Bartko v. United States Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY BARTKO,

Plaintiff, v. Civil Action No. 17-781 (JEB) UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, et al.,

Defendants.

MEMORANDUM OPINION

Another day, another Opinion in this long-running Freedom of Information Act dispute

between pro se Plaintiff Gregory Bartko and various branches of the federal government. In

today’s installment, Defendant Executive Office for United States Attorneys seeks partial

summary judgment as to one of Bartko’s FOIA requests. EOUSA contends that it properly

withheld portions of select documents under FOIA’s deliberative-process privilege and in

compliance with this Court’s September 25, 2018, Order. Bartko disagrees, claiming that the

government-misconduct exception vitiates EOUSA’s claim to the privilege. He also believes

that the Government has not provided him with the full tranche of documents it owes him.

Plaintiff’s first objection was already answered by this Court in its September 2018 Opinion, and

his second is not convincing given additional production by the Government. As a result, the

Court will grant EOUSA’s Motion for Partial Summary Judgment.

1 I. Background

The facts underlying Bartko’s claim need no retelling; new readers may review this

Court’s several prior Opinions on the topic. See, e.g., Bartko v. Dep’t of Justice, 2018 WL

4608239 (D.D.C. Sept. 25, 2018); Bartko v. Dep’t of Justice, 62 F. Supp. 3d 134 (D.D.C. 2014).

At issue today is Bartko’s FOIA Request No. 2015-759, in which he sought records of

misconduct committed by Assistant United States Attorney Clay Wheeler, who successfully

prosecuted him for criminal fraud in the Eastern District of North Carolina. See Bartko, 2018

WL 4608239, at *2. After processing and releasing certain records, the Department of Justice’s

Office of Professional Responsibility referred 320 additional pages to EOUSA. Id. at *3–4.

Invoking several FOIA exemptions, EOUSA withheld the records in full. Id. at *2. Plaintiff, in

turn, filed suit. He asked this Court to order the agency to hand over the records, and both sides

sought summary judgment.

In its September 25, 2018, Opinion, the Court found that the agency had properly

withheld a series of documents under Exemption 5’s deliberative-process privilege, which

“shields internal ‘agency advisory opinions, recommendations and deliberations’ in order to

‘protect the decision making processes of government agencies.’” Id. at *5 (quoting NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). Specifically, the Court held that the agency

had properly withheld 13 documents spanning 14 pages: OPR-12, OPR-13, OPR-14, OPR-15,

OPR-16, OPR-17, OPR-19, OPR-20, OPR-21, OPR-22, OPR-23, OPR-23(a), and OPR-24. Id.

In so holding, it rejected Bartko’s argument that government misconduct rendered the

deliberative-process privilege inapplicable. Id. at *5–6. “Assuming Bartko’s allegations of

misconduct rise to the appropriate level,” the Court wrote, “they still do not vitiate the

deliberative-process privilege under these circumstances.” Id. at *6. The Court nonetheless

2 ordered the agency to either show that all material within the documents was not reasonably

segregable for partial release or to release any non-exempt portions. Id. at *10–11.

EOUSA then took a mulligan and reconsidered its withholding determinations for those

above-listed records. On December 3, 2018, it released to Plaintiff portions of the 14 pages. See

ECF No. 70 (Gov’t Partial MSJ), Attach. 2 (Declaration (Third) of Tricia Francis), ¶ 2; see also

id., Exh. B (December 3, 2018, Letter). Following that reevaluation, the agency argues it has

now “redacted only the portions of these records that reflect inter-agency consultations.” Gov’t

Partial MSJ at 4. It continues to invoke Exception 5’s deliberative-process privilege for the

redacted portions, which it claims are now properly withheld. Id. EOUSA also redacted direct

phone numbers of certain Assistant United States Attorneys under Exemption 6, which protects

“personnel and medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.” Id. at 5 (quoting 5 U.S.C. § 552(b)(6)). Considering

its work complete, EOUSA filed for partial summary judgment as to Request No. 2015-759 on

April 4, 2019.

