BARTKO v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 147

MEMORANDUM AND OPINION re 146 Order on Motion for Summary Judgment. Signed by Judge James E. Boasberg on 2/9/15. (lcjeb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GREGORY BARTKO,
Plaintiff,
v.

Civil Action No. 13-1135 (JEB)

UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.

MEMORANDUM OPINION
Pro se Plaintiff Gregory Bartko, who is currently serving a lengthy prison term for whitecollar offenses, has sent a spate of Freedom of Information Act requests to various federal
agencies, hoping to obtain records demonstrating prosecutorial misconduct in his case. The
Court has already issued several other Opinions addressing the merits of certain requests, see,
e.g., Bartko v. DOJ, 2014 WL 3834343 (D.D.C. Aug. 5, 2014), and it now examines the Internal
Revenue Service’s withholding of 136 pages under certain FOIA exemptions. Believing that the
IRS has appropriately declined to release these records, the Court will grant its Partial Motion for
Summary Judgment and deny Plaintiff’s.
I.

Background
As a prior Opinion set forth in some detail the factual background of this suit, see id., the

Court will now describe only those events that directly relate to the Motion considered here.
The facts relating to the particular FOIA request at issue, moreover, are essentially undisputed.

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On January 7, 2013, Bartko submitted a request to the United States Postal Inspection
Service (USPIS) seeking “all records and/or data contained in the files of your agency and
specifically under my name and/or identifier assigned to my name as set forth above.” Def.
Mot., Att. 1 (Declaration of Kimberly Williams), Exh. A (Letter) at 1. The letter then listed
specific types of files that were included within his request. See id. After a detailed search
uncovered over 1000 pages, USPIS referred some of the documents to other agencies for direct
responses to Plaintiff. See Williams Decl., ¶¶ 4, 10. Of relevance to this Motion, 136 pages
were referred to the IRS because those documents had originated there. See Def. Mot., Att. 2
(Declaration of Michael Franklin), ¶ 3. (As they derived from a joint criminal investigation
undertaken by the FBI, the IRS, and USPIS, they had ultimately wound up with that last agency.
See id., ¶ 8.)
According to the IRS, these documents consist solely of memoranda of interviews with
witnesses in an IRS criminal investigation. See id. That investigation, notably, was of someone
other than Bartko. See id. Each memorandum was authored by IRS Criminal Investigation
Special Agent William DeSantis, see id., and all were withheld under FOIA Exemptions 6 and
7(C).
Bartko filed suit here on July 26, 2013, naming a congeries of agency Defendants. On
May 23, 2014, USPIS and the IRS jointly moved for partial summary judgment, see ECF No. 58,
and Plaintiff cross-moved on June 6. See ECF No. 65. The Court then granted many extensions,
in part because the parties wished to await its rulings related to other agencies’ motions. See,
e.g., Minute Order of Nov. 7, 2014. USPIS eventually withdrew its part of the Motion and will
file a renewed pleading, while the IRS decided to stand on its initial brief. See ECF No. 143

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(Motion for Extension of Time) at 1. The Court thus considers only the two cross-motions, ECF
Nos. 58 & 65.
II.

Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the evidence in the light most favorable to the non-moving party. See Sample, 466 F.3d
at 1087.
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In such cases, the
agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3
(1989). The Court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981).
III.

Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361

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(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). “Unlike the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” U.S. Dept. of Agriculture v. Reporters Comm., 489 U.S. 749, 755 (1989) (quoting 5
U.S.C. § 552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong
presumption in favor of disclosure’ . . . .” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26,
32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
With these standards in mind, the Court will consider the single issue raised by the
Motion: is the IRS’s invocation of Exemption 6 or 7(C) appropriate? In doing so, the Court
begins with the parameters of those two exemptions, balances the interests involved here, and
then analyzes segregability.
A. Exemptions 6 and 7(C)
Exemption 6 protects “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). Exemption 7(C) excludes “records of information compiled for law enforcement
purposes . . . to the extent that the production of such law enforcement records or information . . .
could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). Both provisions require agencies and reviewing courts to “balance the
privacy interests that would be compromised by disclosure against the public interest in release

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of the requested information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993)
(quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).
Although both exemptions require agencies and reviewing courts to undertake the same
weighing of interests, the balance tilts more strongly toward nondisclosure in the context of
Exemption 7(C) because its “privacy language is broader than the comparable language in
Exemption 6 in two respects.” Reporters Comm., 489 U.S. at 756. First, Exemption 6
encompasses “clearly unwarranted” invasions of privacy, while Exemption 7(C) omits the
adverb “clearly.” See id. Second, Exemption 6 prevents disclosures that “would constitute” an
invasion of privacy, while Exemption 7(C) targets disclosures that “could reasonably be
expected to constitute” such an invasion. See id. Both differences are the result of specific
amendments, reflecting Congress’s conscious choice to provide greater protection to lawenforcement materials than to personnel, medical, and other similar files. See id. Courts have
accordingly held that Exemption 7(C) “establishes a lower bar for withholding material” than
Exemption 6. See ACLU v. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011); see also Beck, 997
F.2d at 1491.
As a result, if the records and information the IRS seeks to withhold in this case were
“compiled for law enforcement purposes,” the Court may only address whether the Service has
properly withheld these documents under Exemption 7(C), and there is no need to consider the
higher bar of Exemption 6. Plaintiff here never contests the fact that the records were compiled
for law-enforcement purposes. Nor would he have much luck doing so given that they all relate
to an IRS criminal investigation. See Franklin Decl., ¶ 8.
This threshold question answered, the first step in the Exemption 7(C) analysis is to
determine whether there is, in fact, a privacy interest in the materials sought. See ACLU, 655

