BARTKO v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 179

MEMORANDUM AND OPINION re 178 Order on Motion for Summary Judgment. Signed by Judge James E. Boasberg on 5/6/15. (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
Plaintiff Gregory Bartko, currently serving a 23-year prison sentence for securities fraud,
is seeking to exonerate himself by proving prosecutorial misconduct. To that end, he has
brought this pro se suit under the Freedom of Information Act against a number of Department
of Justice components, including, inter alia, the Executive Office of United States Attorneys and
the Office of Professional Responsibility. This Court has already issued several other Opinions
addressing the merits of related FOIA requests in this case. See, e.g., Bartko v. United States
Dep’t of Justice, No. 13-1135, 2015 WL 513272 (D.D.C. Feb. 9, 2015). This Opinion resolves
the latest skirmish over the release of documents pertaining to his prosecution.
Bartko asserts that he is entitled to partial summary judgment against EOUSA and that
the Court should compel the agency to release responsive records in its possession
notwithstanding his refusal to pay assessed processing fees. EOUSA, conversely, contends that
partial summary judgment in its favor is justified on the grounds that its redactions are proper
and that Plaintiff did not merit a fee waiver. The Court sides with the agency on this one.

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I.

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

v. United States Dep’t of Justice, No. 13-1135, 2014 WL 3834343, at *1 (D.D.C. August 5,
2014), the Court will now describe only those events that directly relate to the present Motions.
Such events actually start with a different agency. On July 26, 2014, Plaintiff submitted a
FOIA request to OPR, seeking records relating to himself and his criminal case. See Pl. Mot.,
Exh. 1 (July 26, 2014, letter) at 1. He also included in this letter a request for a fee waiver. See
id. at 1-2. OPR issued its final determination in response on September 10, in which it explained
that it had identified 610 pages of records that primarily related to EOUSA, and it had thus
referred those records there for review and release. See Pl. Mot., Exh. 2 (September 10, 2014,
letter) at 1. (EOUSA elsewhere calculates the number of pages at 620, see Def. Mot. & Opp.,
Att. 1 (Declaration of David Luczynski), Exh. C (EOUSA Final Action Letter) at 1, which seems
correct given the breakdown discussed shortly. The Court will thus use this number.)
As Plaintiff received no documents for several months thereafter, he sought relief from
this Court in his Second Supplemental Complaint, which he filed on December 16, 2014. See
ECF No. 126. On January 13, 2015, he moved for partial summary judgment, arguing that
EOUSA had failed to timely process or release the referred records. He also argued that he had
exhausted administrative remedies because approximately three months had passed since
EOUSA received the September 10, 2014, referral from OPR, and this period exceeded the
twenty working days in which it was required to respond. See ECF No. 139 at 3-8 (citing 5
U.S.C. § 552(a)(6)(A)(i)).
On February 9, 2015, EOUSA finally responded by releasing 89 pages in full and 12
pages in part. See Final Action Letter. It appears that at least some of the delay was caused by

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the initial group of records’ being misplaced or lost in transmission between OPR and EOUSA.
See Response re Motion for Leave to File Second Supplement Complaint, Exh. 1 (Supplemental
Declaration of David Luczynski) at 3. While the agency’s form letter did not specifically
address Bartko’s fee-waiver request, it did explain that – in compliance with DOJ regulations –
the first 101 pages were being released without charge, but the 519 additional pages would be
subject to payment of a $51.90 fee. See EOUSA Final Action Letter at 1. Plaintiff was informed
that if he objected to paying the fee, he could appeal this assessment to the Office of Information
Policy. See id. at 2. Bartko submitted an administrative appeal to OIP on March 5, 2015, and
that appeal is currently pending. See Pl. Opp. & Reply at 6.
EOUSA has now cross-moved to dismiss Plaintiff’s claims and also seeks partial
summary judgment.
II.

