Bartko v. DOJ, No. 13-1135, 2014 WL 3834343 (D.D.C. Aug. 5, 2014) (Boasberg, J.)

Bartko v. DOJ, No. 13-1135, 2014 WL 3834343 (D.D.C. Aug. 5, 2014) (Boasberg, J.)

Re: Request for records concerning AUSA who secured plaintiff's conviction, as well as records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 7(C), The "Glomar" Response:  Regarding OPR's action on plaintiff's request, the court holds that "[t]he Government's disclosures thus definitively establish that the wheels of an investigation into [the AUSA's] conduct with respect to [plaintiff's] case had at least begun to turn."  "[Plaintiff], therefore, has carried his burden of showing that the Government has acknowledged an investigation into [the AUSA's] conduct, and the Government may not submit a Glomar response predicated on [the AUSA's] interest in keeping such an investigation quiet."  The court notes that "[a]s the potential subject of an investigation, then, [the AUSA] would ordinarily have a privacy interest in protecting information about that investigation."  However, the court finds that "although it was . . . a U.S. attorney—rather than OPR, the defendant in this case—who confirmed that [the AUSA] was under investigation, the prosecutor's decision to acknowledge the investigation is 'enough to trigger the public domain exception,' as both [the U.S. attorney] and OPR work for DOJ."  Moreover, the court finds that "[w]hile the Court may not infer official disclosure merely from 'widespread public discussion' of a matter, . . . a statement to the media made by a person authorized to speak for the agency certainly suffices."  However, the court also holds that "the Glomar response with respect to other investigations is proper, and the Department need not acknowledge anything further."
   
• Exemption 7(C):Regarding the FBI's action on plaintiff's request, the court holds that "[t]o uphold the FBI's categorical denial—indeed, its refusal to conduct a search at all—then, the Court must find that [plaintiff's] co-conspirators' privacy interests in the documents 'characteristically' outweigh the public's interest in those documents."  The court holds that "[t]he nature of the information that would arise from such a search, however, does not admit of such categorical conclusions."
   
• Exemption 3:  The court holds that the information at issue is "information [the government] properly seeks to withhold."  The court explains that "[t]he contested statute here, Federal Rule of Criminal Procedure 6(e) . . . bars the disclosure of matters occurring before a grand jury."  The court explains that "the withheld documents 'contain information about the names of recipients of federal grand jury subpoenas; information that identifies specific records subpoenaed by a federal grand jury; and copies of specific records provided to a federal grand jury in response to federal grand jury subpoenas.'"
   
• Exemption 7(A):  The court finds that defendant's "[d]eclaration provides no specifics about, for example, the investigation—or even the type of investigation—that could be compromised or how the release of the information requested would interfere with any particular ongoing investigation."  Therefore, the court holds that "[u]ntil the FBI provides something approaching this level of specificity—and perhaps certain sensitive information may be provided in camera—the Court will not be in a position to consider its argument for summary judgment on Exemption 7(A)."
   
• Exemption 7(D):  The court holds that it "cannot sanction the withholdings under Exemption 7(D) as the record now stands."  The court notes that "[defendant's] Declaration acknowledges that there was no express assurance here; instead, it relies on implied confidentiality."  The court holds that it "agrees with [plaintiff] that the details in this description are so sparse that Plaintiff does not have sufficient information to challenge whether the circumstances support an inference of confidentiality."  The court finds that "[a]t a minimum, the agency must provide some description of the nature of the crime at issue, the source's specific relation to the crime, and the other Roth factors."
   
• Exemption 7(E):The court "order[s] the FBI to submit a further affidavit if it hopes to prevail on Exemption 7(E)."  The court finds that "[c]onspicuously absent from [defendant's] dive into modern investigative technology, however, is any mention of how disclosure of the bare data contained in [Computer Analysis and Response Team] reports might reveal any technique, procedure, or technological method the FBI uses."  The court also finds that "[t]he descriptions of the other categories of information withheld under Exemption 7(E) are similarly deficient."
   
• Procedural Requirements, "Agency Records": The court disagrees with defendant's argument that "certain records it identified as responsive to [plaintiff's] FOIA request need not be disclosed because they reside on two CDs and a thumb drive," and as “physical items that were presented to prosecutors as evidence” were not “agency records.”  The court "order[s] that the FBI either produce the records contained on the CDs and flash drive in question or justify their withholding with reference to one or more FOIA exemptions."