classifies them as either “Imploded Lenders” or “Ailing/Watch List Lenders.” The website allows visitors who register on the site and create usernames to post publicly viewable comments about lenders.
That is thematically identical to what Plaintiff does, as he has operated a general news journal for seven (7) years and an industry-specific journal for the past eighteen (18) months. It has 32,000 page views (and of course a similar number of movie views) so Plaintiff is a journalist in and of his own accord irrespective of whether major press publishes his material. The whole point is that as a qualified professional Plaintiff has HIS OWN LEGITIMATE MEDIA whether or not the DOJ approves of it. In point of fact it is particularly important that this Court protect journalists who criticize the government because that is the entire point of the Fourth Estate in the first place. The NH Supreme Court held: Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures. 20. That foregoing Opinion providing a full measure of Reporter’s privilege to ImplodeExplode is directly at odds with the 16 May, 2012 letter from Attorney McLeod, rendering such letter to be the product of arbitrary and capricious decision-making. As Plaintiff has previously stated online: Outstanding FOIA request: For U.S. Bankruptcy Trustee Larry Sumski to determine if or when his office has EVER challenged a proof of claim in the manner that many responsible Trustees are so doing. I doubt it because he is too busy calling me an "Internet cohort, watch the movie, which also exposes foreclosure mill attorney Thomas P. Dore, whose notaries are taking the Fifth (and possibly drinking fifths) like there's no tomorrow. I am correct in light of s849, the Open Government Act of 2007 and again in New Hampshire given Mortgage Specialists v. Implode Explode. http://www.blogger.com/postedit.g?blogID=8170726751633271129&postID=1550517761881212387
4
552(a)(4)(A)(ii) of title 5, United States Code, is amended by adding at the end the following: `In making a determination of a representative of the news media under subclause (II), an agency may not deny that status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester. Prior publication history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no prior publication history or current affiliation, the agency shall consider the requestor's stated intent at the time the request is made to distribute information to a reasonably broad audience.' In this clause, the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of newsmedia entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. 21. As such, Plaintiff is no less a journalist than his Internationally-known cousin, Washington Post/ESPN's Michael Wilbon. He may be a different sort of journalist but both men are journalists and both men would and should be entitled to the benefits of the practice. To decide otherwise is to violate the U.S. Code and the First Amendment to the United States Constitution, arbitrary and capricious opinions of the Department of Justice notwithstanding. Put simply, Plaintiff is entitled to the requested documents at no cost. PRAYER FOR RELIEF 1. That the Defendant provide the sought information at no cost to Plaintiff. 2. That Defendant reimburse Plaintiff for the costs and fees associated with this Complaint. 3. Further, the Declaratory Judgment that Plaintiff is a covered journalist in and of his own right and with respect to being a freelance journalist under the ACT. 4. Injunctive Relief to issue accordingly.
5
EXHIBIT 1
6
7
CHRISTOPHER KING, JD. http://KingCast.net http://MortgageMovies.blogspot.com [email protected] 617.543.8085/m 617.507.8031/f 13 August 2011 Re: VIA OVERNIGHT U.S. MAIL
FOIA Appeal on FOIA Request and Unchecked presence of mortgage fraud in Ingress foreclosure case, Hillsborough South Case No. 2010-CV-571:
Dear reviewing counsel: Certain of your DOJ staff are wasting taxpayer monies and abusing the public trust by failing to provide a press exemption relative to requested FOIA information on mortgage fraud. As 60 Minutes has noted, this is an issue that affects every American in one way or another, yet Attorney Larry Wahlquist conducted no analysis whatsoever of my position as a journalist irrespective of the facts that: 1.NH U.S. District Court Magistrate Judge Landya B. McCafferty expressly ruled “KingCast is an African-American journalist…..” 2. NH expressly ruled (in a mortgage website case no less) that website owners in New Hampshire are journalists when they provide news and information that the public may find useful. As you may see on the following page, my journal pages this year have approximately 160,000 hits. Two days ago I posted a video of Senator Kelly Ayotte discussing her failures as NH AG on the FRM Mortgage Ponzi scheme and ignoring my notice of Felony Wire Fraud and it has already 988 hits. Please pardon the colorful language used to describe Senator Ayotte: Kelly Ayotte Town Meeting: "She's full of shit...." (and will gut the CFPA) http://www.youtube.com/watch?v=jLS0N_hH-cc 3. My YouTube page has 244 subscribers, 190,000 upload views and 11,000 channel views. I dare say that is indicative of reasonable consumer interest given that I do not publicly advertise or employ any hit-boosting software. 4. I am published in Boston area newspapers and television. 5. I am published in respected mortgage journals on the World Wide Web. 6. I was a guest speaker at the 2011 New England News and Press Association annual trade show and conference. 7. The denial of media status is arbitrary and capricious as you may readily determine by the correspondence between Attorney Wahlquist and me. In point of fact, at the height – or nadir – of his insouciance he didn’t even respond to the letter written below. Twenty years ago my first job as a licensed attorney was to make the transition from law clerk to Assistant State Attorney, because I believed in our government and in our system of laws. By his (in)actions in this matter it is patently evident that Attorney Wahlquist is disrespecting that system of laws because he doesn’t like what I am exposing. However, to my knowledge the Statute doesn’t read “FOIA exemption for journalists who don’t ask troubling questions,” it simply reads “journalists.”
