Gregory Bartko v. DOJ , 898 F.3d 51 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2018 Decided August 3, 2018
No. 16-5333
GREGORY BARTKO,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01135)
Sophia M. Brill, appointed by the court, argued the cause
as amicus curiae in support of appellant. With her on the
briefs were Brian M. Matsui and Deanne E. Maynard.
Gregory Bartko, pro se, filed the briefs for appellant.
Joshua M. Kolsky, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Alessio
Evangelista, Principal Assistant U.S. Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney.
Before: GRIFFITH, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by MILLETT, Circuit Judge.
2
MILLETT, Circuit Judge: “Whatever it takes, this
behavior must stop.” So ordered the United States Court of
Appeals for the Fourth Circuit in United States v. Bartko, when
it was confronted with “repeat offense[s]” of prosecutorial
misbehavior and discovery improprieties by the United States
Attorney’s Office for the Eastern District of North Carolina,
including by Clay Wheeler, a high-level prosecutor in Gregory
Bartko’s case. 728 F.3d 327, 343, 341 (4th Cir. 2013).
Concluding that the frequent recurrence of prosecutorial
missteps in that office “raise[d] questions regarding whether
the errors are fairly characterized as unintentional,” the Fourth
Circuit took the extraordinary step of referring the matter to the
United States Department of Justice’s Office of Professional
Responsibility (“OPR”) for further investigation of the
allegations of professional misconduct. Id. at 342–343.
After Bartko was convicted in a case beset by prosecutorial
misfeasance, he filed multiple Freedom of Information Act
(“FOIA”) requests with OPR and other relevant agencies
seeking to learn the results of investigations into Wheeler.
See 5 U.S.C. § 552 et seq. OPR categorically refused to
acknowledge the existence of, let alone disclose, any
potentially relevant documents outside of Bartko’s individual
case. And even with respect to Wheeler’s conduct in Bartko’s
case, OPR held back substantial amounts of material, asserting
a sweeping breadth for its claimed exemptions. Because
circuit precedent foreclosed OPR’s approach, and because
OPR failed to justify multiple withholdings, we reverse the
district court’s judgment in favor of OPR with respect to its
invocations of Exemption 7(C), and the district court’s decision
to deny a fee waiver to Bartko. We also remand with
instructions for the district court to reconsider its decision with
respect to the FBI’s withholding of records pursuant to
Exemption 3 in light of recent circuit precedent. On all other
3
matters, we affirm the district court’s entry of summary
judgment in favor of the defendant agencies.
I
A
The events giving rise to this appeal stem from a criminal
prosecution in a district not too far from here. Gregory Bartko
was an Atlanta-based securities lawyer, investment banker, and
broker. In the early 2000s, he created and managed two
private equity funds, the Caledonian Fund and the Capstone
Fund. Over the next half-decade, Bartko fleeced investors out
of more than a million dollars under the false pretense that their
investments were fully insured with a guaranteed return.
Bartko’s luck ran out when the Securities and Exchange
Commission caught wind of the scam and began to examine
the Caledonian and Capstone Funds. The ensuing
investigation resulted in a criminal prosecution by the U.S.
Attorney’s Office for the Eastern District of North Carolina.
The then-Chief of the Economic Crimes Section, Assistant
U.S. Attorney Clay Wheeler, prosecuted Bartko for (i)
conspiracy to commit mail fraud and to engage in unlawful
monetary transactions in violation of 18 U.S.C. § 371; (ii) mail
fraud in violation of 18 U.S.C. §§ 1341 and 1342; and (iii) the
sale of unregistered securities in violation of 15 U.S.C. §§ 77e,
77x, and 18 U.S.C. § 2. After a thirteen-day trial, a jury
convicted Bartko on all counts. In 2010, Bartko was
sentenced to 272 months of imprisonment. See Bartko, 728
F.3d at 331, 334; see also Gregory Bartko v. SEC, 845 F.3d
1217, 1221 (D.C. Cir. 2017) (describing Bartko’s criminal
activities).
Months after the jury announced its verdict, Bartko
discovered that Wheeler had made multiple, serious
4
prosecutorial missteps in the case. Specifically, Wheeler
failed to disclose significant impeachment evidence—deals
that the government had struck with witnesses in advance of
their testimony. See Giglio v. United States, 405 U.S. 150,
155 (1972); see also Brady v. Maryland, 373 U.S. 83, 87
(1963). In addition, the prosecution allowed a government
witness (Bartko’s co-conspirator) to testify falsely that he had
not received any inducement from the government in exchange
for his testimony, even though the government actually had
made promises to him. See Napue v. Illinois, 360 U.S. 264,
270 (1959); see generally Bartko, 728 F.3d at 337–341.
In light of those developments, Bartko moved for a new
trial claiming violations of his due process rights under the
Fifth Amendment. The district court denied Bartko’s motion.
The Fourth Circuit affirmed on the narrow ground that the
undisclosed evidence and witness testimony was cumulative of
the overwhelming untainted evidence, and so the governmental
missteps would not have affected the final outcome of the trial.
See Bartko, 728 F.3d at 331–332, 337.
But the court of appeals did not end its decision there.
Pointing to a slew of disturbing recent cases, the court
specifically noted the “frequency of [discovery] ‘flubs’
committed” by the U.S. Attorney’s Office for the Eastern
District of North Carolina, which “raise[d] questions regarding
whether the errors [we]re fairly characterized as unintentional.”
Bartko, 728 F.3d at 341. With respect to Bartko’s case in
particular, the court expressed deep skepticism about counsel’s
“farfetched assertion” when asked about the misbehavior. Id.
at 342.
The court also worried that “[r]emedies elude” individual
defendants because egregious violations “ultimately prove
immaterial to the verdict.” Bartko, 728 F.3d at 342. The
5
frequent affirmance of criminal convictions on that basis, the
court explained, causes the government to believe that it can
withhold with impunity material that it is constitutionally
required to disclose. Just because “such practices [may be]
‘harmless’ as to a specific defendant’s verdict,” the court
continued, “they are anything but harmless” for “litigants in the
Eastern District of North Carolina and our justice system at
large[.]” Id.
Concluding that the U.S. Attorney’s Office “is
uninterested in placating concerns” and “seems unfazed by the
fact that discovery abuses violate constitutional guarantees and
misrepresentations erode faith that justice is achievable[,]” the
court declared that “[s]omething must be done.” Bartko, 728
F.3d at 342. “To underscore [its] seriousness about this
matter,” the Fourth Circuit ordered the Clerk of Court to “serve
a copy of [its] opinion upon the Attorney General of the United
States and the Office of Professional Responsibility[,]” which
handles allegations of misbehavior by Justice Department
attorneys. Id.