Legal Standard
Given the posture of Defendant’s Motion, the Court sets out the standard for both a

motion to dismiss and one for summary judgment.
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a suit when the
complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a motion to
dismiss, the Court must “treat the complaint’s factual allegations as true and must grant plaintiff
the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal quotation marks
omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not accept as true,
however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by
the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual allegations”

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are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to
state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation
omitted). Though a plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very
remote and unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)).
In evaluating the sufficiency of a complaint under Rule 12(b)(6), courts may consider
“the facts alleged in the complaint, any documents either attached to or incorporated in the
complaint and matters of which [the court] may take judicial notice.” Equal Emp’t Opportunity
Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). “Documents
that are referenced in, or are an integral part of, the complaint are deemed not ‘outside the
pleadings’” for purposes of a motion to dismiss for failure to state a claim. Norris v. Salazar,
885 F. Supp. 2d 402, 407 n.9 (D.D.C. Aug. 17, 2012).
Summary judgment, conversely, 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 conflicting evidence in the light most favorable to the
non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless

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the opposing party submits his own affidavits, declarations, or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of United States Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a
FOIA case, a court may grant summary judgment based solely on information provided in an
agency's affidavits or declarations when they “describe 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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks 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.’” United States Dep’t of Justice v. Reporters Comm. for the Freedom of the Press, 489
U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
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 the Air Force v. Rose, 425 U.S. 352, 361
(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,

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152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Reporters Comm., 489 U.S. at 755. “Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary and 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.’” Id. (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 United States Dep’t of State
v. Ray, 502 U.S. 164, 173 (1991)).
Although the parties’ Cross-Motions can be difficult to follow and do not always address
the same matters, the Court can tease out two separate issues: (1) the propriety of the
withholdings in the initial disclosure of 101 pages, and (2) EOUSA’s treatment of fees relating to
the remaining documents in its possession.
A. Documents Produced
EOUSA initially contends that, pursuant to FOIA Exemption 5, it properly redacted
certain information from 12 of the 101 pages of documents it released on February 9, 2015.
Plaintiff apparently concedes that these partial redactions do contain information covered by this
exemption. See Pl. Opp. & Reply at 12-13, 24. Although Bartko did not “intend to waive any
challenge to any of the [remaining 519 pages of] records being withheld by the EOUSA,” he did
acknowledge that the disclosed and redacted records

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appear to be the type of communications often times exchanged
between an attorney and a client or another attorney representative
of a client. Such communications are generally privileged and not
subject to civil discovery under the Federal Rules of Civil
Procedure and oft times exempt from release under FOIA
Exemption (b)(5).
Id. at 13. The Court, therefore, will not further scrutinize the admittedly proper invocation of
Exemption 5, and it will grant EOUSA’s Motion for Partial Summary Judgment with respect to
these 101 pages.
B. Fees
The remaining 519 pages, however, represent more hotly contested territory. The dispute
centers not on redactions or withholdings, but instead on fees assessed. Defendant preliminarily
seeks dismissal on the ground that Plaintiff failed to exhaust his administrative remedies in
connection with seeking a fee waiver. Even if he has exhausted, EOUSA maintains that no fee
waiver is warranted here. Plaintiff, in turn, takes issue with both of these positions and also
alleges bad faith on the agency’s part. The Court separately addresses each of these three
contentions. 1
1. Exhaustion
Exhaustion of administrative remedies in the FOIA context is certainly not a road less
travelled by fellow judges on this district court. As one noted:
[E]xhaustion of administrative remedies is a mandatory
prerequisite to a lawsuit under FOIA, which means that a requester
under FOIA must file an administrative appeal within the time
limit specified in an agency’s FOIA regulations or face dismissal
of any lawsuit complaining about the agency’s response. Although
exhaustion of a FOIA request is not jurisdictional because the
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One other minor point deserves mention here. Although Bartko confines his Second Supplemental Complaint to
the aforementioned 620 pages of documents, both sides in their briefing also incorporate reference to an additional
320 pages referred by OPR to EOUSA on December 17, 2014, the day after Plaintiff filed that Complaint. See, e.g.,
Pl. Mot. at 8. The Court will not examine this issue because it is both outside of the operative Complaint and
because the Court cannot discern what amount of additional fees relates to these records.

