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Bartko v. United States Department of Justice

United States District Court, District of Columbia

April 11, 2019

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

          MEMORANDUM OPINION

          James E. Boasberg, United States District Judge.

         This case is the latest chapter in the ongoing saga between pro se Plaintiff Gregory Bartko and various agencies of the federal government. Bartko seeks the disclosure of records under the Freedom of Information Act to illuminate alleged prosecutorial misconduct connected to his conviction for fraud in the Eastern District of North Carolina. This particular suit concerns FOIA requests that he submitted to Defendants Executive Office for U.S. Attorneys and U.S. Bureau of Prisons. Defendants now move for summary judgement as to the adequacy of their searches and the withholding of responsive documents pursuant to several FOIA exemptions. Finding discrepancies in EOUSA's search - Bartko now concedes the adequacy of BOP's search - but sufficient justification for the withholdings, the Court will grant in part and deny in part the Motion.

         I. Background

         This Court is no stranger to Bartko and his FOIA pursuits. See, e.g., Bartko v. U.S. Dep't of Justice, 62 F.Supp.3d 134 (D.D.C. 2014). It will focus here on those events pertaining to this Motion for Summary Judgment.

         Plaintiff submitted two FOIA requests that are at issue, one to EOUSA and one to BOP. In the former, dated November 28, 2016, Bartko sought the following:

Records of correspondence (including email or other forms of electronic messaging) to or from any personnel in the United States Attorney's Office for the Eastern District of North Carolina . . . created between January 1, 2004 and the present date and which was sent or transmitted to any of the following persons. EXCLUDED from this FOIA request are any and all records previously released in connection with Bartko's previously submitted FOIA requests.

ECF No. 1 (Compl.), Exh. 1 (FOIA Request Letter No. 2017-3456) at 1 (emphasis omitted). The letter then listed 17 specific names, along with “[a]ny personnel in the Department of Justice's Office of Professional Responsibility . . . [and] Professional Responsibility Advisory Office” and “[a]ny personnel with Corporate Office Centers in its capacity as the manager of Bartko's executive office suite located in Atlanta, GA.” Id. at 1-2. Bartko's letter explained that he sought the records in connection with one or more of three criminal cases prosecuted in the United States District Court for the Eastern District of North Carolina. Id. at 1. Those cases specifically were:

1. United States v. Gregory Bartko, EDNC No. 5:09-cr-0321 (D) and on appeal to the Fourth Circuit, No. 12-4298;
2. United States v. John K. Colvin, EDNC No. 05:09-cr-0072 (D) and on appeal to the Fourth Circuit, No. 10-5337; and
3. United States v. Scott B. Hollenbeck, EDNC No. 5:07-cr-117-BR.

Id.

         EOUSA then assigned Bartko's FOIA request the number 2017-3456 and sent it on to the U.S. Attorney's Office for the Eastern District of North Carolina. See ECF No. 55 (Def. MSJ & Statement of Undisputed Facts), ¶ 3. That office conducted a search that will be discussed in more detail later. On November 1, 2018, following the search, EOUSA released 90 pages of records to Bartko in full and 20 pages that were partially redacted. See ECF No. 55 (Declaration of Tricia Francis), ¶ 3; ECF No. 57-1 (Pl. Resp. to Def. Statement of Facts), ¶ 7. The agency also withheld 43 pages in full, citing FOIA Exemptions 3, 5, 6, 7(C), and 7(D). Id., ¶¶ 4-18.

         Plaintiff submitted a second, related FOIA request to BOP on or about November 29, 2017. See ECF No. 29 (Supplemental Complaint Against BOP), ¶ 3. In this request, Bartko sought mail communications sent to or from inmate Scott Hollenbeck relating to Hollenbeck's sentence reduction or his cooperation as a government witness; mail communications to or from Hollenbeck or his wife relating to the written cooperation agreement among Hollenbeck, his wife, and any personnel within USAO-EDNC; all visitation records associated with Hollenbeck and four specific individuals - Clay C. Wheeler and David Bragdon from USAO-EDNC, U.S. Postal Inspector Michael Carroll, and FBI Special Agent Joan Fleming; and finally, any evidence relating to disciplinary action taken against inmate Hollenbeck by BOP. See ECF No. 29-1 (BOP FOIA Request) at 1. In response, BOP searched its files and systems, including its inmate-email system, prisoner-visitation logs, and Hollenbeck's disciplinary record. See ECF No. 55-4 (Declaration of Kenneth Richardson), ¶¶ 7-10. It found no records responsive to this request. Id., ¶¶ 10-11.

         Defendants have now brought a Motion for Partial Summary Judgment relating only to those requests. Plaintiff, in his Response to the Motion, accepts the adequacy of BOP's search. See ECF No. 57 (Pl. Resp. to Def. MSJ) at 1. The only issue that remains for the Court's ...


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