8
Please review this matter and remand it to Attorney Wahlquist with an explicit instruction advising him to forward the requested materials. I thank you in advance for your time, effort and consideration of the matters presented herein.
http://www.youtube.com/watch?v=Qai4X9bUSNI (video embedded at Attachment 1) http://www.youtube.com/watch?v=1_lwjNvqdcI (video embedded at Attachment 2)
9
Re:
Dereliction of Duty by U.S. Trustee Lawrence Sumski and Counsel Larry Wahlquist in Leslie Crepeau Bankruptcy Case:
http://www.youtube.com/watch?v=y5mtCjSioKE (video embedded at Attachment 3) (Overnighted via FEDEX for 5 August 2011 delivery) Dear Attorney Wahlquist: First of all regarding your footnote about not receiving my 21 March, 2011 letter all I can say is perhaps you need to have a word with your Manchester U.S. Trustee client because I am clearly seen passing that letter to the clerk in this video with the instruction to forward it to counsel… meaning you. They forwarded the prior request so they know the routine. This is simply further indicia of Bad Faith from that office: http://www.youtube.com/watch?v=y5mtCjSioKE
I am in receipt of your FEDEX letter dated 1 August 2011 and in return provide you with this overnight letter noting that your perfunctory (read: nonexistent) analysis of my status as a bona fide member of the media is incorrect and will be appealed should I not hear from you on or before 9 August, 2011. To wit: You cited a case in Bad Faith and cut off the rest of the paragraph so I have to call you on it right here and right now Counselor. You had better watch for an Ethics Complaint against you if you persist in this sort of deceit: From the Government’s own FOIA guide first the part you included in your letter to me, then in red the part you omitted: See also Brown v. U.S. Patent & Trademark Office, 445 F. Supp. 2d 1347, 1356-57 (M.D. Fla. 2006) (finding that plaintiff has not shown "that he is a freelance journalist with a 'solid basis for expecting publication'" (quoting agency regulation). But see Hosp. & Physician Publ'g, 1999 WL 33582100, at *3, *5 (ordering agency to apply news media status to plaintiff even though plaintiff had not gathered news in past but expressed intention to do so in future; noting that requester represented that information received "will eventually be
10
disseminated to the news media," that it will "not receive any income from its news gathering activities," and that "any windfall to the commercial aspect of its business will be negligible") Have you actually read Brown? I have. Well the Appellate case you cited contains no vital information so I pulled the original case from Lexis, and it informs this case: First of all Brown didn’t even identify himself as media representative at the early stages, as I have. Further, he was “profiled” but did not actually have any hosted stories or material as I do, not to mention the fact that my journal is replete with information noting that I am part of two different feature length documentary films on Mortgage Fraud. Frankly I think Brown got the proverbial shaft because he was an unpopular Plaintiff and I am sending him a copy of this letter to tell him so. ************ Nonetheless, you probably shouldn’t forget the fact that my requests are all based in New Hampshire, in which case the Home State has already ruled that website owners such as myself are indeed full-fledged journalists who may avail themselves of the privileges and protections appurtenant. See Mortgage Specialists v. Implode Explode Heavy Industries (NH Supreme Court Rockingham No. 2009-262 May 6, 2010). The record supports the following facts. Mortgage Specialists is a mortgage lender. Implode operates a website, www.ml-implode.com, that ranks various businesses in the mortgage industry on a ranking device that it calls “The Mortgage Lender Implode-O-Meter.” On its website, Implode identifies allegedly “at risk” companies and classifies them as either “Imploded Lenders” or “Ailing/Watch List Lenders. Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (quotations and citations omitted). The fact that Implode operates a website makes it no less a member of the press. In light of the trial court’s implicit findings, we conclude that Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege. The function and reality of Implode Explode and Mortgage Movies – featuring actual NH, California, NJ court action are identical with respect to this analysis. Just because you do not care for, or are ignorant of the law in the Forum State that the Feds must apply does not give you the right to deny my media payment exemption. Moreover you ignored the following indisputable fact of which I already announced: In KingCast v. Kelly Ayotte, NH GOP and Nashua PD, NH Dist 2010-CV-501, Magistrate Judge Landya B. McCafferty expressly found that “Plaintiff is an African-American Journalist.”
