Skip to main content

Bartko v. DOJ, No. 13-1135, 2016 WL 829967 (D.D.C. Mar. 3, 2016) (Boasberg, J.)


Bartko v. DOJ, No. 13-1135, 2016 WL 829967 (D.D.C. Mar. 3, 2016) (Boasberg, J.)

Re: Request for records concerning investigation and prosecution of plaintiff

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

  • Litigation Considerations, Adequacy of Search:  "[T]he Court finds that the agency's search was reasonably calculated to uncover all responsive documents."  The court first relates that "[it] previously found [the United States Postal Inspection Service (USPIS)] search inadequate because none of its declarations stated that the agency had searched the full universe of potentially responsive materials."  Now, the court notes that "[t]he agency has submitted two declarations . . . that aver that '[t]here are no other systems of records in the USPIS that would contain the records that were requested' beyond the systems that were searched."  The court finds that "[defendant] has . . . fully described that methodology in two affidavits and, most importantly, has incanted the 'magic words' concerning the adequacy of the search—namely, the assertion that USPIS searched all locations likely to contain responsive documents."  Responding to Plaintiff's arguments, the court finds "that identifying a handful of documents that an agency failed to uncover does not, in itself, demonstrate that a search was inadequate."  The court finds that "[plaintiff] does not identify a particular database or set of records that he believes the agency has not, but should have, searched, so even if the emails and notes he points to were inadvertently overlooked, they do not evince an insufficient search."
  • Procedural Requirements, Searching for Responsive Records:  Also responding to plaintiff's arguments concerning defendant's search, the court finds that "[t]he plain language of the request—no matter how liberally construed—simply does not support [plaintiff's] current position that the agency was required to search for files related to 'three alleged co-conspirators and [an] AUSA[.]"  The court holds that "[t]he request is not 'reasonably susceptible to the broader reading' [plaintiff] now seeks to impose on it."
  • Exemption 3:  "The Court . . . concludes that [responsive] . . . bank checks are properly withheld."  The court relates that "[d]efendant cites Exemption 3 in withholding bank checks subpoenaed for the grand-jury investigation in [plaintiff's] case."  The court notes that, in conjunction with Exemption 3, defendants rely on "Federal Rule of Criminal Procedure 6(e) [which] bars the disclosure of matters occurring before a grand jury."  The court also notes that "[a]lthough USPIS had not initially claimed this exemption in its prior summary-judgment motions—instead invoking Exemption 7(D)—it now states that disclosing the checks would violate the secrecy of the grand-jury proceedings."  The court finds that "[t]his issue need not detain the Court because [plaintiff] expressly concedes that the bank checks are covered by Exemption 3."
  • Exemptions 6 and 7(C):  The court holds "that the privacy interests asserted outweigh any potential public interest that might be served by releasing the withheld materials."  The court first briefly notes that "[i]n this case, [plaintiff] concedes that the records he wants were compiled for law-enforcement purposes—after all, that is his reason for seeking them." Then, "[t]he Court . . . concludes that all . . . of [the] individuals whose identification or other information may be contained in the records USPIS compiled for law-enforcement purposes enjoy a substantial privacy interest in those materials."  Additionally, the court finds that "[plaintiff] presents no evidence indicating that the 37 individuals whose names were accidentally released have themselves waived their privacy interests in any USPIS records."  Turning to the public interest, the court finds that, "[a]s relevant here, 'when governmental misconduct is alleged as the justification for disclosure, the public interest is insubstantial unless the requester puts forward compelling evidence that the agency ... is engaged in illegal activity and shows that the information sought is necessary in order to confirm or refute that evidence.'"  "'A mere desire to review how an agency is doing its job, coupled with allegations that it is not [doing its job], does not create a public interest sufficient to override the privacy interests protected by Exemption 7(C).'"  "The Court agrees that the mere fact that [plaintiff] may also have a personal interest in the misconduct he believes plagued his criminal prosecution does not, standing alone, eliminate the public's general interest in uncovering patterns of prosecutorial misconduct."  "But '[w]hen the subject of such [investigatory documents] is a private citizen and when the information is in the Government’s control as a compilation, rather than as a record of 'what the Government is up to,' the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir."  The court finds that plaintiff's "vague statements [on public interest] are simply not enough."  "Although the Court could have ended its analysis here, in order to ensure that the government was not withholding any smoking guns, the Court conducted an in camera review of all the withheld pages covered by Exemption 7(C)."  "Those materials did not contain any information that appeared to reflect prosecutorial or agency misconduct."
  • Waiver:  Regarding plaintiff's waiver arguments concerning Exemptions 6 and 7(C), the court holds that "disclosure of some information about an individual—whether erroneous or intentional—does not vitiate the privacy interests of that individual in other information about herself that might be contained in a law-enforcement file."  "The agency's inadvertent disclosure of those names, moreover, hardly constitutes a waiver of privacy interests."  "As another court in this district recently explained, the 'privacy interest at stake belongs to the individual, not the government agency .... [And t]hat interest can be waived, but only by the individual whose interest is affected.'"  Additionally, regarding documents not covered by this concept, the court finds that "[a]bsent specific identification of substantially identical records already released, the Court finds Plaintiff’s public-domain argument does not alter the calculus that permits USPIS to withhold relevant records."  The court finds that "[plaintiff] has also failed to specify which USPIS records he believes are substantially identical to the already-released names or information."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "USPIS's declarations, its detailed Vaughn Index, and the Court's own in camera examination of the withheld materials all demonstrate that the agency has fulfilled its obligation to release reasonably segregable nonexempt materials."  "The Court, in an abundance of caution, . . . undertook its own in camera review of the 238 pages withheld."  "After conducting such review, the Court is satisfied that no additional materials need be released, for '[t]he non-exempt portions of these documents that have been redacted are inextricably intertwined with exempt portions and they need not be further segregated.'"
  • Litigation Considerations, Discovery:  "The Court does not believe [plaintiff] has demonstrated ongoing deficiencies or otherwise 'made a sufficient showing that the agency acted in bad faith' in processing his request or complying with the Court’s Orders in this case."  "Given that 'discovery is an extraordinary procedure in a FOIA action,' . . . the Court will deny [plaintiff's] Motion."
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 6
Exemption 7(C)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Discovery
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Searching for Responsive Records
Waiver and Discretionary Disclosure
Updated January 24, 2022