Faced with that sharp censure, the U.S. Attorney’s Office
responded by petitioning the court for rehearing, specifically
requesting that the court “reconsider its suggestion that
discovery errors in our office are intentional [and] that
[Assistant U.S. Attorney Wheeler] intentionally ignored false
testimony.” Gov’t’s Pet. for Reh’g 2, Docket No. 12-4298,
ECF No. 105. In its filing, the U.S. Attorney’s Office
“admit[ted]” to “some discovery failures on [its] part,” id. at 3,
and informed the court that it was instituting changes to its
“[d]iscovery [p]ractices in [r]esponse to the [c]ourt’s
[c]oncerns,” id. at 4. Specifically, the U.S. Attorney’s Office
announced that, effective August 1, 2013, Assistant U.S.
Attorneys must:
6
(1) personally review the files of each
investigative agency involved with the
investigation (rather than relying upon
the agency’s response to [the Office’s]
requests for discoverable material), and
(2) meet with their supervisor to discuss this
review and all potential discovery issues
in the case.
Id. The U.S. Attorney’s Office also “created new systems,
protocols, and rules to comply with [its] reformulated
discovery practices.” Id. at 5. The Fourth Circuit denied the
U.S. Attorney’s Office’s rehearing petition.
B
“The FOIA was enacted to ensure public access to a wide
range of government reports and information.” Rural
Housing Alliance v. United States Dep’t of Agriculture, 498
F.2d 73, 76 (D.C. Cir. 1974). It “was designed to pierce the
veil of administrative secrecy and to open agency action to the
light of public scrutiny.” Citizens for Responsibility & Ethics
in Washington (“CREW”) v. Department of Justice, 746 F.3d
1082, 1088 (D.C. Cir. 2014) (quotation marks omitted).
While transparency and government accountability are at
the heart of FOIA’s mandate, Congress exempted certain
categories of records from disclosure to protect important
governmental and private interests in confidentiality. As
relevant here, FOIA allows the government to withhold from
disclosure information “compiled for law enforcement
purposes * * * [that] could reasonably be expected to constitute
an unwarranted invasion of personal privacy,” 5 U.S.C.
§ 552(b)(7)(C), or that is “specifically exempted from
7
disclosure by [another] statute[,]” id. § 552(b)(3), such as
material presented to a grand jury, FED. R. CRIM. P. 6(e).
FOIA Exemption 6 separately shields “personnel and medical
files and similar files” when their disclosure “would constitute
a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The agency bears the burden of proving that an
exemption applies. CREW, 746 F.3d at 1088.
Even when an exemption applies, the agency is obligated
to disclose “[a]ny reasonably segregable portion of a record”
after removing the exempt material and must note the “amount
of information deleted, and the exemption under which the
deletion is made.” 5 U.S.C. § 552(b).
An agency is permitted to charge a requester “reasonable”
document search and duplication fees, 5 U.S.C.
§ 552(a)(4)(A)(ii)(III), but such fees will be waived or reduced
if “disclosure of the information is in the public interest,” id.
§ 552(a)(4)(A)(iii). The public-interest fee waiver requires
that the released information be “likely to contribute
significantly to public understanding” of government activities
and not be “primarily in the commercial interest of the
requester.” Id.
C
Between 2012 and 2013, Bartko submitted FOIA requests
to OPR, the U.S. Postal Inspection Service, the Internal
Revenue Service, the Federal Bureau of Investigation, the
Department of Justice’s Executive Office for U.S. Attorneys,
the Department of Treasury, and the Securities and Exchange
Commission. His requests sought government documents
concerning both his case and any other records OPR might
8
possess regarding allegations of prosecutorial misconduct by
Wheeler.
Of relevance here, in January 2013, Bartko submitted a
FOIA request to OPR seeking:
1. Any and all records created by and/or
received by [OPR] in regard to [AUSA]
Clay C. Wheeler, * * * which relate to or
concern violations or alleged violations
by AUSA Wheeler of Section 9.500 et
seq. of the United States Attorneys’
Manual adopted by the Department of
Justice; or the “Ogden Memorandum”
* * * or any ethical duties imposed upon
AUSA Wheeler in his capacity as a
government prosecutor as set forth in the
North Carolina Code of Professional
Conduct * * *.
2. Any and all records in regards to
complaints or allegations made against
AUSA Wheeler with regards to
prosecutorial misconduct before any
grand jury, during any criminal trial or
investigation prior to trial, which
involved the withholding and concealing
of exculpatory evidence and/or the
presentation of false or misleading
evidence during trial.
3. Any and all records maintained by OPR
concerning AUSA Wheeler’s supervision
as an employee of the Department of
Justice, which reflect allegations of
9
attorney misconduct involving violations
of any standard imposed by law,
applicable rules, professional conduct or
Department of Justice policy.
J.A. 209–210.
In response, OPR agreed only to release documents
regarding a matter for which Bartko was the complainant
(seven documents in total). As to everything else, OPR
categorically refused to even confirm or deny the existence of
relevant records—a type of answer to a FOIA request known
as a “Glomar” response. See Phillippi v. CIA, 546 F.2d 1009,
1013 (D.C. Cir. 1976). 1
Dissatisfied with OPR’s blanket refusal and the other
agencies’ responses, Bartko filed suit in the U.S. District Court
for the District of Columbia in July 2013. The district court
required the agency to search for records regarding Wheeler’s
missteps in Bartko’s case but otherwise accepted OPR’s
categorical refusal to respond. See Bartko v. Department of
Justice, 62 F. Supp. 3d 134, 143–144 (D.D.C. 2014). After
conducting a narrowly tailored search, OPR invoked a host of
exemptions to partially or fully withhold documents from
Bartko. The district court approved those withholdings. See
1
The Glomar response takes its name from this court’s decision
upholding the CIA’s refusal to confirm or deny the existence of
records about “the Hughes Glomar Explorer, a ship used in a
classified [CIA] project to raise a sunken Soviet submarine from the
floor of the Pacific Ocean to recover the missiles, codes, and
communications equipment onboard for analysis by United States
military and intelligence experts.” Roth v. Department of Justice,
642 F.3d 1161, 1171 (D.C. Cir. 2011) (internal citation and quotation
marks omitted).
10
Bartko v. Department of Justice, 128 F. Supp. 3d 62, 72–73
(D.D.C. 2015).
After years of back-and-forth between the parties and the
court that resulted in a substantial amount of additional
material being released to Bartko by OPR and the other
defendant agencies, the district court granted summary
judgment in favor of the defendants. Bartko appealed pro se,
and this court appointed an amicus curiae to present arguments
on his behalf. 2
II
This Court reviews a district court’s grant of summary
judgment de novo. Clemente v. FBI, 867 F.3d 111, 116, 119
(D.C. Cir. 2017). Fee waiver denials are likewise reviewed
de novo. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309,
1311 (D.C. Cir. 2003).