11
As to my function, it is indisputable that by and through all of my websites, but particularly through Mortgage Movies Journal, as a former LE Attorney and licensed title insurance producer I regularly (almost daily) publish periodicals read by hundreds every day and “provide information as primarily benefitting the general public,” per National Security Archive v. Dep't of Defense, 880 F.2d 1381 (D.C. Cir. 1989) as cited in Electronic Privacy Information Center v. D.O.D., Civil Action No. 02-1233 (2003). I have email mailing lists, online registered followers at Chris King’s First Amendment Page and Mortgage Movies Journal and many many more who follow informally. Nor are my efforts of a commercial interest as contemplated by the government’s own FOIA Fee Waiver guide: http://www.justice.gov/oip/foia_guide09/fee-waivers.pdf In sum: Congress, borrowing from both the Court of Appeals for the District of Columbia Circuit's opinion in National Security Archive v. DOD and the OMB Fee Guidelines has now statutorily defined a "representative of the news media." This subcategory includes "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." Additionally, Congress incorporated into the statutory definition the OMB Fee Guidelines' definition of "news" as "information that is about current events or that would be of current interest to the public." The new statutory definition also addresses the potential growth of alternative news media entities by providing a non-exclusive list of media entities. Finally, the statutory definition specifies that freelance journalists shall be considered representatives of the news media if they "can demonstrate a solid basis for expecting publication through [a news media] entity, whether or not the journalist is actually employed by the entity."
12
That’s all I need to say to you at this point. Other major press has run my video and hosted my pictures, including WBZ TV here in Boston and many others. As you already know, New England News and Press brought me in as a guest speaker for the 2011 NENPA Annual Trade Show Convention so your denial is not going to be well-taken on appeal. I will try to save you the embarrassment in the a priori sense:
As I am a gentleman, and as I want the record clear, I am going to give you one last chance to get it right. Now then as to the substantive clarifications you are correct, I seek: 1. Phone records fro the Manchester office, 1 Jan to 15 March, 2011. 2. Case numbers of any mortgage-related prosecutions the Manchester office has been involved in since 1 January, 2003. 3. Complaints filed in the Manchester, Boston and Worcester offices as well as the Executive Office, by any mortgagor (or representative) regarding mortgage and/or foreclosure issues since 1 Jan 2006 and 4. The no. of records filed with Courts. Thank you for your continued attention to this matter as it is very serious: You may be aware that NJ U.S. Senator Robert Menendez, unlike NH Senator Kelly Ayotte – is taking proactive steps in a similar manner:
13
EXHIBIT 2 http://mortgagemovies.blogspot.com/2011/08/kingcast-downgrages-nh-senatorkelly.html MONDAY, AUGUST 1, 2011 KingCast downgrades NH Senator Kelly Ayotte; salutes NJ Senator Robert Menendez for demanding proof of claims and show cause on foreclosure mill and robo-signature bad faith cases. http://tinyurl.com/3e64w2o Sen. Menendez and Colleagues Urge Transparency in Foreclosure Practices.
Respectfully submitted, /s/ Christopher King, J.D. _______________________ Christopher King, J.D. cc: World Wide Web Blind copies
14
Dear Ms. Gilligan: Thank you for your prompt response and concern over the actions of foreclosure mill law firm Phelan, Hallinan & Schmieg, who, inter alia: 1) Irresponsibly called gun-toting police on me and the subject of an ongoing investigation with attendant court case. 2. Lied to building Chief of Security Jim Catullo as to whether they knew who I was or that I was covering this story. Read the emails between us in this morning's journal entry showing that my Notice of Media was successfully transmitted via fax four (4) times, along with the MortgageMovies Journal hit from the firm's server. As I noted to you per our phone call this afternoon, my intentions regarding this matter are to: 1. Follow the offering of your intern who suggested I contact your office on hearing that Phelan, Hallinan & Schmieg had telephoned the police on us and then failed to even tell the police why they did it. You may recall my first question to you was whether you had any knowledge of this issue at all, because I noted it was very involved and I needed you to understand everything about the facts of this case and about my background as an industry professional.