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FOIA does not unequivocally make it so, still as a jurisprudential
doctrine, failure to exhaust precludes judicial review if [1] the
purposes of exhaustion and [2] the particular administrative
scheme support such a bar.
Ctr. For Biological Diversity v. Gutierrez, 451 F. Supp. 2d 57, 65 (D.D.C. 2006) (citations and
internal quotation marks omitted); see also Bloomgarden v. United States Dep’t of Justice, 10 F.
Supp. 3d 146, 151 (D.D.C. 2014) (citing Oglesby v. Dep’t of the Army, 920 F.2d 57, 61 (D.C.
Cir. 1990)) (exhaustion requirement gives agency opportunity to exercise discretion and
expertise and develop factual record to support its decision).
More relevant for our purposes, a FOIA requester may not seek judicial review of an
agency’s denial of a fee-waiver request until he administratively appeals the denial or pays the
assessed fee. See Pruitt v. Executive Office for United States Attorneys, Dep’t of Justice, No.
01-5453, 2002 WL 1364365, at *1 (D.C. Cir. Apr. 19, 2002); Trulock v. United States Dep’t of
Justice, 257 F. Supp. 2d 48, 52-53 (D.D.C. 2003). And courts typically stay judicial proceedings
pending the outcome of the administrative-appeal process out of concerns for maximizing
judicial economy. See Lee v. United States Dep’t of Justice, 235 F.R.D. 274, 284 (W.D. Pa.
2006) (“[I]t would maximize judicial economy for the parties to attempt to resolve these new
issues during the administrative appeal process before addressing them with the Court.”); Dennis
v. CIA, No. 12-4207, 2012 WL 5493377, at *2 (E.D.N.Y. Nov. 13, 2012) (“[T]o the extent [the
plaintiff] seeks to argue that she constructively exhausted her administrative remedies because
the CIA and the DEA failed to decide her appeal within 20 days, her argument fails. Both the
CIA and DEA indicate that [her] administrative appeals are being processed.”).
In this case, Bartko does not deny that his fee-waiver appeal is still pending, but he notes
an exception to the exhaustion requirement. The “constructive-exhaustion” doctrine excuses a
plaintiff from exhausting administrative remedies prior to seeking judicial review where an
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agency does not respond to a perfected FOIA request within the statutory twenty-day time limit.
In such an instance, the requester is deemed to have exhausted his administrative remedies and
may seek immediate recourse to the courts “to compel the agency’s response to a FOIA request.”
Oglesby, 920 F.2d at 64; Nurse v. Sec’y of the Air Force, 231 F. Supp. 2d 323, 328 (D.D.C.
2002). “Once constructive exhaustion occurs, any available administrative appeal – i.e., actual
exhaustion – becomes permissive in the sense in which the term is used here; the requester may
pursue it, but his failure to do so does not bar a lawsuit.” Spannaus v. United States Dep’t of
Justice, 824 F.2d 52, 58 (D.C. Cir. 1987) (citing 5 U.S.C. § 552(a)(6)(C)).
Bartko’s initial letter included a request both for documents and for a fee waiver. See
Letter of July 26, 2014. By the time he filed his Second Supplemental Complaint on December
16, 2014, more than two months had passed since OPR referred the 620 pages to EOUSA. See
Pl. Mot. at 7-8. EOUSA’s failure to respond during that time means that Plaintiff constructively
exhausted his administrative remedies.
Constructive exhaustion, it must be emphasized, does not entitle Bartko to free copies of
the remaining documents. Rather, it allows him judicial review of his fee-waiver request without
any requirement that he await the result of his administrative appeal. See Monaghan v. FBI, 506
F. App’x 596, 599 (9th Cir. 2013) (agency’s failure to timely respond to fee-waiver request did
not excuse plaintiff from ultimate responsibility of paying assessed fees); Pollack v. Dep’t of
Justice, 49 F.3d 115, 119-20 (4th Cir. 1995) (“Nowhere in the [FOIA] statute or in the
Department of Justice’s regulations can we find a provision which states that when an agency
acts untimely, it is obliged to provide the requester with unlimited documentation free of charge.
On the contrary, fees are mandated in all but limited circumstances, see 28 C.F.R. § 16.10(a),

