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Bartko v. United States Department of Justice

United States District Court, District of Columbia

September 25, 2018

GREGORY BARTKO, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, et al., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         The 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.)

         A. Request No. 2014-486

         Bartko 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. G.

         Bartko 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.

         After 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.

         Several 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.

         B. Request No. 2014-3847

         Bartko 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. Id.

         Bartko 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).

         While 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 res judicata.

         C. Request No. 2015-759

         Bartko's 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.

         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 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).

         FOIA 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)).

         III. Analysis

         Congress 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)).

         Before 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.

         A. Request No. 2015-759

         EOUSA 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.

         1. Responsive Records

         The 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.

         The 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.

         This 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.

         Notwithstanding 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 ...


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