15
2. Respectfully demand a public reprimand from the Senator's office regarding this behavior: As I mentioned, as a former LE Attorney I can tell you that you can't just go indiscriminately calling the police on professional people just because you are afraid to answer their questions. What if the responding LE saw the black camera I was using that day at full focal length 560mm and thought I had a gun and shot me or the subject of my report? I could have very easily happened all because they didn't want to answer a question. Think about it. Now you can understand why you could hear the concern and righteous indignation in my voice. That indignation is shared by many others who will be contacting your office under separate cover. 3. Respectfully request a copy of any and all consumer/constituent complaints issued since 2005 against, or involving the law firm of Phelan, Hallinan & Schmieg. 4. Respectfully request a copy of all responses contemplated by the four (4) bullet points received pursuant to your 20 July, 2011 letter to FDIC Acting Comptroller Walsh, Chairman Bernanke and Acting Chairman Gruenberg as posted above; Sen. Menendez and Colleagues Urge Transparency in Foreclosure Practices. Thank you in advance for your time and consideration of these matters, and as we discussed if it is appropriate for you to forward my concerns to the press staff I understand that. As to the consumer complaints that may follow I imagine your staff will handle those directly as you have directly affected parties involved. Note: She is on it already! ********* What serendipity that I would meet Senator Menendez' intern during the filming of the current Mortgage Movie, highlighting the evil and mean-spirited phone calls to the police by Phelan, Hallinan & Schmieg. Now if we could just get his Senatorial Sister Kelly Ayotte -and others who sit by idly or in tacit complicity -- to do something, we might get somewhere. About two months have passed and she still hasn't issued her public stance on the CFPA, not to mention presiding over the largest consumer fraud in NH History, the mortgage-related FRM PONZI scam. You can watch it all right here:
16
CHRISTOPHER KING, JD. A/K/A KINGCAST-MORTGAGE MOVIES V. U.S. DEPARTMENT OF JUSTICE ) ) ) CASE NO.__________________ JUDGE______________________
) DRAFT – ATTORNEY MCLEOD MAY CONSIDER THIS A MOTION FOR RECONSIDERATION
COMPLAINT AND ADMINISTRATIVE APPEAL
STATEMENT OF CASE This is an Action brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), for injunctive and other appropriate relief, seeking the release of agency records from the NH U.S. Trustee requested by Plaintiff on March, 2011. This lawsuit challenges the failure of the Trustee to release documents requested under the journalist no fee FOIA requirements. JURISDICTION This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(A)(vii), 5 U.S.C. § 552(a)(4)(B), and 5 U.S.C. § 552(a)(6)(C)(i) (2012). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (2012). Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) (2012). THE PARTIES 1. Plaintiff Christopher King, J.D. (hereinafter “KingCast”) is a New-England based African-American journalist as defined by U.S. Magistrate Landya B. McCafferty, focusing on areas of corporate and government malfeasance and mortgage foreclosure fraud. Since December, 2010 he has regularly published his “Mortgage Movies” approximately seventynine (79) times on YouTube that have approximately 53,162 views, with the option of public comment and forum. 2. Defendant Department of Justice (“hereinafter “DOJ”) is the governmental entity charged with the fair and just application of the Freedom of Information Act (“FOIA), most specifically FOIA/552(a)(4)(A)(ii) in this instance governing the no-fee provisions of The Act. THE FACTS 3. The U.S. Department of Justice, by and through Attorney Janice Galli McLeod, on 16 May 2012 issued an arbitrary and capricious determination that Plaintiff was not a journalist within the meaning of FOIA/552(a)(4)(A)(ii), finding that the materials provided are largely “commentary.” In so doing Attorney McLeod willfully ignored every issue identified below in paras. 2 through 15, inclusive. See Plaintiff's Appeal and the 16 May letter at Exhibit 1.
1
4. There is no "commentary" exception involved in the language of 552(a)(4)(A)(ii) of title 5 of the United States Code as seen below. Nor is there any such restrictive language included in the case law of the forum state that governs these proceedings because the Federal Scheme may not afford less Constitutional protections than the particular State. Relevant excerpts are also seen below. 5. Prior to matriculation from Case Western Reserve School of Law Plaintiff earned a Bachelor's Degree in Communications with an emphasis on news writing and studies in 600 level Rhetoric courses. 6. In fall of 2010 NH U.S. District Magistrate Judge Landya B. McCafferty made an express finding of fact that "Plaintiff is an African-American journalist" in Case No. 2010-CV501. 7. As to prior publication history, Plaintiff has edited a large statewide weekly newspaper, the Ohio Call & Post. 8. Plaintiff has written for the Indianapolis Star, note that the issue involved in that 1990 feature involved illegal wireless phone surveillance, the very same issue currently implicated in the FOIA lawsuit of Electronic Information Privacy Information Center (EPIC) who is being copied on this journal entry. Plaintiff's Lexis inquiry yields EPIC v. FBI, DC Dist. 2012-CV-667, which also denied media status. That is how the government operates when it wants to hide something but it is illegal. 9. Plaintiff has co-hosted a radio show in Boston, Massachusetts.
