Bartko v. DOJ, No. 17-781, 2019 WL 1567815 (D.D.C. Apr. 11, 2019) (Boasberg, J.)

Bartko v. DOJ, No. 17-781, 2019 WL 1567815 (D.D.C. Apr. 11, 2019) (Boasberg, J.)

Re:  Request for records concerning alleged prosecutorial misconduct connected to plaintiff's conviction for fraud

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

• Litigation Considerations, Adequacy of Search:  Responding to plaintiff's first objection, "[the] Court has repeatedly held that a FOIA declarant does not have to personally conduct each aspect of a search and that affidavits based on hearsay can be acceptable."  "[Plaintiff's] second argument presents a thornier issue: how did the search of the email-archive system apparently yield emails beyond the three-year deletion window?"  "Without a more adequate explanation from Defendants, the Court feels compelled to deny their Motion on this part of the FOIA request."  "EOUSA will either have to conduct a further electronic search outside the three-year window or submit an affidavit explaining that the older emails were indeed located in the physical boxes searched."
   
• Exemption 7(C):  The court finds defendant's use of Exemption 7(C) appropriate.  First, the court finds that "[a]s all of the documents constitute correspondence with prosecutors regarding criminal cases . . . they are plainly law-enforcement records."  Second, the court finds that "[t]he defendants referenced in the withheld documents maintain a significant privacy interest in the potentially embarrassing particulars of their plea negotiations and specified malfeasance."  Finally, the court finds that "Plaintiff may well be concerned that they show improper promises or cooperation agreements against him, but there is no such discussion therein."  "As a result, disclosure does not serve the public interest in revealing misconduct of the type originally raised in [plaintiff's] appeal from his criminal trial."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court, sua sponte, considers one more issue: segregability."  "Here, the Court's review has determined that segregability would effectively render these documents worthless to [plaintiff], as any remaining material would be meaningless."  "All 43 pages, therefore, were properly withheld under Exemption 7(C)."