Upon review of the record before us, we reverse the district
court’s grant of summary judgment in favor of OPR on its
application of Exemption 7(C) and, in light of intervening
circuit precedent, we remand the issue of whether the FBI’s
application of Exemption 3 was properly justified. We also
reverse the district court’s denial of a fee waiver because
Bartko has successfully shown that the disclosure of the
requested material would be in the public’s interest. As to
Bartko’s other challenges to the agencies’ withholdings and the
scope of their FOIA searches, we affirm.
2
The court thanks court-appointed amicus curiae, Sophia M.
Brill, Deanne E. Maynard, and Brian R. Matsui of Morrison &
Foerster LLP for their assistance in presenting this case.
11
A
Bartko’s FOIA request to OPR sought any records
pertaining to alleged misconduct by Wheeler, but the district
court ruled that OPR need only disclose documents pertaining
to Bartko’s own case. As to the broader aspect of Bartko’s
request, the district court sustained OPR’s Glomar response—
OPR’s blanket refusal to neither confirm nor deny the existence
of other relevant records on the ground that doing so would
reveal law-enforcement information protected from disclosure
under Exemption 7(C). That was error.
A Glomar response to a FOIA request is permitted in that
rare situation when either confirming or denying the very
existence of records responsive to a request would “cause harm
cognizable under an FOIA exception.” Roth v. Department of
Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (internal citation
and quotation marks omitted); see also American Civil
Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013)
(Glomar responses only permitted “in limited circumstances”)
(citation omitted). The question in this case is whether
disclosing even “the existence or nonexistence of the requested
records” is itself information protected by Exemption 7(C).
Roth, 642 F.3d at 1178 (internal alteration omitted).
Because Exemption 7(C) shields from disclosure “records
or information compiled for law enforcement purposes” that
“could reasonably be expected to constitute an unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), to
invoke Glomar, OPR had to make a threshold showing that the
FOIA request seeks records “compiled for law enforcement
purposes.” Jefferson v. Department of Justice, 284 F.3d 172,
176 (D.C. Cir. 2002). OPR also bore the burden of making
an across-the-board showing that the privacy interest the
government asserts categorically outweighs any public interest
12
in disclosure. See Roth, 642 F.3d at 1174. OPR fell short on
both fronts.
1
Documents pertaining to any OPR investigation of alleged
ethics violations by Wheeler do not, on this record, qualify as
protected “law enforcement records,” 5 U.S.C. § 552(b)(7).
The law-enforcement-purpose inquiry focuses “on how and
under what circumstances the requested files were compiled,”
and “whether the files sought relate to anything that can fairly
be characterized as an enforcement proceeding[.]” Jefferson,
284 F.3d at 177 (internal citations and quotation marks
omitted). The purpose of the investigation is “the critical
factor.” Rural Housing Alliance, 498 F.2d at 82.
To qualify as law-enforcement records, the documents
must arise out of “investigations which focus directly on
specifically alleged illegal acts * * * which could, if proved,
result in civil or criminal sanctions.” Rural Housing Alliance,
498 F.2d at 81. Records documenting only “government
surveillance or oversight of the performance of duties of its
employees” do not qualify. Id.; see also Stern v. FBI, 737
F.2d 84, 89 (D.C. Cir. 1984) (Exemption 7 does not shield
internal agency investigations “in which an agency, acting as
the employer, simply supervises its own employees.”). Nor is
the mere possibility of a legal violation sufficient, because
“[a]ny internal auditing or monitoring conceivably could result
in disciplinary action, in dismissal, or indeed in criminal
charges against the employees.” Rural Housing Alliance, 498
F.2d at 81.
Instead, an agency must establish “a rational nexus
between the investigation and one of the agency’s law
enforcement duties,” and “a connection between an individual
13
or incident and a * * * violation of federal law.” Center for
Nat’l Sec. Studies v. Department of Justice, 331 F.3d 918, 926
(D.C. Cir. 2003) (internal citation and quotation marks
omitted). Courts generally afford some deference to agencies
“specializing in law enforcement” that claim their records are
eligible for Exemption 7(C) protection. Id. (internal
quotation marks and alteration omitted).
Because OPR does not “specialize[] in law enforcement,”
its attempt to shield its records under Exemption 7(C) merits
no deference. Campbell v. Department of Justice, 164 F.3d
20, 32 (D.C. Cir. 1998). We have previously “decline[d] to
hold as a matter of law that all OPR records are necessarily law
enforcement records.” Jefferson, 284 F.3d at 178. That is
because one of OPR’s primary responsibilities is to “secure
reports, as distinct from compiling them, that arise as a result
of internal agency monitoring and review allegations of non-
law violations by Department attorneys for internal
disciplinary purposes.” Id. (emphases added). So OPR
bears the burden of showing on a case-by-case basis that any
requested records were actually compiled for law-enforcement,
rather than employment-supervision, purposes. See id.
The government has not come close to showing that all
records (if there are more) involving misconduct allegations
against Wheeler would have been compiled for law
enforcement purposes. Bartko’s FOIA request was broadly
worded to include a wide variety of actual or alleged violations
by Wheeler of the U.S. Attorney’s Manual, the North Carolina
Code of Professional Conduct, and other ethical and legal
obligations. While violations of some of those standards
could conceivably result in civil or criminal sanctions, many of
them would not, and would bear only on internal disciplinary
matters.
14
In addition, Bartko’s request was not even limited to
records resulting from OPR investigations, but included any
records addressing alleged or actual misconduct by Wheeler.
See J.A. 209 (“[R]ecords created by and/or received by [OPR]
* * * which relate to or concern violations or alleged violations
by AUSA Wheeler[.]”) (emphasis added); J.A. 210 (“Any and
all records maintained by OPR concerning AUSA Wheeler’s
supervision as an employee of the Department of Justice, which
reflect allegations of attorney misconduct[.]”) (emphasis
added).
In defense of its sweeping Glomar response, OPR offered
only a bare-bones declaration that “[t]he records requested by
[Bartko] from OPR consist of complaints or allegations of
misconduct which, if they exist, would have been compiled as
part of OPR’s investigations of Department of Justice attorneys
who are alleged to have committed specific acts of professional
misconduct which, if proved, could result in civil or criminal
penalties.” J.A. 207. That is not even in the ballpark. As
we previously held, OPR “cannot rely on a bare assertion to
justify invocation of an exemption from disclosure,” especially
when, as in Bartko’s case, OPR’s responsibilities include
“receiv[ing] as well as generat[ing] reports that may constitute
investigatory records compiled ‘in connection with
government oversight of the performance of duties by its
employees.’” Jefferson, 284 F.3d at 179 (citation omitted);
see also CREW, 746 F.3d at 1102 (finding that a “near-
verbatim recitation of the statutory standard is inadequate” to
justify the use of an exemption).