10. Plaintiff was recently subpoenaed as a journalist (Motion to Quash granted) by the Boston Herald as noted by the Parties in Joanna Marinova v. Boston Herald, Suffolk Superior 2010-CV-1316. The Herald's Attorney even stated "nice blog." He also holds a Mayoral Commendation from Nashua Mayor Bernard Street for increasing public knowledge through the use of the First Amendment. 11. Plaintiff has been published in local media, include WBZ-TV and Revere Journal. 12. Plaintiff was chosen to co-chair a forum at New England News and Press Association's Annual Convention and Trade Show on the subject of contemporary journalism. 13. Plaintiff has posted actual courtroom footage and dozens, if not hundreds of emerging legal cases in his online "Mortgage Movies" journal along with legal analysis and the "commentary" to which Attorney McLeod alluded.
2
14. Plaintiff has approximately seventy-nine (79) Mortgage Movies videos that have approximately 53,162 views, also with the option of public comment. Some related videos on this very matter noting that Trustee Lawrence Susmki called Plaintiff "Debtor's Internet co-hort" while Plaintiff stood behind him in open court have drawn 2,679 views not counting the video of this Complaint warning that will be posted today, 20 May 2012. 15. The commentary to which Attorney Janice Galli McLeod alluded is commentary from a former Assistant State Attorney who has managed a Title Company and with managerial zoning experience which is directly related experience in these matters. 16. The NH Court has ruled in favor with a similar Party who provides online commentary and analysis yet Attorney McLeod failed to address that portion of Plaintiff's appeal. 17. To analyse the specific link Plaintiff forwarded that was downrated for “commentary” yields the followingresult: http://mortgagemovies.blogspot.com/2011/08/kingcast-downgrages-nh-senatorkelly.html There is a published letter from U.S.Senator Menendez to FED Chairman Bernanke. There are two videos documenting an attempt to interview Phelan Hallinan & Schmieg lawyers on the issue of standing and robo-signing, including footage of the police being called and a veteran office asking them "what the fucking problem is?" There is a video of a visit to the Washington, DC Office of Senator Kelly Ayotte noting her failure on the mortgage-related FRM Ponzi scam and asking where she stands on the CFPB, which is interesting because Plaintiff worked with Richard Cordray at the Ohio Attorney General's Office. There is a request to the Senator's office for a copy of any and all consumer/constituent complaints filed against Phelan Hallinan & Schmieg since 2005 that has been ignored now for nine (9) months. 18. Given that backdrop it is difficult -- actually impossible -- to comprehend how Attorney Galli McLeod could not possibly see that this is activity consonant with that of responsible journalism within the purview of the Law. That is why she disingenuously avoided any substantive analysis of the journal entry and completely failed to address the video content. That is what journalists do, they approach statespeople and ask questions. All of this is so simple. The journal entry is attached (Exhibit 2). 19. The NH Supreme Court case of Mortgage Specialists v. Implode-Explode clarified this issue with alarming alacrity even though Attorney McLeod arbitrarily and capriciously ignored this information:
3
Implode operates a website, www.ml-implode.com, that ranks various businesses in the mortgage industry on a ranking device that it calls “The Mortgage Lender Implode-O-Meter.” On its website, Implode identifies allegedly “at risk” companies and classifies them as either “Imploded Lenders” or “Ailing/Watch List Lenders.” The website allows visitors who register on the site and create usernames to post publicly viewable comments about lenders.
