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Bartko v. DOJ, No. 13-1135, 2015 WL 4932122 (D.D.C. Aug. 18, 2015) (Boasberg, J.)


Bartko v. DOJ, No. 13-1135, 2015 WL 4932122 (D.D.C. Aug. 18, 2015) (Boasberg, J.)

Re: Request for records concerning plaintiff's prosecution

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

  • Exemption 7(C):  The court holds that "OPR . . . properly withheld [certain] records under Exemption 7(C)."  Regarding the privacy interests at issue in OPR's withholding of records concerning an AUSA, the court finds that "[o]n the Goliath-sized totem pole of government bureaucracy, [the] AUSA . . . falls between a staff-level career civil servant and a political appointee or senior manager."  "Choosing between the two ends of the supervisory spectrum, then, his job position is thus best classified—for the purposes of his privacy interests—as a staff attorney."  "Having not been publicly charged with any crime, therefore, [the AUSA] maintains a significant privacy interest in not having the contents of an OPR investigation divulged to the public."  Against this, the court finds that "there is no indication that the specific records he sought would reveal anything about the inner workings of DOJ or prosecutorial misconduct generally."
  • Exemption 5, Attorney Work-Product Privilege:  The court holds that "OPR properly withheld [certain] records . . . under the attorney work-product privilege."  "The Court's in camera review reveals that these records consist of emails from or to OPR attorneys or at their instruction discussing the impact of a certain issue on the pending FOIA litigation."  The court finds that "[t]he release of this information would reveal the mental processes of the attorneys involved in this litigation."
  • Exemption 5, Deliberative Process Privilege:  The court finds that "[d]efendant also properly withheld certain emails between OPR attorneys under the deliberative-process privilege."  "Those emails . . . contained deliberations relating to how OPR would proceed in the investigation of [the] AUSA."  "They are, as Defendant asserts, predecisional and deliberative because they reflect OPR's decisionmaking process in how to resolve the [AUSA] investigation."  The court finds that "[t]he release of this information could stifle frank and open discussion between OPR employees."

The court also rejects plaintiff's argument "that the deliberative-process privilege is inapplicable because of the so-called government-misconduct exception."  The court finds that "in camera review of the documents reveals that they 'do not reflect any governmental impropriety, but rather are part of the legitimate governmental process [conducted by OPR] intended to be protected by Exemption 5.'"

  • Procedural Requirements, "Reasonably Segregable" Obligation:  "The Court's in camera review reveals that the record contains many similar fragments of information, the release of which would carry no informational value."  "Segregability is thus not required."

Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Exemption 7(C)
Procedural Requirements, “Reasonably Segregable” Obligation
Updated January 12, 2022