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and payment may even be required in advance as a condition of further agency attention to the
request.”) (emphasis in original).
The question thus remains: is a fee waiver warranted here?
2. Fee Waiver
Agencies are authorized to charge requesters fees to recover costs of processing FOIA
requests and to promulgate regulations outlining procedures and guidelines for charging those
fees. See 5 U.S.C. § 552 (a)(4)(A)(i). “Under well-established case law, fee waiver requests
must be made with ‘reasonable specificity,’ and based on more than ‘conclusory allegations.’
[The Court is] also mindful that Congress amended FOIA to ensure that it be ‘liberally construed
in favor of waivers for noncommercial requesters.’” Judicial Watch, Inc. v. Rossotti, 326 F.3d
1309, 1312 (D.C. Cir. 2003) (internal citations omitted). The requesting party bears the burden
of proof. See Citizens for Responsibility & Ethics in Washington v. United States Dep’t of
Educ., 593 F. Supp. 2d 261, 268 (D.D.C. 2009) (citing Larson v. CIA, 843 F.2d 1481, 1483
(D.C. Cir. 1988)).
A reduction or waiver of fees is required where disclosure is in the “public interest
because it is likely to [1] contribute significantly to public understanding of the operations or
activities of the government and [2] is not primarily in the commercial interest of the requester.”
5 U.S.C. § 552 (a)(4)(A)(iii). Since EOUSA concedes that disclosure is not primarily in
Bartko’s commercial interest, see Def. Mot. & Opp. at 10, the following “public understanding”
factors are all that are relevant: (1) whether the records concern the operations or activities of
the government, (2) whether the disclosure is likely to contribute to an understanding of
government operations or activities, (3) whether disclosure will contribute to public
understanding, and (4) the significance of the contribution to increasing public understanding.

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See 28 C.F.R. § 16.11(k)(2)(i)-(iv). For a request to be in the “public interest,” all four criteria
must be satisfied. See Marino v. Dep’t of Justice, 993 F. Supp. 2d 14, 20 (D.D.C. 2014) (citing
Judicial Watch v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004)).
In addition to these factors, the Court is also mindful of which arguments may properly
be considered at this stage. In evaluating a fee-waiver claim, courts generally do not consider
arguments that an agency failed to make at the administrative level before the plaintiff brought
suit. See Bensman v. Nat’l Park Serv., 806 F. Supp. 2d 31, 37 (D.D.C. 2011). As another court
in this district noted, however, that principle applies only where the plaintiff actually, and not
constructively, exhausted his administrative remedies. See Rosenberg v. United States Dep’t of
Immigration & Customs Enforcement, 954 F. Supp. 2d 1, 11 (D.D.C. 2013). Where a plaintiff
constructively exhausts, an agency cannot be penalized for failing to make an argument in the
administrative process that never took place. See id. Because Plaintiff filed suit in reliance on a
constructive-exhaustion theory, therefore, the Court is not barred from considering the agency’s
arguments made in this litigation, even though it did not raise these arguments in its initial denial
of the fee waiver.
The parties primarily differ over the fourth regulatory factor, which states in full:
The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute “significantly” to
public understanding of government operations or activities. The
public’s understanding of the subject in question, as compared to
the level of public understanding existing prior to the disclosure,
must be enhanced by the disclosure to a significant extent.
Components shall not make value judgments about whether
information that would contribute significantly to public
understanding of the operations or activities of the government is
“important” enough to be made public.
28 C.F.R. § 16.11(k)(2)(iv). EOUSA concedes here that while Bartko has asserted at least a de
minimis “public interest in these records, he [also] makes it clear that they are sought to bolster
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his habeas petition.” Def. Mot. & Opp. at 10-11. As such, EOUSA points out, “Plaintiff [has]
failed to establish how disclosure of the requested records would significantly contribute to the
public’s understanding of government operations or activities.” Id. (emphasis added).
Bartko rejoins that the sought-after documents play an important role in furthering the
public interest. He contends that the alleged prosecutorial misconduct in his case is part of a
pattern of “shameful conviction[s],” and uncovering such conduct is in the public interest. See
Pl. Opp. & Reply at 21. In his estimation, the potential personal benefit from receiving the
documents is inconsequential: “The fact that those same records may assist [Plaintiff] in
achieving exoneration from his conviction by supporting his habeas petition is of no great
moment as long as there are public benefits to be gained as well.” Id. at 22.
This disclaimer is unconvincing. As is evident from Plaintiff’s filings, access to the
records is “crucial” precisely because he seeks evidence to support his habeas petition. See Pl.
Opp. & Reply at 21 n.5. While there may be incidental public-interest benefits to be gained, they
are minimal in comparison to the unavoidably obvious personal purpose for which the records
are sought. As the D.C. Circuit has generally held, a “focus on the ways in which the requested
records allegedly will undermine [a] conviction and term of incarceration greatly undercuts the
supposed benefit that will accrue to the public if the records are released.” Marino, 993 F. Supp.
2d at 20 n.5 (emphasis in original); see Ortloff v. Dep’t of Justice & FBI, No. 02-5170, 2002 WL
31777630, at *1 (D.C. Cir. Dec. 11, 2002) (“Insofar as appellant seeks information to facilitate a
challenge to his conviction, the court considers disclosure less likely to contribute to public
understanding.”) (citations omitted); Monroe-Bey v. FBI, 890 F. Supp. 2d 92, 98 (D.D.C. 2012)
(“Mr. Monroe-Bey’s need for the records to prove his innocence – a theme throughout his fee
waiver request – works against a fee waiver . . . .”); see also Pub. Employees for Envtl.

