Bartko v. U.S. Dep't of Justice

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

Civil Action No. 13-1135 (JEB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 2, 2019

MEMORANDUM OPINION

Pro 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.

I. Background

Plaintiff, 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 EOUSA.

For the 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.

Portions 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.

Finally, 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 time.

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). 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).

FOIA 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. § 552(a)(4)(B)).

III. Analysis

Plaintiff 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.

A. FBI Thumb Drive

First 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 thumb-drive records were properly withheld, relying primarily on Exemption 3. After viewing the documents in camera, it concluded that it was

satisfied that the records were properly withheld as containing information about the names of recipients of federal grand-jury subpoenas; information that identifies specific records subpoenaed by a federal grand jury; and copies of specific records provided to a federal grand jury in response to such a subpoena. In light of this, the FBI appropriately declined to articulate the precise contents of the thumb drive so as to avoid "reveal[ing] statutorily protected Federal Grand Jury information."

Bartko, 2015 WL 9272833, at *4 (citations omitted). While it focused primarily on Exemption 3, the Court mentioned that, in the alternative, Exemption 7(C) would also authorize the withholding: "[E]ven if Exemption 3 did not protect the thumb drive, the documents located there would be covered under Exemption 7(C)." Id. at *7.

After this Court's decision, the Court of Appeals took up a plethora of Bartko's claims. Regarding the thumb drive specifically, it remanded for further consideration of Exemption 3given the intervening case of Labow, 831 F.3d 523. See Bartko, 898 F.3d at 73. The Labow decision clarified that Exemption 3 protects only those documents that "would reveal to the requester that they had been subpoenaed," as opposed to documents that "would not necessarily reveal a connection to a grand jury." Id. (quoting Labow, 831 F.3d at 529). The crucial question when considering whether Exemption 3 is appropriate is thus "whether the release of the documents subpoenaed by the grand jury would reveal something about the grand jury's investigation." Labow, 831 F.3d at 530.

After remand from the Court of Appeals, the FBI first agreed to process the thousands of documents from the thumb drive. It noted that this would take a "significant amount of time" and agreed to report to the Court about its progress every 90 days. See ECF No. 271 (Def. Resp. Mot. to Compel) at 3....