898 F.3d 51
D.C. Cir.2018Background
- Gregory Bartko was convicted in a federal securities fraud prosecution handled in the Eastern District of North Carolina; the Fourth Circuit criticized the U.S. Attorney’s Office for repeated discovery and prosecutorial errors, and referred the matter to the DOJ Office of Professional Responsibility (OPR).
- Bartko submitted FOIA requests to OPR and multiple agencies seeking OPR materials about AUSA Clay Wheeler (and records related to Bartko’s own prosecution); OPR released only a small set of documents and issued a Glomar (neither confirm nor deny) response for broader records.
- The district court upheld many of the agencies’ withholdings under FOIA Exemptions 5, 6, 7(C), and 3, and denied Bartko a fee waiver; Bartko appealed.
- This Court reviewed the record and reversed the district court as to OPR’s broad Glomar/Exemption 7(C) invocation and the denial of a fee waiver, remanding the FBI’s Exemption 3 (grand-jury materials) withholding for reconsideration under intervening precedent, and affirmed other agency withholdings.
- The court held OPR failed to show (1) that all requested Wheeler-related records were compiled for law-enforcement purposes rather than internal supervisory/disciplinary purposes, and (2) that a blanket privacy balancing defeated the substantial public interest in disclosure given the Fourth Circuit’s findings and the U.S. Attorney’s announced reforms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of OPR’s Glomar (categorical refusal) under Exemption 7(C) for records about Wheeler | Bartko: OPR must disclose or justify existence because records may relate to prosecutorial misconduct and public interest outweighs privacy | OPR: All Wheeler records are law-enforcement records and confirming existence would invade privacy; thus Glomar is permitted | Reversed: OPR failed to show records were compiled for law-enforcement purposes or to carry out the required individualized privacy/public-interest balancing; Glomar improper |
| Withholding of specific OPR records re: Bartko’s case under Exemptions 7(C) and 6 (and some Exemption 5 assertions) | Bartko: Eight core records withheld under 7(C)/6 should be disclosed given public interest and supervisory nature of Wheeler | OPR: Records are investigatory/law-enforcement and privacy interests prevail; some documents also privileged under Exemption 5 | Reversed for the eight records: OPR’s affidavits were conclusory and OPR did not show law-enforcement nexus; Exemption 5 withholdings largely upheld for deliberative/work-product material |
| FBI withholding of a thumb drive under Exemption 3 / Rule 6(e) (grand jury secrecy) | Bartko: Not all subpoenaed materials necessarily reveal grand-jury deliberations; some items may be disclosable | FBI: Thumb drive contains only grand-jury-subpoenaed material; disclosure would breach Rule 6(e) secrecy | Remanded: In light of Labow, district court must reassess whether the specific materials would reveal grand-jury activity or could be disclosed |
| Fee waiver denial for Executive Office for U.S. Attorneys processing fee | Bartko: Disclosure serves substantial public interest in government oversight of prosecutorial misconduct; not primarily commercial | EOUSA/ district court: Benefits to public minimal and request primarily advances Bartko’s collateral litigation | Reversed: Court holds Bartko showed in reasonably specific terms the public interest and lack of commercial motive; fee waiver should have been granted |
Key Cases Cited
- United States v. Bartko, 728 F.3d 327 (4th Cir. 2013) (Fourth Circuit criticized recurring discovery abuses and referred matter to OPR)
- Jefferson v. Department of Justice, 284 F.3d 172 (D.C. Cir. 2002) (OPR records are not categorically law-enforcement records; agency must justify on a case-by-case basis)
- Roth v. Department of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (standards for Glomar responses and when existence/nonexistence may be withheld)
- Labow v. Department of Justice, 831 F.3d 523 (D.C. Cir. 2016) (clarified when grand-jury subpoenaed materials are exempt under Rule 6(e))
- Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FOIA’s purpose to inform public; privacy interests can fade when information is already public)
- National Archives v. Favish, 541 U.S. 157 (2004) (requirement that requester demonstrate a significant public interest likely to be advanced to overcome privacy under Exemption 7)
- Citizens for Responsibility & Ethics in Washington v. Department of Justice, 746 F.3d 1082 (D.C. Cir. 2014) (agencies must provide specific justifications; conclusory recitations insufficient)