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Responsibility v. United States Dep’t of Commerce, 968 F. Supp. 2d 88, 101-04 (D.D.C. 2013)
(Plaintiff failed to satisfy second and fourth “public understanding” factors because
“[i]nformation related to one individual . . . is not likely to clear [the] bar [of increasing public
knowledge of the functions of government].”). The Court, therefore, finds that Bartko has not
established his entitlement to a “public interest” fee waiver.
3. Bad Faith
Plaintiff last argues that EOUSA is not entitled to summary judgment because it has acted
here in bad faith. While it is true that summary judgment for an agency may be inappropriate in
such an instance, see Hamilton Sec. Grp. Inc. v. Dep’t of Hous. & Urban Dev., 106 F. Supp. 2d
23, 33 (D.D.C. 2000), aff’d sub nom. Hamilton Sec. Grp., Inc. v. Dep’t of Hous. & Urban Dev.,
Office of Inspector Gen., No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001), it is less
clear that an agency’s bad faith excuses a requester from paying fees. The Court will
nonetheless consider Bartko’s arguments.
In determining what constitutes bad faith, “[c]ourts routinely find that delays in
responding to FOIA requests are not, in and of themselves, indicative of agency bad faith.”
Skurow v. United States Dep’t of Homeland Sec., 892 F. Supp. 2d 319, 326 (D.D.C. 2012) (oneyear delay insufficient for finding agency bad faith; claims of bad faith were purely speculative);
see also Boyd v. Criminal Div. of United States Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir.
2007) (seven-month delay in responding to initial FOIA request did not, without additional
concrete allegations, constitute evidence of bad faith); Competitive Enter. Inst. v. Nat’l
Aeronautics & Space Admin., 989 F. Supp. 2d 74, 88-89 (D.D.C. 2013) (two-year delay caused
by inadequate staffing not caused by bad faith); Thomas v. United States Dep’t of Justice, 531 F.
Supp. 2d 102, 109 (D.D.C. 2008) (three-year delay in agency’s response to FOIA request not

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“purposeful” and absent additional evidence did not indicate bad faith); Goland v. CIA, 607 F.2d
339, 355 (D.C. Cir. 1978) (“[I]n view of the well-publicized problems created by the statute’s
10- and 20-day time limits for processing FOIA requests and appeals, the CIA’s delay alone
cannot be said to indicate an absence of good faith.”) (footnote omitted); Fischer v. United States
Dep’t of Justice, 723 F. Supp. 2d 104, 108 (D.D.C. 2010) (rejecting argument that failure to
produce documents until after litigation commenced evinces bad faith). Further, delays caused
by “simple” administrative mistakes – such as misplacement of documents during transfer
between agencies – do not constitute bad faith. See Budik v. Dep’t of the Army, 742 F. Supp. 2d
20, 33 (D.D.C. 2010).
Plaintiff’s contentious and lengthy Reply alleges numerous instances of bad faith on
EOUSA’s part. As will be readily apparent, Bartko generally views EOUSA’s conduct as “only
explainable by an intent” to frustrate him and to avoid releasing the requested documents in a
timely manner. See Pl. Opp. & Reply at 11. The Court fundamentally disagrees. EOUSA has
thus far made reasonable efforts to comply with FOIA and to respond to Plaintiff’s farrago of
incendiary motions and correspondence. Each of Bartko’s allegations is addressed in turn.
First, Plaintiff contends that EOUSA’s February 9, 2015, letter is misleading insofar as it
(1) does not explicitly refer to the 930 pages that are the subject of the above-referenced
Motions, (2) does not state upon which FOIA exemptions EOUSA relied as a basis for redaction,
and (3) does not identify whether it is issued in response to the referral from OPR or to a separate
FOIA request served directly on EOUSA as the FOIA agent for the United States Attorney’s
Office for the Eastern District of North Carolina. See id. at 1-4. To the extent Bartko complains
of confusion in interpreting this letter, he himself bears substantial responsibility as he has
inundated this Court and the responding Defendants with a truckload of lengthy motions,

