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Bartko v. United States Department of Justice

United States District Court, District of Columbia

August 26, 2016



          JAMES E. BOASBERG, United States District Judge.

         In an effort to recover from federal agencies documents that he believes may help him overturn his convictions for conspiracy, mail fraud, and selling unregistered securities - for which he is presently serving a 23-year sentence - pro se Plaintiff Gregory Bartko has filed a slew of Freedom of Information Act requests with, inter alia, the Department of Justice, the Federal Bureau of Investigation, the United States Postal Inspection Service, and the Securities and Exchange Commission. A compendium of the Court's previous Opinions related to these requests would number in the hundreds of pages; this Opinion, like the seventh novel in the Harry Potter series, brings a much-anticipated end to a many-layered saga.

         The only extant request is one Bartko filed with the Securities and Exchange Commission. Although, in an earlier round of briefing, the Court granted summary judgment to the SEC on a number of issues - including the propriety of some of the FOIA exemptions it had invoked - it also held that material factual disputes remained as to the adequacy of the agency's search for responsive records. The SEC now contends in its renewed Motion for Summary Judgment that its most recent search is sufficiently comprehensive. Bartko, on the other hand, continues to believe that the SEC has not searched for all records responsive to his narrowed request, that the agency is not interpreting that request in good faith, and that it must search other files to satisfy its obligations under FOIA. Concurring that the Commission has demonstrated that its search was reasonable and adequate, the Court will grant its Motion and deny Bartko's Cross-Motion.

         I. Background

         As mentioned, the Court has issued numerous Opinions about Bartko's multiple requests to myriad agencies. See, e.g., Bartko v. Dep't of Justice, 2016 WL 829967 (D.D.C. Mar. 3, 2016); Bartko v. Dep't of Justice, 2015 WL 9272833 (D.D.C. Dec. 18, 2015). As only his SEC request is at issue here, the Court will limit its factual recitation to that agency. In addition, since a previous Opinion recounted in detail the facts related to the SEC request, see ECF No. 107 (Memorandum Opinion of October 8, 2014), the Court will only summarize them here.

         Bartko filed his first FOIA request with the SEC on May 11, 2011, seeking records in six different categories. Id. at 5. The request was aimed at discovering evidence that would lend credence to his belief that SEC attorney J. Alex Rue had improperly colluded with Assistant United States Attorney Clay Wheeler in Bartko's criminal prosecution. Id. at 6. The SEC's Office of FOIA Services (OFS) searched records in its Name Recognition Search Index for responsive materials and identified two matters in the SEC's Atlanta Regional Office (ARO) as possibly responsive: one file labeled In the matter of Mobile Billboards of America (termed by both parties “the MBA file”) containing materials related to an investigation initiated in 2004, and another labeled In the matter of Bartko (“the Bartko file”) containing materials related to an administrative enforcement proceeding against Plaintiff. Id. at 6-7. The Regional Office confirmed that these were the only potentially responsive files in existence. Id. at 7.

         In June 2011, the SEC informed Bartko that it had identified potentially responsive materials in the MBA file, but that the file was voluminous. At the urging of the agency and to expedite the processing, Plaintiff narrowed his FOIA request to “any record that relates to the SEC's inquiry of Capstone Private Equity Bridge & Mezzanine Fund, LLC, a Delaware limited liability company between January 1, 2005 and the present date, conducted by any staff member of the Atlanta, GA Regional Office of the SEC.” Id. at 7-8 (citation omitted). OFS then searched for the term “Capstone” and found potentially responsive records. Id. at 8. The agency was, however, somewhat contradictory about whether these records were in the Bartko file or the MBA file. Id.

         After some time, Bartko learned that his FOIA request had stalled there. Id. at 8-9. He thus filed suit in November 2013, challenging the SEC's response. Id. at 2. Bartko then moved for summary judgment, and the agency cross-moved while simultaneously completing its processing of Plaintiff's FOIA request and transmitting to him 1290 pages of records found within the MBA file. Id. The dueling motions focused on two issues: whether the SEC had properly invoked certain exemptions in withholding other documents and whether it had adequately conducted its search.

         While the Court found that Bartko's first contention was without merit, it did concur with him that the Commission had not yet carried its burden to demonstrate that its search had been adequate. See id. at 9. More specifically, the Court directed the SEC to “demonstrate[] why the Bartko file was not searched for records responsive to Plaintiff's narrowed request.” Id. at 13. At the same time, the Court rejected Bartko's argument that the Office of FOIA Services should have looked outside of the Atlanta Office for responsive records, including by searching other regional offices. Id. at 12. It also found unavailing Plaintiff's assertion that his knowledge of “1, 000 pages of records” that he had delivered to the Atlanta Office himself - but which were not released as part of the agency's production - indicated that the SEC's search was inadequate. Id. at 11-12.

         Having now searched the Bartko file, as instructed, the SEC has renewed its Motion for Summary Judgment. See ECF No. 252. Plaintiff, again, has cross-moved for the same. See ECF No. 254.

         II. Legal Standard

         Summary 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (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 (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 5 U.S.C. § 552(a)(4)(B); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

         FOIA 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 (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, which “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other ...

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