That is thematically identical to what Plaintiff does, as he has operated a general news journal for seven (7) years and an industry-specific journal for the past eighteen (18) months. It has 32,000 page views (and of course a similar number of movie views) so Plaintiff is a journalist in and of his own accord irrespective of whether major press publishes his material. The whole point is that as a qualified professional Plaintiff has HIS OWN LEGITIMATE MEDIA whether or not the DOJ approves of it. In point of fact it is particularly important that this Court protect journalists who criticize the government because that is the entire point of the Fourth Estate in the first place. The NH Supreme Court held: Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures. 20. That foregoing Opinion providing a full measure of Reporter’s privilege to ImplodeExplode is directly at odds with the 16 May, 2012 letter from Attorney McLeod, rendering such letter to be the product of arbitrary and capricious decision-making. As Plaintiff has previously stated online: Outstanding FOIA request: For U.S. Bankruptcy Trustee Larry Sumski to determine if or when his office has EVER challenged a proof of claim in the manner that many responsible Trustees are so doing. I doubt it because he is too busy calling me an "Internet cohort, watch the movie, which also exposes foreclosure mill attorney Thomas P. Dore, whose notaries are taking the Fifth (and possibly drinking fifths) like there's no tomorrow. I am correct in light of s849, the Open Government Act of 2007 and again in New Hampshire given Mortgage Specialists v. Implode Explode. http://www.blogger.com/postedit.g?blogID=8170726751633271129&postID=1550517761881212387
4
552(a)(4)(A)(ii) of title 5, United States Code, is amended by adding at the end the following: `In making a determination of a representative of the news media under subclause (II), an agency may not deny that status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester. Prior publication history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no prior publication history or current affiliation, the agency shall consider the requestor's stated intent at the time the request is made to distribute information to a reasonably broad audience.' In this clause, the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of newsmedia entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. 21. As such, Plaintiff is no less a journalist than his Internationally-known cousin, Washington Post/ESPN's Michael Wilbon. He may be a different sort of journalist but both men are journalists and both men would and should be entitled to the benefits of the practice. To decide otherwise is to violate the U.S. Code and the First Amendment to the United States Constitution, arbitrary and capricious opinions of the Department of Justice notwithstanding. Put simply, Plaintiff is entitled to the requested documents at no cost. PRAYER FOR RELIEF 1. That the Defendant provide the sought information at no cost to Plaintiff. 2. That Defendant reimburse Plaintiff for the costs and fees associated with this Complaint. 3. Further, the Declaratory Judgment that Plaintiff is a covered journalist in and of his own right and with respect to being a freelance journalist under the ACT. 4. Injunctive Relief to issue accordingly.
5
EXHIBIT 1
6
7
CHRISTOPHER KING, JD. http://KingCast.net http://MortgageMovies.blogspot.com [email protected] 617.543.8085/m 617.507.8031/f 13 August 2011 Re: VIA OVERNIGHT U.S. MAIL
FOIA Appeal on FOIA Request and Unchecked presence of mortgage fraud in Ingress foreclosure case, Hillsborough South Case No. 2010-CV-571:
Dear reviewing counsel: Certain of your DOJ staff are wasting taxpayer monies and abusing the public trust by failing to provide a press exemption relative to requested FOIA information on mortgage fraud. As 60 Minutes has noted, this is an issue that affects every American in one way or another, yet Attorney Larry Wahlquist conducted no analysis whatsoever of my position as a journalist irrespective of the facts that: 1.NH U.S. District Court Magistrate Judge Landya B. McCafferty expressly ruled “KingCast is an African-American journalist…..” 2. NH expressly ruled (in a mortgage website case no less) that website owners in New Hampshire are journalists when they provide news and information that the public may find useful. As you may see on the following page, my journal pages this year have approximately 160,000 hits. Two days ago I posted a video of Senator Kelly Ayotte discussing her failures as NH AG on the FRM Mortgage Ponzi scheme and ignoring my notice of Felony Wire Fraud and it has already 988 hits. Please pardon the colorful language used to describe Senator Ayotte: Kelly Ayotte Town Meeting: "She's full of shit...." (and will gut the CFPA) http://www.youtube.com/watch?v=jLS0N_hH-cc 3. My YouTube page has 244 subscribers, 190,000 upload views and 11,000 channel views. I dare say that is indicative of reasonable consumer interest given that I do not publicly advertise or employ any hit-boosting software. 4. I am published in Boston area newspapers and television. 5. I am published in respected mortgage journals on the World Wide Web. 6. I was a guest speaker at the 2011 New England News and Press Association annual trade show and conference. 7. The denial of media status is arbitrary and capricious as you may readily determine by the correspondence between Attorney Wahlquist and me. In point of fact, at the height – or nadir – of his insouciance he didn’t even respond to the letter written below. Twenty years ago my first job as a licensed attorney was to make the transition from law clerk to Assistant State Attorney, because I believed in our government and in our system of laws. By his (in)actions in this matter it is patently evident that Attorney Wahlquist is disrespecting that system of laws because he doesn’t like what I am exposing. However, to my knowledge the Statute doesn’t read “FOIA exemption for journalists who don’t ask troubling questions,” it simply reads “journalists.”
8
Please review this matter and remand it to Attorney Wahlquist with an explicit instruction advising him to forward the requested materials. I thank you in advance for your time, effort and consideration of the matters presented herein.
