Bartko v. U.S. Dep't of Justice, Civil Action No. 13–1135 JEB

62 F.Supp.3d 134

Gregory Bartko, Plaintiff

v.United States Department of Justice, et al., Defendants.

Civil Action No. 13–1135 JEB

United States District Court, District of Columbia.

Signed August 5, 2014

Gregory Bartko, Yazoo City, MS, pro se.

Claire M. Whitaker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Plaintiff Gregory Bartko is currently serving the fourth year of a 23–year prison term for conspiracy, mail fraud, and selling unregistered securities. Driven by his belief that the Department of Justice—and, in particular, Clay Wheeler, the Assistant U.S. Attorney who secured his 2010 conviction—withheld evidence crucial to his defense and engaged in a “pattern of tainted prosecutions,” Bartko sent Freedom of Information Act requests to a coterie of federal agencies asking for, inter alia, records of investigations or complaints against Wheeler, as well as documents that might concern Bartko and others who were involved in his case.

Different agencies and their components responded in different ways. The two agencies that now move for summary judgment—DOJ's Office of Professional Responsibility and the Federal Bureau of Investigation—released some documents, withheld some in whole or in part, and issued a so-called “Glomar response” refusing to confirm or deny the existence of others. Bartko then brought this pro se suit against multiple governmental entities, and a series of motions for summary judgment has now been filed. This Opinion addresses only the Cross–Motions filed by OPR, the FBI, and Bartko. In their Motion, OPR and the FBI maintain that privacy concerns relating to AUSA Wheeler and others justify Defendants' refusal to produce many of the records Bartko seeks; in addition, they contend that other records are protected because they are related either to grand-jury proceedings or to ongoing criminal investigations. Agreeing with some of those arguments but finding most wanting, the Court will grant in part and deny in part the Cross–Motions for Summary Judgment.

I. Background

Gregory Bartko was a successful securities lawyer, investment banker, and broker. So successful, in fact, that the leaders of several North Carolina private-equity funds asked him to organize a scheme that would secure money from investors. See United States v. Bartko, 728 F.3d 327, 333 (4th Cir.2013). For nearly two years beginning in January 2004, Bartko worked with at least three others to solicit such investments—fraudulently, it turns out—right up until the SEC got involved. Eventually convicted of six counts of fraud and other securities violations, Bartko received a 272–month sentence in 2010. Id. at 334.

Between 2012 and 2013, seeking to gain access to documents that would prove his innocence—or, at the very least, demonstrate prosecutorial misconduct—Bartko submitted FOIA requests to no fewer than seven federal agencies and subagencies. At issue in this Opinion, however, are inquiries he made to just two agencies: the Federal Bureau of Investigation, which Bartko expected to possess records relating to certain witnesses and others involved in his prosecution; and the Department of Justice's Office of Professional Responsibility, which Bartko thought might have records of its own investigations into allegations of AUSA Wheeler's prosecutorial misconduct.

The specifics of the FOIA requests were unremarkable. From the FBI, Bartko sought records regarding himself, three of his co-conspirators and their corporate alter egos, and one other witness. See Mot., Att. 2 (Declaration of David Hardy), Exh. A, ¶ 5. Of OPR, he asked only a copy of the agency's operating regulations and all records pertaining to former AUSA Wheeler. See Mot., Att. 1 (Declaration of Ginae Barnett), ¶¶ 6–8.

The FBI's response was swift, if somewhat glib. With regard to Bartko and Wesley Covington—a witness who was deceased by the time of the request—the agency released some eight hundred-plus documents in whole or in part, and it withheld more than three hundred in full. To justify those withholdings, it invoked FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E), as well as a Privacy Act exemption not relevant here. See Hardy Decl., Exh. Y. In contrast, however, the Bureau refused even to search for records relating to Bartko's three coconspirators on the ground that they had not waived their privacy interests and that FOIA's personal-privacy exemptions—6 and 7(C)—thus barred disclosure.See Hardy Decl., Exhs. G, H, I, J, K.

OPR, for its part, immediately released its operating regulations and identified seven responsive documents, which related to a complaint Bartko himself had filed against Wheeler. Barnett Decl., ¶¶ 9–10. The agency released five of those documents in full and withheld two in part pursuant to Exemptions 5, 6, and 7(C). Id. As for any other potentially responsive records relating to Wheeler, OPR was more guarded. Instead of invoking a particular exemption, the Office issued a Glomar response—a relatively esoteric FOIA device whose contours the Court will explore in some detail below—refusing to confirm or deny that any such records existed at all because to do so would violate Wheeler's interest in keeping private the fact that OPR had investigated him (or not), including in connection with Bartko's prosecution. See id. Exh. D.

After some further procedural steps—the Court will spare the reader—Bartko filed this suit asking the Court to compel the FBI, OPR, and the other relevant agencies to grant him access to the documents he requested. The agencies moved for summary judgment, Bartko cross-moved, some of the agencies replied, Bartko replied to some of the agencies, and now, mercifully, we have arrived at what will likely be the first of several Opinions addressing something approximating the merits of the case.

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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. 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). In FOIA cases, the agency bears the ultimate burden of proof. See Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). 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).

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 Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). “The basic purpose of FOIA is 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, 110 S.Ct. 471, 107 L.Ed.2d 462 (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 5 U.S.C. § 552(a)(4)(B) ; Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

“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, 109 S.Ct. 1468 (quoting 5 U.S.C. § 552(a)(4)(B) ). “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 Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ).

In addition to the main ticket—OPR's Glomar response and the propriety of the agencies' withholdings under several exemptions—the parties have teed up a litany of picayune issues for the Court. These include whether the agencies responded to Bartko's FOIA requests in a timely manner, whether Bartko was eligible for a fee waiver, and whether certain Government declarations are admissible. The Court sides with Bartko on several of the big questions; as a result, it will not grant summary judgment for either side today. Because the case will proceed, the Court may reserve judgment on these remaining issues for another day, in the event they remain disputed.

A. OPR's Glomar Response

Generally, an agency must respond to a FOIA...