United States District Court, D. Columbia.
GREGORY BARTKO, Plaintiff, Pro se, Yazoo City, MS.
For UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES SECURITIES AND EXCHANGE COMMISSION, UNITED STATES POSTAL INSPECTION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE OFFICE PROFESSIONAL RESPONSIBILITY, UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF UNITED STATES ATTORNEY, UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Defendants: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
Plaintiff Gregory Bartko, currently serving a 23-year prison sentence for securities fraud, is seeking to exonerate himself by proving prosecutorial misconduct. To that end, he has brought this pro se suit under the Freedom of Information Act against a number of Department of Justice components, including, inter alia, the Executive Office of United States Attorneys and the Office of Professional Responsibility. This Court has already issued several other Opinions addressing the merits of related FOIA requests in this case. See, e.g., Bartko v. United States Dep't of Justice, No. 13-1135, 79 F.Supp.3d 167, 2015 WL 513272 (D.D.C. Feb. 9, 2015). This Opinion resolves the latest skirmish over the release of documents pertaining to his prosecution.
Bartko asserts that he is entitled to partial summary judgment against EOUSA and that the Court should compel the agency to release responsive records in its possession notwithstanding his refusal to pay assessed processing fees. EOUSA, conversely, contends that partial summary judgment in its favor is justified on the grounds that its redactions are proper and that Plaintiff did not merit a fee waiver. The Court sides with the agency on this one.
As a prior Opinion set forth in some detail the factual background of this suit, see Bartko v. United States Dep't of Justice, No. 13-1135, 62 F.Supp.3d 134, 2014 WL 3834343, at *1 (D.D.C. August 5, 2014), the Court will now describe only those events that directly relate to the present Motions.
Such events actually start with a different agency. On July 26, 2014, Plaintiff submitted a FOIA request to OPR, seeking records relating to himself and his criminal case. See Pl. Mot., Exh. 1 (July 26, 2014, letter) at 1. He also included in this letter a request for a fee waiver. See id. at 1-2. OPR issued its final determination in response on September 10, in which it explained that it had identified 610 pages of records that primarily related to EOUSA, and it had thus referred those records there for review and release. See Pl. Mot., Exh. 2 (September 10, 2014, letter) at 1. (EOUSA elsewhere calculates the number of pages at 620, see Def. Mot. & Opp., Att. 1 (Declaration of David Luczynski), Exh. C (EOUSA Final Action Letter) at 1, which seems correct given the breakdown discussed shortly. The Court will thus use this number.)
As Plaintiff received no documents for several months thereafter, he sought relief from this Court in his Second Supplemental Complaint, which he filed on December 16, 2014. See ECF No. 126. On January 13, 2015, he moved for partial summary judgment, arguing that EOUSA had failed to timely process or release the referred records. He also argued that he had exhausted administrative remedies because approximately three months had passed since EOUSA received the September 10, 2014, referral from OPR, and this period exceeded the twenty working days in which it was required to respond. See ECF No. 139 at 3-8 (citing 5 U.S.C. § 552(a)(6)(A)(i)).
On February 9, 2015, EOUSA finally responded by releasing 89 pages in full and 12 pages in part. See Final Action Letter. It appears that at least some of the delay was caused by the initial group of records' being misplaced or lost in transmission between OPR and EOUSA. See Response re Motion for Leave to File Second Supplement Complaint, Exh. 1 (Supplemental Declaration of David Luczynski) at 3. While the agency's form letter did not specifically address Bartko's fee-waiver request, it did explain that -- in compliance with DOJ regulations -- the first 101 pages were being released without charge, but the 519 additional pages would be subject to payment of a $51.90 fee. See EOUSA Final Action Letter at 1. Plaintiff was informed that if he objected to paying the fee, he could appeal this assessment to the Office of Information Policy. See id. at 2. Bartko submitted an administrative appeal to OIP on March 5, 2015, and that appeal is currently pending. See Pl. Opp. & Reply at 6.
EOUSA has now cross-moved to dismiss Plaintiff's claims and also seeks partial summary judgment.
II. Legal Standard
Given the posture of Defendant's Motion, the Court sets out the standard for both a motion to dismiss and one for summary judgment.
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a suit when the complaint " fail[s] to state a claim upon which relief can be granted." In evaluating a motion to dismiss, the Court must " treat the complaint's factual allegations as true and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000) (citation and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court need not accept as true, however, " a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193, 372 U.S.App.D.C. 335 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), " a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal quotation omitted). Though a plaintiff may survive a Rule 12(b)(6) motion even if " recovery is very remote and unlikely," the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
In evaluating the sufficiency of a complaint under Rule 12(b)(6), courts may consider " the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Equal Emp't Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624, 326 U.S.App.D.C. 67 (D.C. Cir. 1997). " Documents that are referenced in, or are an integral part of, the complaint are deemed not 'outside the pleadings'" for purposes of a motion to dismiss for failure to state a claim. Norris v. Salazar, 885 F.Supp.2d 402, 407 n.9 (D.D.C. Aug. 17, 2012).
Summary judgment, conversely, may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." ). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087, 373 U.S.App.D.C. 308 (D.C. Cir. 2006). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456, 295 U.S.App.D.C. 350 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of United States Trade Rep.,641 F.3d 521, 527, 395 U.S.App.D.C. 155 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they " describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. Dep't of State,565 F.3d 857, 862, 385 U.S.App.D.C. 394 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations " are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC,926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (internal quotation marks omitted). " Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden 'on the ...