Demanding specification and tailored explanations from
OPR has become even more important in the sixteen years
since Jefferson. At the time of Jefferson, OPR maintained an
actual law-enforcement function because it was responsible for
reviewing charges that a Justice Department attorney “may be
15
in violation of law, regulations or orders, or of applicable
standards of conduct[.]” 28 C.F.R. § 0.39(a) (2001). If
OPR’s investigation concluded that the attorney’s conduct
“appear[ed] to involve a violation of law,” OPR would refer the
matter to the agency with jurisdiction to investigate and bring
charges. 28 C.F.R. § 0.39a(d)(1) (2001).
OPR’s mission today (and during the time period covered
by Bartko’s FOIA requests) has narrowed to focus primarily on
internal disciplinary matters. Justice Department regulations
provide that OPR shall “[r]eceive, review, investigate and refer
appropriate allegations of misconduct involving Department
attorneys * * *.” 28 C.F.R. § 0.39a(a)(1) (2006). Absent
from that assignment is any reference to the investigation of
criminal wrongdoing or violations of law. That marks a sharp
shift in OPR’s responsibilities toward the “internal agency
monitoring” end of the spectrum, where Exemption 7(C) has
no purchase.
“[A] Glomar response [i]s inappropriate in the absence of
an evidentiary record produced by OPR to support a finding
that all OPR records regarding [an] AUSA * * * are law
enforcement records.” Jefferson, 284 F.3d at 179. OPR
failed to heed that lesson, offering this court no sufficient basis
on which to make the threshold Glomar determination that all
records (if there are others) concerning allegations of
misconduct by Wheeler would have been compiled for law-
enforcement purposes.
2
OPR also bore the burden of explaining why disclosure of
any records would categorically be “reasonably * * * expected
to constitute an unwarranted invasion of” Wheeler’s personal
privacy, when balanced against the public interest in
16
disclosure. 5 U.S.C. § 552(b)(7)(C). OPR failed that task
too.
Much like its vaporous justification for claiming that the
requested documents constituted law-enforcement records,
OPR just sweepingly asserted that the disclosure of any record
regarding any allegation of misconduct would be an
unwarranted invasion of Wheeler’s privacy. OPR ignores
altogether its obligation to specifically identify the privacy
interest at stake, which can vary based on many factors,
including frequency, nature, and severity of the allegations.
Cf. American Immigration Lawyers Association v. Executive
Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir.
2016) (holding, with respect to Exemption 6, that the privacy
interest of an immigration judge varied depending on whether
the misconduct complaints against her were “substantiated or
unsubstantiated,” “serious,” “trivial,” or “repeated[],” and
whether she had “been subjected to some type of discipline or
ha[d] avoided disciplinary action”).
OPR also made no apparent effort to weigh any privacy
interest against the countervailing public interest in the
disclosure of information concerning allegations of
government attorneys’ misconduct. OPR cannot issue a
blanket proclamation that a loss of privacy would be
“unwarranted” without considering whether there is a public
interest that might well warrant it. 5 U.S.C. § 552(b)(7)(C).
Instead, it must measure the public interest by “the extent to
which disclosure [would] advance[] the basic purpose of the
Freedom of Information Act to open agency action to the light
of public scrutiny,” and “thereby further the citizens’ right to
be informed about what their government is up to.” American
Civil Liberties Union v. Department of Justice, 655 F.3d 1, 6
(D.C. Cir. 2011) (internal citation and quotation marks
omitted). To illustrate, an unsubstantiated allegation that was
17
dismissed as frivolous might implicate a greater privacy
interest or a reduced public interest, while an in-depth
investigation that exposed a pattern of abuses across numerous
cases would trigger a different balancing of interests. See
Roth, 642 F.3d at 1180–1182 (finding that the public’s
“compelling” interest in knowing that a man has not been
wrongly sentenced to death outweighed other suspects’ privacy
interests in not being “link[ed]” to the killings); cf. American
Immigration Lawyers, 830 F.3d at 675 (noting that “interests
on both sides of the * * * balancing test may vary in substantial
measure” depending on the individual); American Civil
Liberties Union, 655 F.3d at 7 (holding that, with respect to
disclosing criminal docket numbers and case names, a
convicted defendant’s privacy interest “is weaker than [that of]
individuals who have been acquitted or whose cases have been
dismissed”).
In short, the Glomar response fails for the additional
reason that OPR was wholly unable to establish that there
would be a single answer to every balancing of interests
involving any Wheeler records. That is a yawning omission
given the substantial public interest embedded in the Fourth
Circuit’s finding of a pattern of discovery abuses in the U.S.
Attorney’s Office for the Eastern District of North Carolina,
and that Office’s admission that a change in practices was
needed and would promptly be made. See Bartko, 728 F.3d
at 341–343; Gov’t’s Pet. for Reh’g 2, Docket No. 12-4298; see
also CREW v. Department of Justice, 854 F.3d 675, 683 (D.C.
Cir. 2017) (“Because the myriad of considerations involved in
the Exemption 7(C) balance defy rigid compartmentalization,
per se rules of nondisclosure based upon the type of document
requested, the type of individual involved; or the type of
activity inquired into, are generally disfavored.”); see also
Section II.B, infra.
18
That same reasoning dooms OPR’s blanket invocation of
Exemption 6, 5 U.S.C. § 552(b)(6), as an alternative ground for
withholding responsive records. Exemption 6 shields
“personnel and medical files and similar files” when their
disclosure “would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6) (emphasis added).
Because Exemption 6 requires an even stronger demonstration
of a privacy interest than Exemption 7(C), an agency’s inability
to justify withholding the latter often precludes it from
satisfying Exemption 6’s heightened requirements. See
CREW, 854 F.3d at 681 (“When information is claimed to be
exempt from disclosure under both [Exemptions 6 and 7(C)],
courts focus on Exemption 7(C) because it provides broader
privacy protection than Exemption 6 and thus establishes a
lower bar for withholding material.”); see also American Civil
Liberties Union, 655 F.3d at 6 (same); National Archives and
Records Admin v. Favish, 541 U.S. 157, 165–166 (2004)
(comparing the two exemptions). We leave open on remand
whether OPR can make the required individualized showing
needed to invoke Exemption 6 for its non-law-enforcement
records.
B
Bartko next challenges OPR’s decision to withhold
specific records that relate to the investigation of Wheeler’s
handling of Bartko’s own case. J.A. 874. Of the 441 pages
identified by OPR as responsive to Bartko’s request:
• One was released in its entirety;
• Twelve were released in part;
• 102 were withheld entirely;
• Six were referred to the Office of the Inspector General
for processing and direct response; and
19
• 320 were referred to the Executive Office for United
States Attorneys for processing and direct response.