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correspondence, and overlapping FOIA requests, all of which are difficult to keep straight. In
any event, he provides no legal support to demonstrate that any of this constitutes bad faith.
Second, Plaintiff claims that EOUSA released the initial 101 documents on February 9,
2015, only after his Motion for Partial Summary Judgment was filed on January 12. See id. at 57. This is insufficient to manifest bad faith. See Fischer, 723 F. Supp. 2d at 108 (rejecting
argument that failure to produce documents until after litigation commenced evinces bad faith).
Third, Bartko asserts that the agency turned over publicly available filings generated by
the parties in this FOIA suit, despite his request that such filings not be produced. See Pl. Opp.
& Reply at 8. This is unpersuasive. Defendant has stated that it will make “every effort . . . to
the extent [it is] feasible” to exclude publicly available documents in the remaining document
production and remit any resulting overage of fees to Plaintiff. See Luczynski Decl. at 3. That it
has not fully succeeded is not bad faith.
Fourth, Plaintiff alleges EOUSA acted in bad faith by failing to waive its processing fees
and by offering an installment-payment plan that was excessive in light of his limited resources
as an indigent inmate. See Pl. Opp. & Reply at 11. The Court rejects this argument. Bartko
characterizes fees as mere “technicalities,” see id., but they are, in fact, required. Pursuant to
DOJ regulations, an agency may require a requester “to make an advance payment of an amount
up to the amount of the entire anticipated fee before beginning to process the request . . . and it
‘shall not’ consider the request ‘received’ or perform ‘further work’ on it ‘until the required
payment is received.’” Bordas v. Dep’t of Justice, 583 F. Supp. 2d 128, 132 (D.D.C. 2008)
(citing 28 C.F.R. § 16.11(i)(2), (4)); see also Farrugia v. Executive Office for United States
Attorneys, 366 F. Supp. 2d 56, 57 (D.D.C. 2005) (“Where an agency already has processed a
request, it is clear ‘that the agency may require payment before sending the requested records.’”)

15

(internal citation omitted). Requiring Plaintiff to pay the assessed fees (absent a waiver) –
particularly in installments – does not amount to bad faith.
Finally, Bartko maintains that EOUSA used bureaucratic technicalities and other stalling
methods to intentionally drag its feet in responding to his request. See Pl. Opp. & Reply at 1112. While this last argument carries more weight than any of his previous protestations, it
similarly falls short. As noted above, while Defendant is not faultless for the delay in processing
and releasing the initial batch of documents, mere delay in responding to a FOIA request is
routinely found to be insufficient to support a finding of bad faith, even in cases where the
agency delay is considerably longer than EOUSA’s present delay of several months. See
Skurow, 892 F. Supp. 2d at 326 (one year); Boyd, 475 F.3d at 391 (seven months); Competitive
Enter. Inst., 989 F. Supp. 2d at 88-89 (two years); Thomas, 531 F. Supp. 2d at 109 (three years).
This is particularly the case where, as here, at least some of the delay was caused by the “simple
administrative error” of the documents being lost or misplaced in the referral process. See
Budik, 742 F. Supp. 2d at 33 n.17 (ten-month delay caused by misdirected documents in referral
process did not indicate bad faith).
Plaintiff’s allegations of bad faith, whether viewed singly or in concert, are misguided.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order denying
Plaintiff’s Motion for Partial Summary Judgment, granting Defendant’s Motion for Partial
Summary Judgment with respect to redactions made in the initially released documents, and
granting Defendant’s Motion to Dismiss the remaining claims for failure to pay required fees.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: May 6, 2015
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