United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
case presents the latest in a long series of disputes between
Plaintiff Gregory Bartko and various branches of the federal
government over the disclosure of records under the Freedom
of Information Act. For a number of years, Bartko has sought
records from different agencies in an effort to uncover
information about alleged prosecutorial misconduct associated
with his conviction for criminal fraud in the Eastern
District of North Carolina. He filed this particular pro
se suit in connection with several FOIA requests he made
to Defendant Executive Office for United States Attorneys.
EOUSA now moves for summary judgment as to two of those
requests and dismissal as to another, contending that it
properly withheld documents under several FOIA exemptions and
that Bartko's claims are otherwise procedurally
deficient. Finding that some but not all of EOUSA's
withholdings were proper, and that one of Bartko's claims
is procedurally barred but the other is not, the Court grants
in part and denies in part EOUSA's Motion.
Court has recounted the circumstances underlying Bartko's
convictions and demands for records in several Opinions in
his previous FOIA suit. See, e.g., Bartko v.
U.S. Dep't of Justice, 62 F.Supp.3d 134 (D.D.C.
2014). Rather than retread the same ground, the Court
confines its discussion of the factual and procedural
background to the particulars of the three FOIA requests at
issue in Defendant's Motion. (A fourth request is the
subject of separate, ongoing summary-judgment briefing.)
Request No. 2014-486
filed the first FOIA request at issue here, No. 2014-486,
with EOUSA in 2013, seeking records associated with his
prosecution for criminal fraud in the Eastern District of
North Carolina. See ECF No. 12 (Answer), Exh. 1,
Attachs. F & H. Concluding that the scope of the request
was so expansive that its search would take over 93 hours and
stretch across 21 boxes of records, EOUSA refused to process
it without advanced payment of $2, 618. Id., Attach.
initially sought judicial review of EOUSA's response in a
previous FOIA suit. This Court dismissed the claim without
prejudice because he had not exhausted his administrative
remedies. See Bartko v. U.S. Dep't of Justice,
2014 WL 12787640, at *7 (D.D.C. Sept. 9, 2014). The Court
explained that Bartko “remains free to bring a new suit
- or conceivably seek to amend his current one - challenging
those actions, provided he has fully exhausted his
administrative remedies before filing.” Id.
the Court's dismissal, Bartko tried to do just that. He
filed an administrative appeal with the Office of Information
Policy, arguing that the fee demand was improper.
See Answer, Exh. 1, Attach. L. But OIP refused to
hear the appeal on the ground that his request remained the
subject of litigation. Id., Attach. T.
years after this dismissal, Bartko filed this suit. He again
seeks judicial review of EOUSA's refusal to process his
request without advance payment of processing fees.
See ECF No. 1 (Compl.), ¶¶ 52-53. EOUSA
asks for summary judgment as to this claim.
Request No. 2014-3847
originally submitted the second FOIA request, No. 2014-3847,
to the Department of Justice's Office of Professional
Responsibility. Id., ¶ 60. This request also
sought records of Bartko's prosecution for criminal fraud
- i.e., the same category of records subject to
Request No. 2014-486. Id. OPR released some records
and referred others - either 610 pages, 619 pages, or 620
pages, depending on whom you ask - to EOUSA for further
processing. Id., ¶¶ 55-57; Answer, Exh. 1,
Attach. P. EOUSA eventually released certain records,
withheld and redacted others, and declined to process 519
pages until Plaintiff paid a processing fee of $51.90.
initially sought judicial review of this claim in his
previous FOIA suit. See Bartko v. U.S. Dep't of
Justice, No. 13-1135, ECF No. 126 (Second Suppl.
Compl.), ¶¶ 3-8. This Court granted summary
judgment to EOUSA there, see Bartko v. U.S. Dep't of
Justice, 102 F.Supp.3d 342 (D.D.C. 2015), and Bartko
appealed. The Court of Appeals recently reversed in part - on
the question of whether Bartko was entitled to a
public-interest fee waiver - and remanded the case to this
Court. See Bartko v. U.S. Dep't of Justice, 898
F.3d 51, 74-76 (D.C. Cir. 2018).
his appeal in the previous FOIA suit was pending, Bartko
filed this action. He again argues that EOUSA failed to
properly respond to his request for the 620 or so pages of
records OPR had referred to Defendant. See Compl.,
¶¶ 55-63. EOUSA asks the Court to dismiss this
claim because it violates the rule against
“claim-splitting” - a sort of corollary to
Request No. 2015-759
third FOIA request in this case, No. 2015-759 - also
originally submitted to OPR - sought any records of
misconduct committed by Assistant United States Attorney Clay
Wheeler, who prosecuted Plaintiff for criminal fraud in the
Eastern District of North Carolina. See Compl.,
¶ 27. After processing and releasing certain records,
OPR referred several hundred additional pages - either 320
pages or 642 pages - to EOUSA. Id., ¶ 29.