Bartko is not on board, however, and he responded on April 23 with an Opposition and

Cross-Motion for Summary Judgment. See ECF No. 76. He does acknowledge that the AUSAs’

direct phone numbers are properly withheld under Exemption 6. Id. at 7. He also agrees that the

deliberative-process privilege applies to the Government’s redactions in the 14 pages it has

released. Id. at 10 (“Bartko does not challenge the EOUSA’s assertion that the redacted parts of

the subject emails are deliberative and pre-decisional, the two necessary elements that determine

whether the deliberative process privilege applies.”). Instead, he raises two points of contention,

which this Court resolves today: first, whether the government-misconduct exception overcomes

3 the deliberative-process privilege here; and second, whether any portions of EOUSA’s release

remain unaccounted for.

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 (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; 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 non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477

U.S. at 248; 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 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment.

See Brayton v. Office of the U.S. Trade Representative, 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)

4 (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) (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.’” 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)).

III. Analysis

Plaintiff mounts two challenges here. First, he argues that EOUSA’s remaining

redactions are improper because government misconduct renders the deliberative-process

privilege inapplicable. Second, he contends that the Government has not explained the

whereabouts of 34 pages of records. The Court considers each in turn.

A. Deliberative Process and Government Misconduct

Plaintiff first posits that Exemption 5’s deliberative-process privilege is superseded by

the government-misconduct exception. This argument, however, is indistinguishable from the

one the Court has already decided in its September 25, 2018, Opinion: “Bartko principally

maintain[ed] that the deliberative-process privilege [was] inapplicable to [the same set of]

documents because of the ‘government misconduct’ exception.” Bartko, 2018 WL 4608239, at

*5. The Court rejected that argument: “Assuming Bartko’s allegations of misconduct rise to the

appropriate level, they still do not vitiate the deliberative-process privilege under these

circumstances.” Id. at *6. That Opinion fully answers Plaintiff’s objections.

5 Bartko nonetheless today reiterates that government misconduct occurred here and should

not escape scrutiny. But the Court has already held that these exact documents, from this exact

request, contain no discussions that manifest any such misconduct. Id. Plaintiff’s extensive

briefing on this point raises only issues the Court has already addressed; it makes no other

argument as to why the privilege should not apply. See Pl. Cross-Motion at 10–12. The Court

will thus grant EOUSA’s Motion for Partial Summary Judgment with respect to its Exemption 5

redactions.

B. Missing Pages

Down but not yet out, Bartko offers a second objection: that the Government continues to

withhold 34 of the 320 pages of records it owes him. An accounting of Request No. 2015-759,

however, finds that the Government has met its production burden. EOUSA released 234 pages

to Bartko on November 19, 2018. It then released 14 redacted pages on December 3, 2018; 54

full pages on March 11, 2019; and one full page on April 3, 2019. See Francis Decl., Exhs. A–D.

The count thus stood at 303 pages. The Court held last year that EOUSA had properly withheld

one six-page document under Exemption 5. See Bartko, 2018 WL 4608239, at *4. That brings

the number of accounted-for pages up to 309. To ensure Plaintiff received all of these released

pages (minus the six withheld), EOUSA sent him a disk containing all these documents along

with additional paper copies. See ECF No. 82 (Gov’t Reply) at 3.

In its Reply, the Government produced 29 additional pages from two documents — a

printout of a Fourth Circuit decision (OPR-14(f)) and the Eastern District of North Carolina’s

Criminal Discovery Policy (OPR-23(a)). Id., Exhs. A–B. That release brings the total to 338 —

18 above the requisite 320. EOUSA explains the over-release by admitting it inadvertently

produced 18 pages from OPR-20(a) twice. Id. at 3 n.1. Subtracting those 18 pages brings the

6 total to 320. While EOUSA wins no awards for bureaucratic efficiency, it nonetheless has met its

production burden with regard to this FOIA request.

IV. Conclusion

For these reasons, the Court will grant Defendant’s Motion for Partial Summary

Judgment. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 9, 2019