OPR asserted Exemptions 5, 6, and 7(C), 5 U.S.C. § 552(b)(5),
(b)(6) & (b)(7)(C), to withhold the 114 documents in full or in
part. Of those, eight documents that were withheld in full or
in part under Exemptions 7(C) and 6 lie at the heart of Bartko’s
case.
1
In attempting to shelter its withholding of the Bartko
investigation records under Exemption 7(C), OPR once again
dropped the ball. To properly justify its invocation of the
Exemption, OPR’s affidavit had to offer an explanation that is
“full and specific enough to afford the FOIA requester a
meaningful opportunity to contest, and the district court an
adequate foundation to review, the soundness of the
withholding.” Jefferson, 284 F.3d at 176 (internal quotation
marks omitted). For Exemption 7(C), Jefferson required
OPR to make an individualized showing that each record was
actually compiled for law-enforcement purposes rather than
internal attorney supervision. See id. at 179.
OPR’s declaration proved the opposite. OPR explained
that most misconduct referrals are closed immediately “with no
misconduct findings,” or on the written record without a “full
investigation, which includes requesting and reviewing
relevant documents and conducting interviews of witnesses
and the subject attorney.” J.A. 879. Even when a full
investigation leads to the conclusion that an attorney has
engaged in professional misconduct, “those findings could
result in a referral to the attorney’s state bar or disciplinary
action by the Department.” J.A. 879.
20
That description of OPR’s review process reveals just how
attenuated its “law enforcement” function is. For starters,
most matters do not even result in an investigation, making a
finding of law-enforcement-triggering misconduct implausible
in the vast majority of cases. That summary treatment seems
to have been what was accorded to the Fourth Circuit’s referral
in Wheeler’s case because there is no record evidence or
attestations from OPR indicating that they interviewed
witnesses or requested additional documents for review.
In addition, according to OPR’s own explanation, even
when misconduct is found, all that usually occurs is a finding
of poor judgment or intentional misconduct. Discipline is left
to the department head, and perhaps referral to a state bar that
would presumably go through its own investigative process
(and compile its own records) to determine whether
punishment should ensue.
OPR’s investigation, in other words, is several steps
removed from the type of “adjudicative or enforcement”
proceeding or civil sanctions that could warrant Exemption
7(C) protection. Rural Housing Alliance, 498 F.2d at 80.
That is not nearly enough to trigger Exemption 7(C). In this
court, there is “no question that an investigation conducted by
a federal agency for the purpose of determining whether to
discipline employees for activity which does not constitute a
violation of law is not for ‘law enforcement purposes’ under
Exemption 7.” Stern v. FBI, 737 F.2d 84, 90 (D.C. Cir. 1984).
To be sure, enforcement proceedings need not be
imminent for Exemption 7(C) to apply, but they must be “more
than ephemeral possibilities.” Rural Housing Alliance, 498
F.2d at 82 n.48 (emphasis added). Even though almost all of
its complaints are closed without a full investigation, much less
an adverse finding, OPR argues that all of its Wheeler records
21
qualify as law-enforcement records just because of the slight
chance that an inquiry could lead to an investigation that could
lead to a misconduct finding that could result in a state bar
referral that could lead to a bar sanctions hearing. That claim
does not rise above the ephemeral.
This case highlights OPR’s exaggerated reliance on
Exemption 7(C). In August 2014—just days after the Fourth
Circuit issued its opinion reprimanding the U.S. Attorney’s
Office for the Eastern District—OPR wrote an initial
memorandum documenting the court’s referral. In that
memorandum, before any investigation had begun or findings
had been made, OPR concluded that, “[b]ecause former AUSA
Wheeler is no longer employed by the Department, and
because further investigation of AUSA Bragdon is unlikely to
result in a finding of misconduct, it is questionable whether this
matter warrants further inquiry.” J.A. 893 (emphases
added). So right out of the gate, OPR did not find that the
Fourth Circuit’s referral was substantial enough to inquire
further; OPR did not even think Wheeler’s actions warranted a
low-level inquiry. Nor does OPR explain what type of
investigation it conducted, what violations of law it was
investigating, or whether there was ever more than a fleeting
possibility of civil sanctions. That is not an investigation with
an eye toward law-enforcement proceedings.
2
On top of that, the balance between Wheeler’s interest in
privacy and the public’s interest in how OPR handled a federal
appeals court’s concerns about possible prosecutorial
misconduct weighs strongly in favor of disclosure.
On the privacy side of the balance, Wheeler’s interest is
substantially diminished. First, the allegations of misconduct
22
during the Bartko trial are already a matter of public record, as
is the referral to OPR published in the Fourth Circuit’s
decision, and the U.S. Attorney’s public announcement that it
too was referring the allegations of misconduct to OPR. See
Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 763 n.15 (1989) (“[T]he interests in
privacy fade when the information involved already appears on
the public record.”) (quoting Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 494–495 (1975)). Any interest Wheeler might
have had in keeping his name in the free-and-clear has already
largely evaporated. See Kimberlin v. Department of Justice,
139 F.3d 944, 949 (D.C. Cir. 1998) (“[The AUSA’s] statement
to the press undoubtedly does diminish his interest in privacy:
the public already knows who he is, what he was accused of,
and that he received a relatively mild sanction.”).
Also, unlike the lower-level staff attorneys whose records
were at issue in Jefferson and Kimberlin, AUSA Wheeler was
a supervisory official in the U.S. Attorney’s Office. At the
time of Bartko’s prosecution and the allegations of
prosecutorial misconduct, Wheeler was the Chief of the
Economic Crimes Section in the U.S. Attorney’s Office. That
supervisory responsibility comes with an increased public
interest in how prosecutorial policies and priorities were both
set and implemented by Wheeler and the individuals under his
direction. Cf. Stern, 737 F.2d at 93–94 (noting that a senior
FBI official had less of a privacy interest than lower level
employees under his supervision who might have simply been
following orders).
On the other side of the scale, the public interest in
knowing what OPR did weighs heavily. FOIA, at its core,
operates on the assumption that “it is for the public to know
and then to judge.” Stern, 737 F.2d at 94. The public has an
interest in knowing “that a government investigation itself is
23
comprehensive, that the report of an investigation released
publicly is accurate, that any disciplinary measures imposed
are adequate, and that those who are accountable are dealt with
in an appropriate manner.” Id. at 92. That is how FOIA
helps “to hold the governors accountable to the governed.”
Id.
That interest crescendos when the misfeasance of a federal
prosecutor with “the power to employ the full machinery of the
state in scrutinizing any given individual” is at stake. Young
v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987).
The public “must have assurance that those who would wield
this power will be guided solely by their sense of public
responsibility for the attainment of justice.” Id.