http://www.youtube.com/watch?v=Qai4X9bUSNI (video embedded at Attachment 1) http://www.youtube.com/watch?v=1_lwjNvqdcI (video embedded at Attachment 2)
9
Re:
Dereliction of Duty by U.S. Trustee Lawrence Sumski and Counsel Larry Wahlquist in Leslie Crepeau Bankruptcy Case:
http://www.youtube.com/watch?v=y5mtCjSioKE (video embedded at Attachment 3) (Overnighted via FEDEX for 5 August 2011 delivery) Dear Attorney Wahlquist: First of all regarding your footnote about not receiving my 21 March, 2011 letter all I can say is perhaps you need to have a word with your Manchester U.S. Trustee client because I am clearly seen passing that letter to the clerk in this video with the instruction to forward it to counsel… meaning you. They forwarded the prior request so they know the routine. This is simply further indicia of Bad Faith from that office: http://www.youtube.com/watch?v=y5mtCjSioKE
I am in receipt of your FEDEX letter dated 1 August 2011 and in return provide you with this overnight letter noting that your perfunctory (read: nonexistent) analysis of my status as a bona fide member of the media is incorrect and will be appealed should I not hear from you on or before 9 August, 2011. To wit: You cited a case in Bad Faith and cut off the rest of the paragraph so I have to call you on it right here and right now Counselor. You had better watch for an Ethics Complaint against you if you persist in this sort of deceit: From the Government’s own FOIA guide first the part you included in your letter to me, then in red the part you omitted: See also Brown v. U.S. Patent & Trademark Office, 445 F. Supp. 2d 1347, 1356-57 (M.D. Fla. 2006) (finding that plaintiff has not shown "that he is a freelance journalist with a 'solid basis for expecting publication'" (quoting agency regulation). But see Hosp. & Physician Publ'g, 1999 WL 33582100, at *3, *5 (ordering agency to apply news media status to plaintiff even though plaintiff had not gathered news in past but expressed intention to do so in future; noting that requester represented that information received "will eventually be
10
disseminated to the news media," that it will "not receive any income from its news gathering activities," and that "any windfall to the commercial aspect of its business will be negligible") Have you actually read Brown? I have. Well the Appellate case you cited contains no vital information so I pulled the original case from Lexis, and it informs this case: First of all Brown didn’t even identify himself as media representative at the early stages, as I have. Further, he was “profiled” but did not actually have any hosted stories or material as I do, not to mention the fact that my journal is replete with information noting that I am part of two different feature length documentary films on Mortgage Fraud. Frankly I think Brown got the proverbial shaft because he was an unpopular Plaintiff and I am sending him a copy of this letter to tell him so. ************ Nonetheless, you probably shouldn’t forget the fact that my requests are all based in New Hampshire, in which case the Home State has already ruled that website owners such as myself are indeed full-fledged journalists who may avail themselves of the privileges and protections appurtenant. See Mortgage Specialists v. Implode Explode Heavy Industries (NH Supreme Court Rockingham No. 2009-262 May 6, 2010). The record supports the following facts. Mortgage Specialists is a mortgage lender. Implode operates a website, www.ml-implode.com, that ranks various businesses in the mortgage industry on a ranking device that it calls “The Mortgage Lender Implode-O-Meter.” On its website, Implode identifies allegedly “at risk” companies and classifies them as either “Imploded Lenders” or “Ailing/Watch List Lenders. Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (quotations and citations omitted). The fact that Implode operates a website makes it no less a member of the press. In light of the trial court’s implicit findings, we conclude that Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege. The function and reality of Implode Explode and Mortgage Movies – featuring actual NH, California, NJ court action are identical with respect to this analysis. Just because you do not care for, or are ignorant of the law in the Forum State that the Feds must apply does not give you the right to deny my media payment exemption. Moreover you ignored the following indisputable fact of which I already announced: In KingCast v. Kelly Ayotte, NH GOP and Nashua PD, NH Dist 2010-CV-501, Magistrate Judge Landya B. McCafferty expressly found that “Plaintiff is an African-American Journalist.”
11
As to my function, it is indisputable that by and through all of my websites, but particularly through Mortgage Movies Journal, as a former LE Attorney and licensed title insurance producer I regularly (almost daily) publish periodicals read by hundreds every day and “provide information as primarily benefitting the general public,” per National Security Archive v. Dep't of Defense, 880 F.2d 1381 (D.C. Cir. 1989) as cited in Electronic Privacy Information Center v. D.O.D., Civil Action No. 02-1233 (2003). I have email mailing lists, online registered followers at Chris King’s First Amendment Page and Mortgage Movies Journal and many many more who follow informally. Nor are my efforts of a commercial interest as contemplated by the government’s own FOIA Fee Waiver guide: http://www.justice.gov/oip/foia_guide09/fee-waivers.pdf In sum: Congress, borrowing from both the Court of Appeals for the District of Columbia Circuit's opinion in National Security Archive v. DOD and the OMB Fee Guidelines has now statutorily defined a "representative of the news media." This subcategory includes "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." Additionally, Congress incorporated into the statutory definition the OMB Fee Guidelines' definition of "news" as "information that is about current events or that would be of current interest to the public." The new statutory definition also addresses the potential growth of alternative news media entities by providing a non-exclusive list of media entities. Finally, the statutory definition specifies that freelance journalists shall be considered representatives of the news media if they "can demonstrate a solid basis for expecting publication through [a news media] entity, whether or not the journalist is actually employed by the entity."
