Bartko v. DOJ, No. 16-5333, 2018 WL 3673936 (D.C. Cir. Aug. 3, 2018) (Millet, J.)

Bartko v. DOJ, No. 16-5333, 2018 WL 3673936 (D.C. Cir. Aug. 3, 2018) (Millet, J.)

Re:  Request for records pertaining to a potential investigation of an AUSA

Disposition:  Reversing district court's grant of government's summary judgment; remanding case

• Exemption 7, Threshold:  "To qualify as law-enforcement records, the [requested] documents must arise out of 'investigations which focus directly on specifically alleged illegal acts . . . which could, if proved, result in civil or criminal sanctions.'"  The D.C. Circuit finds that, "[b]ecause OPR does not 'specialize . . . in law enforcement,' its attempt to shield its records under Exemption 7(C) merits no deference."  "We have previously 'decline[d] to hold as a matter of law that all OPR records are necessarily law enforcement records.'"  "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.'"  "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."  "The government has not come close to showing that all records . . . involving misconduct allegations against [the AUSA] would have been compiled for law enforcement purposes."
   
• Exemption 7(C), Glomar:  "In defense of its sweeping Glomar response, OPR offered only a bare-bones declaration that '[t]he records requested . . . 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.'"  The D.C. Circuit finds that, "[this explanation] is not even in the ballpark . . . . OPR 'cannot rely on a bare assertion to justify invocation of an exemption from disclosure.'"  "[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."
   
• Exemption 7(C):  "OPR also [argued that] any records would categorically . . . inva[de] . . . [the AUSA's] personal privacy."  The D.C. Circuit finds that, "OPR ignore[d] 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."  "OPR also made no apparent effort to weigh any privacy interest against the countervailing public interest in the disclosure of information . . . ."  "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."
  
  Further, the D.C. Circuit finds that, "the balance between [the AUSA'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, [the AUSA's] interest is substantially diminished."  "First, the allegations of misconduct during the . . . 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."  "Any interest [the AUSA] might have had in keeping his name in the free-and-clear has already largely evaporated."  "Also, unlike the lower-level staff attorneys . . . [the AUSA] was a supervisory official in the U.S. Attorney's Office."  "At the time of . . . [the] prosecution and the allegations of prosecutorial misconduct, [the AUSA] 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 [the AUSA] and the individuals under his direction."  "On the other side of the scale," the D.C. Circuit holds, "the public interest in knowing what OPR did weighs heavily."  "The public has an interest in knowing 'that a government investigation itself is 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.'"  "That is how FOIA helps to hold the governors accountable to the governed.'"  The D.C. Circuit further finds that 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."  "There is also a corresponding public interest in knowing if the government's remedial measures adequately redressed the harm that prompted the policy changes."
  
  The D.C. Circuit also finds, with regard to the FBI withholdings, that, "[t]he 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."  "Given the FBI's individualized justification for each category of withheld material, the district court's in camera review, and requester's failure to explain how disclosure would serve the public interest, we affirm the withholding of documents on those grounds.
   
• Exemption 3:  "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 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[.]'"  The D.C. Circuit notes that "[w]ith 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.'"  The D.C. Circuit remands, however, because the record does not reveal whether the material would have been identifiable as sought by the grand jury and '[t]he mere fact the documents were subpoenaed fails to justify withholding under Rule 6(e).'"
   
• Litigation Considerations, Adequacy of Search:  The D.C. Circuit holds that, "Requester's continued speculation that a third file exists is not enough to undermine the adequacy of the SEC'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.'"  "Nor does the failure of a search to uncover a particular sought-after document evidence the search's insufficiency."
   
• Fees and Fee Waivers, Fee Waivers:  The D.C. Circuit finds that "the public interest in the material [the requester] 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 concerns expressed by the Fourth Circuit."  "[The requester], for his part, is sharing the information with an interested public."  "Since there is no claim that [the requester] has a commercial interest in the documents, and the material is in the public's interest, he qualified for a fee waiver."