The significant public interest in this case is corroborated
by the decision of the U.S. Attorney’s Office to overhaul its
discovery and disclosure practices in response to the Fourth
Circuit’s decision. Indeed, the U.S. Attorney’s Office
“admit[ted]” its failures and imposed more stringent discovery
review and disclosure policies on its attorneys. Gov’t’s Pet.
for Reh’g 3, Bartko, No. 12-4298 (4th Cir. Sept. 6, 2013), ECF
No. 105. Such “[m]atters of substantive law enforcement
policy,” and the events that set them in motion, “are properly
the subject of public concern,” American Civil Liberties Union,
655 F.3d at 14 (quoting Reporters Comm., 489 U.S. at 766
n.18). There is also a corresponding public interest in
knowing if the government’s remedial measures adequately
redressed the harm that prompted the policy changes. See
CREW, 854 F.3d at 679 (“[There is a] weighty public interest
in shining a light on the FBI’s investigation of major political
corruption and the [Department of Justice]’s ultimate decision
not to prosecute,” which the court explained was “not to find
out what the [accused] himself was ‘up to’ but rather how the
FBI and [Department of Justice] carried out their respective
24
statutory duties[.]”) (internal citation and quotation marks
omitted).
Finally, because the public interest substantially
outweighs any residual privacy interest Wheeler might retain
with respect to his conduct in the Bartko case, OPR’s reliance
on Exemption 6’s even more demanding standard fails as well.
See Section II.A.2, supra.
3
While OPR erred in withholding eight records under
Exemptions 6 and 7(C), the remainder of the documents that
Bartko seeks concerning the investigation into his prosecution
were properly withheld under Exemption 5, 5 U.S.C.
§ 552(b)(5). That Exemption insulates from disclosure
“inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency.” Id. Exemption 5 is most
commonly invoked to protect the deliberative-process
privilege, the attorney work-product privilege, and the
attorney-client privilege. See Coastal States Gas Corp. v.
Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).
Our in camera review confirms the district court’s ruling that
Exemption 5 was properly applied to protect OPR’s
deliberative, pre-decisional process and its discussion of
matters related purely to the pending FOIA litigation.
C
Bartko also challenges the invocation of Exemption 7(C)
by the FBI, the U.S. Postal Inspection Service, the Securities
25
and Exchange Commission, the Executive Office for U.S.
Attorneys, and the Internal Revenue Service.
As to the FBI and Postal Inspection Service, the nature of
their law-enforcement roles, the types of records requested, and
the balance of interests involved together support the claimed
Exemption.
As a preliminary matter, unlike OPR’s documents, the
FBI’s and Postal Inspection Service’s records were compiled
for law-enforcement purposes as they were collected during an
investigation that “focus[ed] directly on” Bartko’s
“specifically alleged” criminal activities. See, e.g., Bartko v.
Department of Justice, 2015 WL 9272833, at *5 (D.D.C. Dec.
18, 2015) (“[I]t is undisputed that the records in question were
created for law-enforcement purposes[:] Plaintiff’s
investigative main file was compiled by the FBI during its
criminal investigation of plaintiff and others for the crimes of
conspiracy to commit mail fraud, the sale of unregistered
securities and money laundering, and engaging in unlawful
monetary transactions.”) (internal quotation marks omitted);
Bartko v. Department of Justice, 167 F. Supp. 3d 55, 67
(D.D.C. 2016) (“Bartko concedes that the [Postal Inspection
Service] records he wants were compiled for law-enforcement
purposes.”).
Unlike OPR’s, the FBI’s application of Exemption 7(C)
was measured and carefully calibrated to balance the
competing private and public interests. In response to
Bartko’s request for records about his purported co-
conspirators, the FBI processed 1,233 pages, released 1,099
pages to Bartko in full or in part, and withheld 134 pages.
Bartko, 2015 WL 9272833, at *1. The FBI identified eight
categories of names and identifying information that it
withheld pursuant to the Exemption: (1) FBI special agents
26
and support employees; (2) third parties of investigative
interest; (3) non-FBI federal-governmental personnel; (4) third
parties merely mentioned; (5) recipients of subpoenas; (6)
third-party victims; (7) third parties who provided information
to the FBI; and (8) state law-enforcement employees. Id. at
*5.
As this Court has held, “third parties,” “witnesses,” and
“informants” mentioned in investigatory files maintain a
privacy interest “in keeping secret the fact that they were
subjects of a law enforcement investigation.” Nation
Magazine v. United States Customs Service, 71 F.3d 885, 894
(D.C. Cir. 1995); see also Martin v. Department of Justice, 488
F.3d 446, 457 (D.C. Cir. 2007) (“We also note that privacy
interests are particularly difficult to overcome when law
enforcement information regarding third parties is
implicated.”). For that reason, the FBI is permitted “to
withhold information identifying private citizens mentioned in
law enforcement records, unless disclosure is ‘necessary in
order to confirm or refute compelling evidence that the agency
is engaged in illegal activity.’” Schrecker v. Department of
Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (quoting SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)).
That privacy protection also extends to law-enforcement
personnel who “do[] not forgo altogether any privacy claim in
matters related to official business.” Lesar v. Department of
Justice, 636 F.2d 472, 487 (D.C. Cir. 1980); see also
Kimberlin, 139 F.3d at 949. The district court’s in camera
review confirmed the FBI’s precise approach to only redacting
information implicating those recognized privacy interests, and
approved its reasonable segregation of all disclosable material.
Bartko, 2015 WL 9272833, at *7. Given the FBI’s
individualized justification for each category of withheld
material, the district court’s in camera review, and Bartko’s
27
failure to explain how disclosure would serve the public
interest, we affirm the withholding of documents on those
grounds.
Bartko launches the same attack against the Postal
Inspection Service’s invocation of Exemption 7(C), arguing
that the public interest mandates disclosure in spite of any
third-party privacy interests. In this particular request, Bartko
sought records “contained in the files of [the Postal Inspection
Service] and specifically under [Bartko’s] name and/or
identifier assigned to [Bartko’s] name,” such as arrest records
and investigation reports. J.A. 343. As previously
discussed, third parties retain a privacy interest in not being
associated with an investigation. And the district court’s
review of the documents confirmed that the withheld records
did “not contain any information that appeared to reflect
prosecutorial or agency misconduct,” Bartko, 167 F. Supp. 3d
at 70, so the public interest in disclosure cannot overcome the
privacy interests at stake. See Favish, 541 U.S. at 172 (“[T]he
citizen must show that the public interest sought to be advanced
is a significant one * * * [and] must show the information is
likely to advance that interest. Otherwise, the invasion of
privacy is unwarranted.”).
Bartko conclusorily asserts that the IRS’s and the
Commission’s application of Exemption 7(C) was improper,
but he fails to offer any specific arguments as to why. 3 See
3
Bartko also challenges the Executive Office of U.S.