Invoking several FOIA exemptions, EOUSA withheld the records
in full. Id., ¶ 30. Plaintiff's suit asks
this Court to order the agency to hand over the records.
Id., ¶¶ 38-39. Defendant now also seeks
summary judgment as to this claim.
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
non-moving 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).
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). The
Court may grant summary judgment based solely on information
provided in an agency's affidavits or declarations when
they describe “the documents and 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.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). 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 (D.C. Cir. 1991) (quoting Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir.
1981)). “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.'” U.S. Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)).
enacted FOIA “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 (1976) (quotation marks and citation
omitted). In doing so, FOIA helps “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 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 (D.C. Cir. 2002)
(quoting U.S. Dep't of State v. Ray, 502 U.S.
164, 173 (1991)).
the Court is Defendant's Motion to Dismiss and for
Partial Summary Judgment. The Court addresses the requests
separately and in the order in which the parties brief them.
Request No. 2015-759
contends that summary judgment is appropriate as to Request
No. 2015-759 because there is no genuine dispute of material
fact over whether it properly withheld all responsive records
pursuant to FOIA Exemptions 5, 6, and 7(C). See ECF
No. 20 (Def. MSJ) at 3-13. Bartko resists this position on
two grounds. First, as a threshold matter, he asserts that
the Government possesses several hundred pages of responsive
records that it has never processed or disclosed.
See ECF No. 25 (Pl. Opp.) at 2-4. Second, he argues
that the invoked exemptions do not apply to the records EOUSA
has withheld. Id. at 4-24. On the first issue, the
Court agrees with the Government that it has processed the
relevant pages of responsive documents. On the second, with
just one exception, the Court sides with Bartko that the
agency is not entitled to summary judgment at this stage
based on its invocations of certain exemptions.
Court first takes up Bartko's contention that EOUSA has
failed to process all records responsive to his FOIA request.
In short, Plaintiff believes that there are 642 responsive
pages, but that EOUSA has only processed 320. See
Pl. Opp. at 2-4. Bartko's perturbation over EOUSA's
position is understandable. In the letter it sent him in
response to this request, EOUSA averred that it had withheld
642 pages of records. Id, Attach 2. Then, in
processing Bartko's appeal of its determination, the
agency stated that it had reviewed only “320 pages of
responsive records.” Answer, Exh. 1, Attach. D. EOUSA
has stuck to this latter position in the current Motion.
good news is that the agency has finally explained the
discrepancy. In a declaration attached to its Reply, it
explains that OPR technically referred to it 642 pages of
responsive records, as Bartko suspected. See ECF No.
30 (Def Reply), Exh. 1 (Second Declaration of Tricia
Francis). Those 642 pages, however, consisted of the
following: 320 pages that OPR had marked with preliminary
FOIA determinations; a duplicate set of 320 pages
that OPR had not marked; and two cover pages. Id
Confirming the make-up of the referral, EOUSA attached to the
declaration a copy of the original referral letter OPR sent
EOUSA stating that the referral contained a duplicate set.
Id, Attach. A.
explanation resolves Bartko's concerns. When the agency
initially told Bartko that it had withheld 642 pages, it was
being truthful: that is the total number of pages of records
it had held back. When it told Bartko later as part of his
administrative appeal that it had reviewed only 320 pages,
EOUSA likewise acted properly: the remaining 322 pages that
it had ignored or missed were merely duplicates or cover
pages. With the discrepancies resolved, no evidence remains
that EOUSA possesses additional pages of responsive records
that it has not yet processed or disclosed.
EOUSA's most recent explanation, Bartko continues to
believe that there is a genuine dispute of material fact over
whether EOUSA processed all records responsive to this
request. See ECF No. 33 (Pl. Surreply) at 3-6. He
starts by questioning the veracity of the most recent
declaration, noting that it was not made under penalty of
perjury. But Bartko does not challenge the
correctness of the document attached to the declaration -
i.e., OPR's letter to EOUSA noting the ...