Bartko v. DOJ, No. 13-1135, 2019 WL 3532734 (D.D.C. Aug. 2, 2019) (Boasberg, J.)

Bartko v. DOJ, No. 13-1135, 2019 WL 3532734 (D.D.C. Aug. 2, 2019) (Boasberg, J.)

Re:  Request for records concerning plaintiff's criminal trial, alleged misconduct by employees including an Assistant U.S. Attorney during course of trial, and handling of that misconduct

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

• Litigation Considerations:  The court rejects the FBI's argument "that the appellate court's decision did not disrupt this Court's holding that the thumb drive was validly withheld."  "The agency argues that because the Circuit's decision explicitly discussed only Exemption 3, the Court's original ruling that Exemption 7(C) could also support the withholding remains intact."  "Although this seems a facially reasonable position, the Court disagrees."  "It would be anomalous for the Court of Appeals to have waded into the Exemption 3 issue totally without cause."  "The Court can only conclude that the Court of Appeals found this Court's 7(C) discussion to be dicta or else worthy of reconsideration."  "The Court will permit the Bureau either to process the documents or to renew its Motion for Summary Judgement, in which it may argue either that Exemption 3 still applies or that 7(C) does."
   
• Exemption 5, Deliberative Process Privilege:  "The Court has now reviewed in camera these documents, which include an email exchange and attachments, the subject of which is the editing of the decision to close the investigation into [the] AUSA."  "Despite escaping prior explicit designation, these documents fall squarely within Exemption 5's deliberative-process privilege and will therefore elude [plaintiff's] grasp."  "The redlining and editing of these documents (while largely cosmetic) 'reflect the give-and-take of the consultative process' that make a document deliberative."  "Given that he already possesses the final drafts of these documents, . . . Plaintiff cannot believe he is missing much."
   
• Exemption 6:  "The Court has reviewed the partially redacted 23 pages in camera and it agrees that the identifying information about complainants should be withheld."  "Here, the government has disclosed [certain] complaints themselves – thus shedding light on [AUSA's] activities – but it need not reveal the criminally prosecuted complaints' identities or facts about their cases that could identify them."  "As a result, the public interest in the redactions does not outweigh privacy concerns, especially when the Court considers the chilling effect this could have on future complainants."
   
• Litigation Considerations:  "The Court reviewed . . . documents [withheld by OPR] in camera and confirmed them to be the same documents that were the subject of prior litigation."  "It has already rendered a final decision that certain portions of [these documents] are protected by Exemptions 5, 6, and 7(C)."  "It left Defendant with only the charge of either showing that portions of those documents were not reasonably segregable or of releasing non-exempt portions."  "EOUSA thereafter complied, releasing excerpts of the three pages."  "This Court determined that EOUSA had 'met its production burden' in regard to these documents and others."  "Yet another look at these decisions is unnecessary."