Bartko v. United States Department of Justice
62 F. Supp. 3d 134
D.D.C.2014Background
- Gregory Bartko, convicted in 2010 of securities fraud and related offenses, filed FOIA requests seeking records about Assistant U.S. Attorney Clay Wheeler and others involved in his prosecution.
- Bartko submitted FOIA requests to multiple agencies; this opinion concerns the Department of Justice Office of Professional Responsibility (OPR) and the FBI responses.
- OPR released limited documents (related to a complaint Bartko filed) but issued a Glomar response refusing to confirm or deny other records concerning Wheeler; the FBI released many records, withheld others under multiple exemptions, and declined to search for records about three co‑conspirators on privacy grounds.
- Bartko sued for disclosure; cross‑motions for summary judgment were filed by the parties and resolved in part in this opinion.
- The Court held OPR’s Glomar response improper as to any OPR inquiry officially acknowledged concerning Wheeler’s conduct in Bartko’s criminal case and ordered OPR to search for records related to that investigation; the Glomar response remains proper for other, unacknowledged investigations.
- The Court ordered the FBI to (1) search for records regarding the three co‑conspirators (the FBI’s categorical refusal to search was improper), (2) process and either produce or justify withholding records on two CDs and one flash drive, and (3) provide more detailed declarations/Vaughn indices to support its withholdings under Exemptions 7(A), 7(D), and 7(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of OPR’s Glomar response regarding records about Wheeler | Bartko: Government already officially acknowledged an OPR inquiry about Wheeler tied to Bartko’s case, so OPR must at least confirm existence and search | OPR: No official OPR acknowledgment; public/media reports insufficient; privacy justifies Glomar | Held: Glomar improper as to any OPR investigation officially acknowledged (i.e., the OPR inquiry tied to Bartko’s case); OPR must search and either produce or justify withholdings; Glomar stands for other investigations not officially acknowledged |
| FBI’s categorical refusal to search for records about three co‑conspirators (Exemptions 6 and 7(C)) | Bartko: Categorical no‑search unlawful; privacy balancing required and some records may be public or non‑private | FBI: Co‑conspirators did not waive privacy; disclosures would invade privacy so no search needed | Held: FBI must search for responsive records regarding the three co‑conspirators and then disclose or provide Vaughn indices; categorical refusal rejected |
| Withholdings under Exemption 3 (grand jury secrecy) | Bartko: Agency declarations insufficient to show withheld records reveal grand jury matters | FBI: Withheld documents contain grand‑jury subpoenas, identities of subpoena recipients, and materials produced to grand jury; Exemption 3 applies | Held: Court accepts FBI’s declaration as sufficiently specific for Exemption 3; those withholdings allowed |
| Withholdings under Exemptions 7(A), 7(D), 7(E) | Bartko: FBI’s declarations boilerplate and lack specific application of factors to withheld records | FBI: Withholdings necessary to protect ongoing investigations, confidential sources, and investigative techniques | Held: FBI’s affidavits insufficiently specific for 7(A), 7(D), and 7(E); FBI must supply more detailed declarations or release the records |
Key Cases Cited
- United States v. Bartko, 728 F.3d 327 (4th Cir. 2013) (criminal conviction and referral to OPR discussed)
- Department of Air Force v. Rose, 425 U.S. 352 (1976) (FOIA’s purpose to open agency action to public scrutiny)
- Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (FOIA burden on agency; de novo review)
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (origin of Glomar doctrine)
- Marino v. Drug Enforcement Admin., 685 F.3d 1076 (D.C. Cir. 2012) (public‑domain exception to Glomar)
- Roth v. Department of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (privacy interests and disclosure of investigatory subjects)
- Citizens for Responsibility & Ethics in Washington v. Department of Justice, 746 F.3d 1082 (D.C. Cir. 2014) (agency must provide non‑boilerplate Vaughn explanations)
- Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856 (D.C. Cir. 1981) (Exemption 3 and grand jury secrecy)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (standard for harms cognizable under FOIA exceptions in Glomar context)