United States District Court, D. Columbia.
[Copyrighted Material Omitted]
GREGORY BARTKO, Plaintiff, Pro se, Yazoo City, MS.
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.
E. BOASBERG, United States District Judge.
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 many Department of Justice components, including
the Office of Professional Responsibility. This Court has
already issued several other Opinions discussing the merits
of related FOIA requests in this case. See, e.g., Bartko
v. Dep't of Justice, No. 13-1135, 79 F.Supp.3d 167,
2015 WL 513272 (D.D.C. Feb. 9, 2015). This Opinion addresses
the latest dispute between Bartko and OPR.
seeking summary judgment, OPR asserts that it has released
all of the responsive documents that Plaintiff is entitled to
receive and has properly withheld others pursuant to certain
FOIA exemptions. Bartko, conversely, believes that he is
entitled to summary judgment and requests that the Court
compel the agency to release all withheld records. The Court
sides with OPR.
prior Opinion set forth in some detail the factual background
of this suit, see Bartko v. Dep't of
Justice, 62 F.Supp.3d 134, 138-40 (D.D.C. 2014), the
Court will now describe only those events that directly
relate to the present Cross-Motions.
early 2013, Plaintiff submitted FOIA requests to no fewer
than seven federal agencies and components, seeking
information relating to his prosecution so that he could file
a habeas petition. See id. at 139. Dissatisfied with
the substantive responses and lack of promptness displayed by
the government, he brought suit in this Court. Two years and
countless rounds of briefing later, Plaintiff and the
Defendant agencies have finally begun to narrow their
disagreements concerning those agencies' compliance -- or
lack thereof -- with FOIA.
the Defendant agency at issue here, initially resisted
disclosure when responding to Bartko's request; in fact,
it issued a Glomar response, thereby refusing to confirm or
deny the existence of the documents that Plaintiff sought.
See id. at 141-44; Phillippi v. CIA, 546
F.2d 1009, 1011-13, 178 U.S. App.D.C. 243 (D.C. Cir. 1976)
(explaining that Glomar responses are exceptions to general
rule that agencies must acknowledge the existence of
responsive information and explain why it has been withheld).
Finding this response inappropriate, the Court, on August 5,
2014, required OPR to search
for records relating to its then-ongoing investigation into
Assistant U.S. Attorney Clay Wheeler, the lead prosecutor in
Bartko's criminal trial. See Bartko, 62 F.Supp.3d at 144.
To comply with that order, OPR conducted a search later that
month and identified 441 pages of responsive documents. See
Mot., Exh. 1 (Fourth Declaration of Ginae Barnett), ¶
¶ 3-11. Because the investigation into Wheeler was still
ongoing at that time, the agency experienced some delays in
processing the records; the Court consequently gave OPR until
the end of January 2015 to complete the task. See ECF No. 124
(Order of December 11, 2014) at *2-3.
processed these 441 pages of records, OPR produced to
Plaintiff one page in full and 12 in part, with redactions
made pursuant to various FOIA exemptions. See Fourth Barnett
Decl., ¶ 8. It also withheld in full 102 pages and
provided a Vaughn Index specifying which exemptions it relied
upon in these 114 total pages. See id., Tab D; see also
Vaughn v. Rosen, 523 F.2d 1136, 1144, 173 U.S.
App.D.C. 187 (D.C. Cir. 1975) (establishing practice of using
the now-named Vaughn Index). Finally, OPR referred six pages
to the Office of the Inspector General and 320 pages to the
Executive Office of U.S. Attorneys. See Fourth Barnett Decl.,
¶ ¶ 8-11.
that it has produced some records, withheld others, and
referred the bulk of them to other components, OPR believes
that it has satisfied its FOIA obligations and seeks summary
judgment. Bartko, by contrast, believes that he is entitled
to summary judgment and moves to compel the release of all of
the withheld documents. After reviewing the briefing in the
case, the Court ordered OPR to provide the 114 disputed pages
to the Court for in camera review. See Minute Order
of June 30, 2015. The agency complied, and the Court has now
reviewed all of the documents.
judgment 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)
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of U.S. 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 and citation 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 agency to
sustain its action' and directs the district courts to
'determine the matter de novo.'" Dep't
of Justice v. Reporters Comm. for the Freedom of the
Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d
774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
enacted FOIA in order " to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny." Dep't of the Air Force v.
Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11
(1976) (quotation marks and citation omitted). " The
basic purpose of FOIA is 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." John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107
L.Ed.2d 462 (1989) (citation omitted). The statute provides
that " each agency, upon any request for records which
(i) reasonably describes such records and (ii) is made in
accordance with published rules . . . shall make the records
promptly available to any person." 5 U.S.C. §
552(a)(3)(A). Consistent with this statutory mandate, federal
courts have jurisdiction to order the production of records
that an agency improperly withholds. See id. §
552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55.
" At all times courts must bear in mind that FOIA
mandates a 'strong presumption in favor of
disclosure.'" Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 32, 353 U.S. App.D.C.
374 (D.C. Cir. 2002) (quoting Dep't of State v.
Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526
the parties' Cross-Motions are, at times, difficult to
follow inasmuch as they often talk past each other, the Court
can discern two separate issues: (1) whether only 114 pages
(or some larger number) are in dispute and (2) the propriety
of the withholdings on these pages. The Court will address
the issues separately, noting ...