United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
se Plaintiff Gregory Bartko's series of Freedom of
Information Act suits resumes here against assorted
Department of Justice entities. Following the recent D.C.
Circuit opinion - Bartko v. U.S. Dep't of
Justice, 898 F.3d 51 (D.C. Cir. 2018) - Defendants
handed over certain documents and also conducted a
supplemental search that resulted in the release of
additional materials. Believing that they have finally
satisfied their FOIA obligations, Defendants now file a
Motion for Summary Judgment. But Plaintiff is not ready to
free them from this labyrinth just yet. Bartko thinks that
there remain inappropriate redactions, that Defendants owe
him further documents, and that the new information provided
warrants a renewed consideration of other withheld material.
The Court will grant summary judgment to the Office of
Professional Responsibility and the Executive Office for
United States Attorneys, but the Federal Bureau of
Investigation has some remaining work to do.
who is currently serving a 23-year prison sentence for fraud,
has submitted multiple FOIA requests to FBI, OPR, and EOUSA.
The information Bartko seeks mostly concerns his criminal
trial, the alleged misconduct by Government employees - such
as Assistant U.S. Attorney Clay Wheeler - in the course of
the trial, and the Government's handling of that
misconduct. This particular spat involves a thumb drive from
the FBI and a handful of document redactions by OPR and
majority of the disputes, today's Opinion is not their
premiere in front of this Court. The first matter concerns an
FBI thumb drive, which this Court previously addressed,
finding that it was properly withheld under Exemption 3.
See Bartko v. U.S. Dep't of Justice, 2015 WL
9272833, at *4 (D.D.C. Dec. 18, 2015), aff'd in part,
rev'd in part, 898 F.3d 51 (D.C. Cir. 2018). On
August 3, 2018, the D.C. Circuit reviewed this decision and
ordered this Court to reconsider that ruling in light of an
intervening D.C. Circuit opinion, Labow v. U.S. Dep't
of Justice, 831 F.3d 523 (D.C. Cir. 2016). See
Bartko, 898 F.3d at 73. The Court moves forward with
those marching orders today.
of the OPR documents now before the Court were also the
subject of prior determinations by this Court and the D.C.
Circuit. This Court concluded in 2015 that a series of OPR
documents was properly withheld under Exemptions 5 and 7(C).
See Bartko v. U.S. Dep't of Justice, 128
F.Supp.3d 62, 72-73 (D.D.C. 2015). The D.C. Circuit - in the
same August 3, 2018, Opinion - disagreed with this
Court's ruling on Exemption 7(C) and ordered the release
of documents previously protected by that exemption. See
Bartko, 898 F.3d at 70. OPR promptly relinquished both
the eight records previously shielded by 7(C) - OPR-1, OPR-2,
OPR-4, OPR-5, OPR-27, OPR-28, OPR-42, and OPR-43 - as well as
some bonus documents - namely OPR-000001, OPR 3, OPR-7-10,
and OPR-39. See ECF No. 278 (Def. MSJ) at 3-4; Def.
MSJ, Attach. 5 (Stmt. of Facts), ¶¶ 1-9; Def. MSJ,
Attach. 4 (Declaration of Margaret S. McCarty), ¶¶
3-5. Today Plaintiff again contests the Exemption 5
redactions. See ECF No. 280 (Pl. Cross-Mot.) at
19-20. He also brings to the attention of the Court several
documents that OPR has withheld under Exemption 5, which
avoided explicit designation in the prior Opinions.
See ECF No. 283 (Pl. Reply) at 3-4.
there are two issues between the parties that were not part
and parcel of the D.C. Circuit opinion: documents unearthed
in a supplemental OPR search and nine pages redacted by
EOUSA. Following the D.C. Circuit opinion, OPR conducted
another search, which revealed 126 pages of new records that
reference AUSA Wheeler. See McCarty Decl.,
¶¶ 6-14. It promptly turned over the bulk of these
documents, withholding 25 pages, some in full and most in
part. Id., ¶ 15. Bartko claims more should have
been turned over. The remaining nine pages redacted by EOUSA
are not unfamiliar to this Court. Those redactions were fully
addressed - and found to be proper - in two of this
Court's prior decisions. See Bartko v. U.S. Dep't
of Justice, 2019 WL 2996534, at *3 (D.D.C. July 9,
2019); Bartko v. U.S. Dep't of Justice, 2018 WL
4608239, at *10-11 (D.D.C. Sept. 25, 2018). Still
dissatisfied, Bartko wants to re-hash this issue one more
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). A genuine issue of material fact is one
that would change the outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). In the event
of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable
to the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
cases typically and appropriately are decided on motions for
summary judgment, and the agency bears the ultimate burden of
proof. See Defenders of Wildlife v. Border Patrol,
623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S.
Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.
2007); see also U.S. Dep't of Justice v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989). And
“[u]nlike the review of other agency action[, ] . . .
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)). 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.'”
Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C.
seeks a thumb drive from the FBI. He also hopes the Court
will reconsider withholdings OPR made under Exemption 5 and
strip the protection of Exemption 6 from its newly released
documents. Bartko's final contention concerns nine pages
that have been partially or fully redacted by EOUSA. The
Court will address each issue in turn.
FBI Thumb Drive
up are the contents of a thumb drive that was produced in
response to “a Grand Jury Subpoena to a third party
individual and contain[s] specific documents sought by the
Grand Jury.” Bartko, 898 F.3d at 72 (citation
and internal quotation marks omitted). The FBI has withheld
the documents, asserting Exemptions 3, 6, and 7(C).
See ECF No. 128 (Sixth Supplemental Declaration of
David Hardy), ¶¶ 4-7. This Court in 2015 initially
held that the ...