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

128 F.Supp.3d 62

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 18, 2015

Gregory Bartko, Yazoo City, MS, pro se.

Claire M. Whitaker, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Plaintiff Gregory Bartko, currently serving a 23–year prison sentence for securities fraud, is seeking to exonerate himself by proving prosecutorial misconduct. To that end, he has brought this pro se suit under the Freedom of Information Act against many Department of Justice components, including the Office of Professional Responsibility. This Court has already issued several other Opinions discussing the merits of related FOIA requests in this case. See, e.g., Bartko v. Dep't of Justice, No. 13–1135, 79 F.Supp.3d 167, 2015 WL 513272 (D.D.C. Feb. 9, 2015). This Opinion addresses the latest dispute between Bartko and OPR.

In seeking summary judgment, OPR asserts that it has released all of the responsive documents that Plaintiff is entitled to receive and has properly withheld others pursuant to certain FOIA exemptions. Bartko, conversely, believes that he is entitled to summary judgment and requests that the Court compel the agency to release all withheld records. The Court sides with OPR.

I. Background

As a prior Opinion set forth in some detail the factual background of this suit, see Bartko v. Dep't of Justice, 62 F.Supp.3d 134, 138–40 (D.D.C.2014), the Court will now describe only those events that directly relate to the present Cross–Motions.

In early 2013, Plaintiff submitted FOIA requests to no fewer than seven federal agencies and components, seeking information relating to his prosecution so that he could file a habeas petition. See id. at 139. Dissatisfied with the substantive responses and lack of promptness displayed by the government, he brought suit in this Court. Two years and countless rounds of briefing later, Plaintiff and the Defendant agencies have finally begun to narrow their disagreements concerning those agencies' compliance—or lack thereof—with FOIA.

OPR, the Defendant agency at issue here, initially resisted disclosure when responding to Bartko's request; in fact, it issued a Glomar response, thereby refusing to confirm or deny the existence of the documents that Plaintiff sought. See id. at 141–44; Phillippi v. CIA, 546 F.2d 1009, 1011–13 (D.C.Cir.1976)(explaining that Glomar responses are exceptions to general rule that agencies must acknowledge the existence of responsive information and explain why it has been withheld). Finding this response inappropriate, the Court, on August 5, 2014, required OPR to search for records relating to its then-ongoing investigation into Assistant U.S. Attorney Clay Wheeler, the lead prosecutor in Bartko's criminal trial. See Bartko, 62 F.Supp.3d at 144. To comply with that order, OPR conducted a search later that month and identified 441 pages of responsive documents. See Mot., Exh. 1 (Fourth Declaration of Ginae Barnett), ¶¶ 3–11. Because the investigation into Wheeler was still ongoing at that time, the agency experienced some delays in processing the records; the Court consequently gave OPR until the end of January 2015 to complete the task. See ECF No. 124 (Order of December 11, 2014) at *2–3.

Having processed these 441 pages of records, OPR produced to Plaintiff one page in full and 12 in part, with redactions made pursuant to various FOIA exemptions. See Fourth Barnett Decl., ¶ 8. It also withheld in full 102 pages and provided a Vaughn Index specifying which exemptions it relied upon in these 114 total pages. See id. Tab D; see also Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.Cir.1975)(establishing practice of using the now-named Vaughn Index). Finally, OPR referred six pages to the Office of the Inspector General and 320 pages to the Executive Office of U.S. Attorneys. See Fourth Barnett Decl., ¶¶ 8–11.

Now that it has produced some records, withheld others, and referred the bulk of them to other components, OPR believes that it has satisfied its FOIA obligations and seeks summary judgment. Bartko, by contrast, believes that he is entitled to summary judgment and moves to compel the release of all of the withheld documents. After reviewing the briefing in the case, the Court ordered OPR to provide the 114 disputed pages to the Court for in camera review. See Minute Order of June 30, 2015. The agency complied, and the Court has now reviewed all of the documents.

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). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992)(citation omitted).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they "describe 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." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009)(citation omitted). 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)(internal quotation marks and citation omitted). "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.' " Dep't of Justice v. Reporters Comm. for the Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)(quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Congress enacted FOIA in order "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, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)(quotation marks and 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 id. § 552(a)(4)(B); Reporters Comm., 489 U.S. at 754–55, 109 S.Ct. 1468. "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)).

Although the parties' Cross–Motions are, at times, difficult to follow inasmuch as they often talk past each other, the Court can discern two separate issues: (1) whether only 114 pages (or some larger number) are in dispute and (2) the propriety of the withholdings on these pages. The Court will address the issues separately, noting first that Bartko does not dispute the adequacy of OPR's search, but only its withholdings.

A. Scope of Dispute

The parties cannot agree on which documents are at issue in this round of briefing, but they have identified four potential categories:

• 102 pages withheld in full (plus an additional twelve withheld in part), located in response to FOIA request F13–00032. See Def. Opp. & Reply at 3; Fourth Barnett Decl., ¶¶ 8–14;

• 320 pages referred by OPR to EOUSA, located in response to FOIA request F1300032. See Pl. Cross–Mot. & Reply, Exh. 3 (Plaintiff's Letter of December 26, 2014) at 1–2;

• 610 pages referred by OPR to EOUSA, located in response to FOIA request F1400098. See id.; Def. Opp. & Reply at 2–3;

• 166 pages, whose whereabouts are currently unknown, located in response to FOIA request F14–00098. See Pl. Cross–Mot. & Reply at 7; Def. Opp. & Reply at 3.

Although Bartko and OPR, thankfully, concur that the propriety of the withholdings for the first set of documents—the 114 pages withheld in full or in part—is currently before the Court, they part ways as to whether the remaining categories are properly the subject of these Motions.

The second and third batches—collectively 930 pages—were referred by OPR to EOUSA pursuant to DOJ regulation, which provides:

When the

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