United States District Court, District of Columbia
E. BOASBERG, United States District Judge.
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.
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
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.
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.
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.
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.
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.
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.
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).
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).
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