Attorneys’ invocation of Exemption 7(C), but none of the district
court orders or judgments under review approve of that Office’s
application of Exemption 7(C). See generally Bartko v.
Department of Justice, 2014 WL 12787640 (D.D.C. Sept. 9, 2014);
Order, Bartko v. Department of Justice, No. 13-cv-1135 (D.D.C.
Dec. 11, 2014); Bartko v. Department of Justice, 102 F. Supp. 3d 342
(D.D.C. 2014). Nor does Bartko identify what ruling he contests.
28
Bartko Br. 9 (“Bartko asserts on appeal that the strength of the
public’s interest in access to the withheld records outweighs the
claims asserted by the six Defendant-Agencies that relied upon
Exemption (b)(7)(C) to withhold records and information.”);
id. at 22 (“The District Court erred in upholding the IRS claim
of exemption.”); id. at 28 (“[T]he claim of the (b)(7)(C)
exemption by the [Postal Inspection Service], as well as the
other Defendant-Agencies (including the 136 pages withheld
by the IRS), fails and this Court should so hold.”). As to those
agencies, Bartko neither specifies the portions of the district
court’s analyses that he challenges nor the alleged errors in the
agencies’ justifications for the claimed exemption.
As best we can tell, the gist of Bartko’s argument seems to
be that the public interest involved overrides any potential
privacy interest at stake. But as Favish held, it is Bartko’s
burden to show, for each set of records he seeks (which varied
greatly from agency to agency), that “the public interest sought
to be advanced is a significant one,” and that “the [requested]
information is likely to advance that interest.” 541 U.S. at
172; see Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C.
Cir. 2005) (“It is not enough merely to mention a possible
argument in the most skeletal way.”) (internal quotation
omitted). Because Bartko has failed to do so, this Court
affirms the district court’s decisions regarding the IRS’s and
the Commission’s invocation of Exemption 7(C).
Therefore, the Court will not address this undeveloped objection.
Cf. Goos v. National Ass’n of Relators, 997 F.2d 1565, 1572 (D.C.
Cir. 1993) (refusing to consider a “twice-speculative” claim with an
“uncertain foundation” because “this court tries not to base its
decisions on mind reading”).
29
III
One of Bartko’s remaining objections to the agencies’
searches warrants further attention by the district court, while
the rest are without merit.
A
Bartko seeks the disclosure of a “thumb drive” that “was
produced in response to a Grand Jury Subpoena to a third party
individual” and contained “specific documents sought by the
Grand Jury.” J.A. 952.
FOIA Exemption 3 allows the government to withhold
records that are “specifically exempted from disclosure by
[another] statute[.]” 5 U.S.C. § 552(b)(3). A common
example of a qualifying Exemption 3 statute is Federal Rule of
Criminal Procedure 6(e), which bars disclosure of “a matter
occurring before the grand jury.” FED. R. CRIM. P. 6(e)(2)(B).
Specifically, Rule 6(e) protects information that would “tend to
reveal some secret aspect of the grand jury’s investigation,
including the identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation, or the
deliberations or questions of jurors.” Hodge v. FBI, 703 F.3d
575, 580 (D.C. Cir. 2013) (citation and internal quotation
marks omitted). Rule 6(e) does not, however, “draw ‘a veil
of secrecy * * * over all matters occurring in the world that
happen to be investigated by a grand jury.’” Labow v.
Department of Justice, 831 F.3d 523, 529 (D.C. Cir. 2016)
(alteration in original) (citation omitted).
Invoking Exemption 3’s protection of grand jury
materials, the FBI withheld the thumb drive from disclosure.
Because the only information contained on the thumb drive
was obtained in response to a grand jury subpoena, the FBI
30
asserted that “[a]ny disclosure of the information * * * would
clearly violate the secrecy of the grand jury proceedings and
could reveal the inner workings of a federal grand jury[.]”
J.A. 953.
With commendable due diligence, the district court
reviewed the records at issue in camera and agreed that
withholding was proper on the ground that the thumb drive
“contain[ed] information about the names of recipients of
federal grand-jury subpoenas; information that identifie[d]
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.” Bartko, 2015 WL 9272833, at *4. On
all points but the last, we agree.
In the time between the district court’s decision and this
appeal, this court clarified that documents that “would reveal
to the requester that they had been subpoenaed” by a grand jury
would be protected, but documents that “would not necessarily
reveal a connection to a grand jury” would not. Labow, 831
F.3d at 529. The record before us does not answer whether
the documents on the thumb drive themselves “would have
revealed something about the workings of the grand jury had
they been released with other requested documents,” and thus
we cannot say that they would have been identifiable as
materials sought by the grand jury. Id. at 530.
As recognized by Labow, “it may turn out, in this case, that
most, or even all, of the material withheld pursuant to
[Exemption 3] cannot be disclosed without compromising the
secrecy of a grand jury’s deliberations,” but “[t]he mere fact
the documents were subpoenaed fails to justify withholding
under Rule 6(e).” Id. For that reason, we remand to the
district court for further consideration in light of our
intervening decision in Labow.
31
B
Bartko next faults the Securities and Exchange
Commission for conducting an inadequate search and for
improperly applying Exemptions 5 and 8 to withhold or redact
records. He fails to persuade on all three challenges.
As to the adequacy of the Commission’s search, Bartko
argues that it failed to search a supposed “third file” that
purportedly contained information about the Capstone Fund.
The problem for Bartko is that there is no discernible evidence
in the record that any such third file exists. The Commission
explained that, in searching for responsive documents, it had
used all of the names listed in the FOIA request as search
criteria and searched its Name Recognition Search Index.
That identified two (not three) relevant investigative “matters”
with responsive records. J.A. 540. As the district court
found, there is “no evidence * * * that the [Commission’s]
Atlanta Regional Office even had a file on Capstone Partners
during the relevant time period,” and Bartko did not provide an
“appropriate alternative approach to the search” that might
uncover what he seeks. Bartko v. Department of Justice,
2016 WL 4506968, at *6 (D.D.C. Aug. 26, 2016).
Bartko’s continued speculation that a third file exists is not
enough to undermine the adequacy of the Commission’s
search. “Agency affidavits 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., 926 F.2d at 1200
(citation omitted). Nor does the failure of a search to uncover
a particular sought-after document evidence the search’s
insufficiency. See Iturralde v. Comptroller of Currency, 315
F.3d 311, 314 (D.C. Cir. 2003) (“[I]t is long settled that the
32
failure of an agency to turn up one specific document in its
search does not alone render a search inadequate.”).
Bartko also takes issue with the Commission’s reliance on
Exemption 8 to withhold two documents. Exemption 8
allows agencies to hold back material that is “contained in or
related to examination, operating, or condition reports prepared
by, on behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions.” 5 U.S.C.