12
That’s all I need to say to you at this point. Other major press has run my video and hosted my pictures, including WBZ TV here in Boston and many others. As you already know, New England News and Press brought me in as a guest speaker for the 2011 NENPA Annual Trade Show Convention so your denial is not going to be well-taken on appeal. I will try to save you the embarrassment in the a priori sense:
As I am a gentleman, and as I want the record clear, I am going to give you one last chance to get it right. Now then as to the substantive clarifications you are correct, I seek: 1. Phone records fro the Manchester office, 1 Jan to 15 March, 2011. 2. Case numbers of any mortgage-related prosecutions the Manchester office has been involved in since 1 January, 2003. 3. Complaints filed in the Manchester, Boston and Worcester offices as well as the Executive Office, by any mortgagor (or representative) regarding mortgage and/or foreclosure issues since 1 Jan 2006 and 4. The no. of records filed with Courts. Thank you for your continued attention to this matter as it is very serious: You may be aware that NJ U.S. Senator Robert Menendez, unlike NH Senator Kelly Ayotte – is taking proactive steps in a similar manner:
13
EXHIBIT 2 http://mortgagemovies.blogspot.com/2011/08/kingcast-downgrages-nh-senatorkelly.html MONDAY, AUGUST 1, 2011 KingCast downgrades NH Senator Kelly Ayotte; salutes NJ Senator Robert Menendez for demanding proof of claims and show cause on foreclosure mill and robo-signature bad faith cases. http://tinyurl.com/3e64w2o Sen. Menendez and Colleagues Urge Transparency in Foreclosure Practices.
Respectfully submitted, /s/ Christopher King, J.D. _______________________ Christopher King, J.D. cc: World Wide Web Blind copies
14
Dear Ms. Gilligan: Thank you for your prompt response and concern over the actions of foreclosure mill law firm Phelan, Hallinan & Schmieg, who, inter alia: 1) Irresponsibly called gun-toting police on me and the subject of an ongoing investigation with attendant court case. 2. Lied to building Chief of Security Jim Catullo as to whether they knew who I was or that I was covering this story. Read the emails between us in this morning's journal entry showing that my Notice of Media was successfully transmitted via fax four (4) times, along with the MortgageMovies Journal hit from the firm's server. As I noted to you per our phone call this afternoon, my intentions regarding this matter are to: 1. Follow the offering of your intern who suggested I contact your office on hearing that Phelan, Hallinan & Schmieg had telephoned the police on us and then failed to even tell the police why they did it. You may recall my first question to you was whether you had any knowledge of this issue at all, because I noted it was very involved and I needed you to understand everything about the facts of this case and about my background as an industry professional.
15
2. Respectfully demand a public reprimand from the Senator's office regarding this behavior: As I mentioned, as a former LE Attorney I can tell you that you can't just go indiscriminately calling the police on professional people just because you are afraid to answer their questions. What if the responding LE saw the black camera I was using that day at full focal length 560mm and thought I had a gun and shot me or the subject of my report? I could have very easily happened all because they didn't want to answer a question. Think about it. Now you can understand why you could hear the concern and righteous indignation in my voice. That indignation is shared by many others who will be contacting your office under separate cover. 3. Respectfully request a copy of any and all consumer/constituent complaints issued since 2005 against, or involving the law firm of Phelan, Hallinan & Schmieg. 4. Respectfully request a copy of all responses contemplated by the four (4) bullet points received pursuant to your 20 July, 2011 letter to FDIC Acting Comptroller Walsh, Chairman Bernanke and Acting Chairman Gruenberg as posted above; Sen. Menendez and Colleagues Urge Transparency in Foreclosure Practices. Thank you in advance for your time and consideration of these matters, and as we discussed if it is appropriate for you to forward my concerns to the press staff I understand that. As to the consumer complaints that may follow I imagine your staff will handle those directly as you have directly affected parties involved. Note: She is on it already! ********* What serendipity that I would meet Senator Menendez' intern during the filming of the current Mortgage Movie, highlighting the evil and mean-spirited phone calls to the police by Phelan, Hallinan & Schmieg. Now if we could just get his Senatorial Sister Kelly Ayotte -and others who sit by idly or in tacit complicity -- to do something, we might get somewhere. About two months have passed and she still hasn't issued her public stance on the CFPA, not to mention presiding over the largest consumer fraud in NH History, the mortgage-related FRM PONZI scam. You can watch it all right here:
16