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F.3d at 6. In this context, the Supreme Court has rejected a “cramped notion of personal
privacy” and emphasized that “privacy encompass[es] the individual’s control of information
concerning his or her person.” Reporters Comm., 489 U.S. at 763. To constitute a privacy
interest under FOIA, the claimed interest must be “substantial.” Multi Ag Media LLC v. USDA,
515 F.3d 1224, 1229-30 (D.C. Cir. 2008); see also Roth v. Dep’t of Justice, 642 F.3d 1161, 1174
(D.C. Cir. 2011). “[S]ubstantial,” however, “means less than it might seem. A substantial
privacy interest is anything greater than a de minimis privacy interest.” Multi Ag Media, 515
F.3d at 1229-30.
In the context of Exemption 7(C), it is well established that “individuals have a strong
interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. FBI, 737
F.2d 84, 91-92 (D.C. Cir. 1984); see also Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990)
(“It is surely beyond dispute that ‘the mention of an individual’s name in a law enforcement file
will engender comment and speculation and carries a stigmatizing connotation.’”) (quoting
Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 1987)); Nation Magazine, Wash. Bureau v.
Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995) (“[I]ndividuals have an obvious privacy
interest . . . in keeping secret the fact that they were subjects of a law enforcement
investigation.”). Even the mere acknowledgement of the existence of records relating to criminal
investigations (let alone their contents) can constitute an invasion of privacy. This privacy
interest is strongest where the individuals in question “have been investigated but never publicly
charged.” ACLU, 655 F.3d at 7. As far as the Court knows, this is the case here.
It is not just the subject of the investigation who has privacy rights, however. “[T]hird
parties who may be mentioned in investigatory files, as well as . . . witnesses and informants who
provided information during the course of an investigation,” have a privacy interest in the

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contents of law-enforcement records. See Nation Magazine, 71 F.3d at 894; see also Kimberlin
v. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (“It goes almost without saying,
moreover, that individuals other than [the target of the investigation] whose names appear in the
file retain a strong privacy interest in not being associated with an investigation involving
professional misconduct . . . .”). Indeed, this interest is so strong that our Circuit has “adopted a
categorical rule permitting an agency to withhold information identifying private citizens
mentioned in law enforcement records, unless disclosure is ‘necessary in order to confirm or
refute compelling evidence that the agency is engaged in illegal activity.’” Schrecker v. Dep’t of
Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (quoting SafeCard, 926 F.2d at 1206).
B. Balancing of Interests
Having set forth the general privacy interests related to criminal investigations, the Court
must now assess whether such interests exist here. This is not an onerous task. The IRS explains
that the subject of the investigation was a third person, not Bartko. According to Michael
Franklin, an attorney in the IRS’s Office of the Associate Chief Counsel who has reviewed the
136 pages at issue, all of these records “provide[] details of the third party criminal
investigation.” Franklin Decl., ¶¶ 1, 15. “The dialogue, individuals interviewed, subject matter,
and other information appearing on these pages would provide sufficient information, if
revealed, to identify the third party who is the subject of the investigation.” Id., ¶ 15. In
addition, “the material reflects the names, telephone numbers, social security numbers, and
taxpayer identification numbers of witnesses interviewed in the furtherance of the USPIS
investigation of a third party.” Id. The IRS has thus placed a significant privacy weight on the
scales.

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To offset this weight, Bartko produces very little. The only interest he articulates that
could remotely be labeled as public is that “within the 136 pages . . . , each of the individuals
interviewed by S/A DeSantis were either co-defendants, alleged co-conspirators or witnesses
who’s [sic] statements also bear relevance to Bartko’s investigation and prosecution.” Id. at 1516. But relevance is not the test. The question under Schrecker is whether disclosure is
necessary in the public interest to determine if the agency engaged in illegal activity. As
Plaintiff does not even assay this hurdle, the Court cannot find he has surmounted it. In an
ultimate balancing, something in the privacy bowl outweighs nothing in the public-interest bowl
every time.
C. Segregability
Plaintiff last objects – in rather summary fashion – that Defendants’ segregability
analysis is insufficient. While the Government is “entitled to a presumption that [it] complied
with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582
(D.C. Cir. 2013), this presumption of compliance does not vitiate its obligation to carry its
evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v.
U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). The agency must provide “a
detailed justification and not just conclusory statements to demonstrate that all reasonably
segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C.
2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97
F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained nonsegregability
of documents with “reasonable specificity”). “Reasonable specificity” can be established
through a “combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office
for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).

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Although Franklin’s testimony on segregability is somewhat conclusory, see Franklin
Decl., ¶¶ 17-20, the Court sees no reason here to question it. The documents at issue are all
memoranda of witness interviews. Since any disclosure of the identity of either the subject of
the investigation or witnesses would be improper, it is highly unlikely that any material in these
memoranda could be released without compromising such information. The Court thus
concludes that the IRS has passed the segregability examination.
IV.

Conclusion
For the foregoing reasons, the Court will grant summary judgment in favor of the IRS on

these documents referred by the USPIS. An Order consistent with this Opinion shall issue this
day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 9, 2015

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