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

167 F.Supp.3d 55

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 March 3, 2016

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

This Opinion is the latest installment in the quest of pro se Plaintiff Gregory Bartko to recover documents from federal agencies that he believes may help him overturn his conviction for conspiracy, mail fraud, and selling unregistered securities. Presently serving a 23-year sentence for these charges, Bartko has spent the last three years filing Freedom of Information Act requests with, inter alia , the Department of Justice, the Federal Bureau of Investigation, and the United States Postal Inspection Service, and litigating the same—with varying degrees of success.

This Opinion concerns only the FOIA request Bartko filed with USPIS. The Court previously found that agency's search for responsive documents inadequate and its explanation for withholding some materials wanting. USPIS now returns with a more robust justification for its treatment of Bartko's request and its withholding of certain responsive materials. Although Bartko remains displeased with his yield, the Court is satisfied that the agency has now fulfilled its obligations under the statute.

I. Background

The Court has issued numerous Opinions relating to Bartko's FOIA requests. See, e.g., Bartko v. Dep't of Justice, 2015 WL 9272833 (D.D.C. Dec. 18, 2015). It will not, therefore, recount the many twists and turns this matter has taken over the years or the details of its prior holdings. The Court here instead provides only the CliffsNotes version of events: Bartko, a securities attorney, investment banker, and broker, was convicted after trial of various mail-fraud and securities-related charges. See United States v. Bartko, 728 F.3d 327, 334 (4th Cir.2013) (affirming conviction and denying motions for new trial). In 2010, he was sentenced to 272 months' imprisonment. Id. While in jail, he embarked on a journey to uncover evidence that could prove his innocence or, alternatively, demonstrate prosecutorial misconduct. He submitted similar FOIA requests to seven federal agencies, seeking records of their investigation and prosecution of him. See Bartko v. Dep't of Justice, 62 F.Supp.3d 134, 139 (D.D.C.2014). The Court will focus only on the request Bartko filed with USPIS on January 7, 2013, which sought “all records and/or data contained in the files of [the] agency and specifically under [Bartko's] name and/or identifier assigned to [his] name,” including but not limited to

(1) arrest records; (2) investigation and/or investigatory reports; (3) reports or evidentiary and/or scientific information and findings; (4) wants, warrants, and/or detainers; (5) final and closing investigation reports; (6) reports and information from all other federal or state governmental agencies which were acquired by [USPIS] during any investigation; and (7) any and/or all information, data, or reports not otherwise exempt by statute or regulations adopted by [USPIS].

Prior MSJ (ECF No. 145), Attach. 1 (Declaration of Kimberly Williams), Exh. A (FOIA Request).

On March 14, 2013, the agency responded by releasing in part 36 pages of responsive materials, withholding 692 pages as exempt from disclosure, and informing Bartko that 281 additional pages of responsive materials would be forwarded to the originating agencies. See id. Williams Decl., Exh. D (March 14, 2013, Letter from USPIS to Bartko) at 1. The agency invoked FOIA Exemptions 6, 7(C), and 7(D) as the bases for its withholdings and redactions. See id. After exhausting his administrative remedies, Bartko filed suit in this Court, seeking to compel disclosure of the withheld materials and challenging the adequacy of the agency's search. See ECF No. 1 (Complaint).

In mid-2014, USPIS and Bartko cross-moved for partial summary judgment, but the agency withdrew its motion after the Court denied summary judgment to the FBI in parallel litigation around another one of Bartko's requests. See ECF Nos. 58, 65, 116. In early 2015, USPIS filed a renewed motion for summary judgment, and Plaintiff also renewed his cross-motion. See ECF Nos. 145, 152. In a Memorandum Opinion and separate Order on June 2, 2015, the Court granted in part and denied in part Bartko's summary-judgment motion and denied USPIS's motion. See ECF Nos. 184 (USPIS Order), 185 (USPIS Opinion).

The Court found that USPIS had not established that its search was reasonably calculated to uncover all responsive materials and advised it “to submit new documentation that demonstrates the adequacy of its search.” USPIS Opinion at 15. The Court also deemed insufficient the agency's justifications for its withholdings, labeling the invocations of Exemptions 6, 7(C), and 7(D) imprecise and conclusory. See id. at 10-15. It counseled the agency to “furnish the Court with full explanations of its withholdings under all relevant FOIA exemptions for any records and redacted portions not made available to Plaintiff” so that the Court would be equipped to “determine the propriety of such exemptions and resolve the parties' competing Motions on those issues.” Id. at 15.

Two months later, Bartko filed a Motion for Leave to Conduct Limited Discovery with USPIS. See ECF No. 195 (Disc. Mot.). Shortly thereafter, USPIS filed yet another Motion for Summary Judgment, see ECF No. 204 (Mot.), and Bartko did the same. See ECF No. 211 (Cross-Mot.). These three Motions are presently before the Court. To aid in its determination, the Court ordered the government to provide the disputed pages for in camera review, see Minute Order of Feb. 8, 2016, which review is now complete.

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) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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 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 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 “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...