§ 552(b)(8). Bartko argues that the Caledonian and Capstone
Funds that he managed and that were investigated by the
Commission are not “financial institutions” regulated by the
Commission, and thus do not fall within Exemption 8.
Bartko’s argument fails before it even starts. He did not
challenge the Commission’s reliance on Exemption 8 in the
district court. J.A. 583 (acknowledging that the
Commission’s “withholding of document 36 and 38 is
understandable”). So he has forfeited the challenge. See
Chichakli v. Tillerson, 882 F.3d 229, 234 (D.C. Cir. 2018)
(“But [the appellant] failed to raise this argument below, and
therefore it is forfeited.”). And there is no reason for us to
exercise our discretion to reach the question given that both
withheld documents—a report of an examination of a broker-
dealer, pursuant to 15 U.S.C. § 78q(b), and a letter relating to
that report—fall within Exemption 8’s heartland.
Lastly, Bartko contends that Exemption 5’s attorney work-
product privilege cannot apply because Commission staff
“engaged in investigatory misconduct” when working with
Bartko’s criminal prosecution team. Bartko Br. 43. But the
case on which Bartko relies, Moody v. IRS, 654 F.2d 795 (D.C.
Cir. 1981), involved a different situation in which the attorney
admitted to “unprofessional conduct,” and, in providing
guidance to the district court on remand, this court stated that
33
only “tainted work product” resulting from that misconduct
“need be released.” Id. at 800 n.17, 801 n.20. Unlike in
Moody, the Commission has admitted to no impropriety here,
Bartko has offered no evidence of misconduct, and there is no
evidence that the records sought by Bartko were the result of
any alleged wrongdoing.
IV
Lastly, Bartko challenges the Executive Office for U.S.
Attorneys’ charge of a fee for processing his FOIA request.
Citing its policy that the first 101 pages of released records are
free, while the remaining 519 pages come at a cost, the
Executive Office required Bartko to pay a $51.90 processing
fee before releasing the material to him. Bartko is correct:
he should not have been charged that fee.
When, as here, records are not requested for commercial
use, an agency may only charge reasonable fees “for document
search and duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(III).
And FOIA directs that the fee be waived “if disclosure of the
information is [i] in the public interest because it is likely to
contribute significantly to public understanding of the
operations or activities of the government and [ii] is not
primarily in the commercial interest of the requester.” Id.
§ 552(a)(4)(A)(iii). “[F]ee-waiver applications are to be
‘liberally construed’ in favor of * * * requesters.” National
Sec. Counselors v. Department of Justice, 848 F.3d 467, 473
(D.C. Cir. 2017).
The parties agree in this case that Bartko satisfies the
second prong because the information sought does not serve
any personal commercial interest. Bartko v. Department of
Justice, 102 F. Supp. 2d 342, 350 (D.D.C. 2015) (“EUOSA
34
concedes that disclosure is not primarily in Bartko’s
commercial interest[.]”).
With respect to the first prong, Bartko is entitled to a fee
waiver if he shows in “reasonably specific” and “non-
conclusory terms” that the disclosed records would contribute
to public understanding of the government’s activities.
National Sec. Counselors, 848 F.3d at 473. Measuring the
contribution to public understanding turns upon “the degree to
which ‘understanding’ of government activities will be
advanced by seeing the information; and the extent of the
‘public’ that the information is likely to reach.” Cause of
Action v. FTC, 799 F.3d 1108, 1116 (D.C. Cir. 2015). “FOIA
does not require [however] that a requester be able to reach a
‘wide audience,’” just a “reasonably broad audience of persons
interested in the subject.” Id.
Bartko’s request satisfies those criteria. He explained in
some detail how the requested records would contribute to
public understanding. The information, he reasoned, was
needed to “follow-up on the government’s actions and/or
inaction” in light of the Fourth Circuit’s spotlight on the
“serious discovery abuses by federal prosecutors in [the
Eastern District of North Carolina].” J.A. 678. In that
sense, disclosure was “likely to contribute significantly to the
public’s understanding of how federal prosecutors endeavor to
secure convictions by sidestepping important constitutional
protections for the accused,” and “how the [criminal justice]
system functions in reality compared to how the system was
intended to function.” J.A. 678–679.
Bartko was also uniquely positioned to convey this
information because his prosecution had already garnered
“significant media interest,” and he was able to add a personal
element by describing the damage that the “misconduct and
35
improprieties of federal prosecutors” can have on individual
citizens. J.A. 678. Indeed, he identified three public service
websites with which he had already shared information and
attached an article that had been written about the prosecutorial
errors in his case. That explanation demonstrated in
reasonably specific and non-conclusory terms why his FOIA
request mattered, and how the records in question could shed
light on matters already identified by the Fourth Circuit as
important to the integrity of the criminal justice system.
The district court acknowledged that there were “public
interest benefits to be gained,” but concluded that “they [we]re
minimal in comparison to the unavoidably obvious personal
purpose for which the records [we]re sought”—that is,
bolstering Bartko’s habeas corpus effort. Bartko, 102
F. Supp. 3d at 351. That was legal error. FOIA states that a
fee waiver is available as long as disclosure “is not primarily in
the commercial interest of the requester.” 5 U.S.C.
§ 552(a)(4)(A)(iii) (emphasis added). No party contends that
the release of records would be in Bartko’s financial interest.
Beyond that, it does “no[t] * * * matter[] whether the
information will also (or even primarily) benefit the requester.”
Cause of Action, 799 F.3d at 1118 (emphasis added). “Nor
does it matter whether the requester made the request for the
purpose of benefiting itself.” Id. All that matters is whether
these records are likely to significantly contribute to public
understanding. See id.
In short, the public interest in the material Bartko seeks is
substantial given the Fourth Circuit’s disclosure of a troubling
pattern of prosecutorial missteps and the U.S. Attorney’s
Office’s recognition that errors had been made and changes
would be implemented. Disclosure will reveal what is yet
unknown—how the government handled the misconduct
allegations internally and how it responded to the significant
36
concerns expressed by the Fourth Circuit. Bartko, for his
part, is sharing the information with an interested public.
Since there is no claim that Bartko has a commercial interest in
the documents, and the material is in the public’s interest, he
qualified for a fee waiver. 4
* * * * *
For the foregoing reasons, we reverse the district court’s
award of summary judgment with respect to (i) OPR’s use of
Exemption 7(C) to justify its Glomar response and other
withheld records, and (ii) its denial of Bartko’s fee waiver
request. The court will also remand for the district court to
reconsider its decision regarding the FBI’s withholding
pursuant to Exemption 3 and Criminal Rule of Procedure 6.
So ordered.
4
The court leaves to the district court to determine, if and when
appropriate, how this decision impacts Bartko’s challenge to the
Executive Office’s advance search-fee charge for FOIA request
2014-00486.