Bartko v. DOJ, No. 13-1135, 2015 WL 2091229 (D.D.C. May 6, 2015) (Boasberg, J.)

Bartko v. DOJ, No. 13-1135, 2015 WL 2091229 (D.D.C. May 6, 2015) (Boasberg, J.)

Re: Request for records concerning plaintiff's criminal case

Disposition: Granting defendant's motion for partial summary judgment; denying plaintiff's motion for partial summary judgment; granting defendant's motion to dismiss remaining claims for failure to pay required fees

• Exemption 5:  "The Court . . . will not further scrutinize the admittedly proper invocation of Exemption 5, and it will grant EOUSA's Motion for Partial Summary Judgment with respect to" this issue.  The court notes that "[p]laintiff apparently concedes that these partial redactions do contain information covered by this exemption."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "EOUSA's failure to respond . . . [for "more than two months"] means that Plaintiff constructively exhausted his administrative remedies."  "Constructive exhaustion, it must be emphasized, does not entitle [plaintiff] to free copies of the remaining documents."  "Rather, it allows him judicial review of his fee-waiver request without any requirement that he await the result of his administrative appeal."  The court also finds that "[b]ecause Plaintiff filed suit in reliance on a constructive-exhaustion theory, . . . the Court is not barred from considering the agency's arguments made in this litigation, even though it did not raise these arguments in its initial denial of the fee waiver."
   
• Fees and Fee Waivers, Fee Waivers:  "The Court . . . finds that [plaintiff] has not established his entitlement to a 'public interest' fee waiver."  The court notes that "[t]he parties primarily differ over the fourth regulatory factor."  The court finds that "[a]s is evident from Plaintiff's filings, access to the records is 'crucial' precisely because he seeks evidence to support his habeas petition."  "While there may be incidental public-interest benefits to be gained, they are minimal in comparison to the unavoidably obvious personal purpose for which the records are sought."
   
• Fees and Fee Waivers:  The court holds that "[p]laintiff's allegations of bad faith, whether viewed singly or in concert, are misguided."  The court finds that "EOUSA has thus far made reasonable efforts to comply with FOIA and to respond to Plaintiff's farrago of incendiary motions and correspondence."  The court also finds that "[r]equiring Plaintiff to pay the assessed fees (absent a waiver)—particularly in installments—does not amount to bad faith."  Finally, the court finds that "while Defendant is not faultless for the delay in processing and releasing the initial batch of documents, mere delay in responding to a FOIA request is routinely found to be insufficient to support a finding of bad faith."