BARTKO v. UNITED STATES DEPARTMENT OF JUSTICE

Filing 87

MEMORANDUM OPINION re 86 Order on Cross Motions for Summary Judgment. Signed by Judge James E. Boasberg on 7/12/2019. (lcjeb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GREGORY BARTKO,
Plaintiff,
v.

Civil Action No. 17-781 (JEB)

UNITED STATES DEPARTMENT OF
JUSTICE, EXECUTIVE OFFICE FOR
UNITED STATES ATTORNEYS, et al.,
Defendants.
MEMORANDUM OPINION
The saga of pro se Plaintiff Gregory Bartko’s Freedom of Information Act requests
continues. This time around, Plaintiff and Defendant Executive Office for United States
Attorneys are deadlocked on the issue of a fee waiver regarding his FOIA Request No. 2014-486.
Bartko now moves for partial summary judgment (mislabeled as a cross-motion), asserting that
he deserves a public-interest fee waiver for the same reasons the D.C. Circuit granted him one
for a previous request in Bartko v. U.S. Department of Justice, 898 F.3d 51, 75 (D.C. Cir. 2018).
Defendant responds with a Cross-Motion also seeking partial summary judgment, contending
that Bartko has neither properly sought a waiver nor deserves one. As the Court disagrees, it will
grant Plaintiff’s Motion.
I.

Background
This Opinion will limit its recitation of this case’s extensive procedural history to the

facts relevant to fees. On September 19, 2013, Plaintiff, who is currently incarcerated for fraud,
filed a voluminous FOIA request, see ECF No. 1 (Compl.), ¶ 6, one offshoot of which was
Request No. 2014-486. See ECF No. 58 (Pl. MSJ), Exh. D (Dec. 12, 2013, Def. Letter). On
1

April 1, 2014, EOUSA informed him that it would provide the documents responsive to this
request ⁠— concerning “all information about [Bartko] in criminal case files” ⁠— for an advance
payment of $2,618. See Pl. MSJ, Exh. D (Dec. 12, 2013, Def. Letter); Pl. MSJ, Exh. E (Apr. 1,
2014, Def. Letter). It also denied his request for a waiver on the ground that it was predicated
solely upon Plaintiff’s in forma pauperis status. See Pl. MSJ, Exh. F (May 14, 2014, Def.
Letter). This denial was understandable because indigent status alone does not entitle an
individual to a fee waiver. See Ely v. U.S. Postal Service, 753 F.2d 163, 165 (D.C. Cir. 1985).
Such a fee waiver is warranted, conversely, if the information sought is in the public interest.
See 5 U.S.C. § 552(a)(4)(A)(iii). Bartko’s subsequent appeals switched course to expressly raise
this basis to avoid fees, see Pl. MSJ, Exh. I (Apr. 27, 2014, Pl. Appeal Letter) at 2, 5, and he
repeatedly mentioned it through his succeeding communications with EOUSA and the Office of
Information Policy. See ECF No. 12 (Def. Answer), Exh. L (Nov. 11, 2014, Pl. Appeal Letter) at
2, 5; Answer, Exh. O (Feb. 20, 2015, Pl. Letter) at 2. After several years of back and forth,
Plaintiff filed this suit on April 27, 2017.
On September 25, 2018, in the course of resolving multiple issues between the parties,
the Court addressed Request No. 2014-486. It concluded that Bartko was entitled to judicial
review of his fee-waiver request because he had satisfied FOIA’s exhaustion requirement. See
Bartko v. U.S. Dep’t of Justice, 2018 WL 4608239, at *12–14 (D.D.C. Sept. 25, 2018). The only
issue the Court left open was whether a waiver was warranted on the merits, and it asked for
briefing on that question. Id. at *14. Following that determination, EOUSA agreed to reevaluate the propriety of a fee waiver. See ECF No. 53 (Oct. 19, 2018, Status Report) at 2. On
November 2, 2018, it denied the waiver, asserting that Bartko had not properly sought it through
the administrative process — i.e., his request was based solely upon his in forma pauperis status

2

rather than public interest — and that the information would not contribute to a significant public
understanding as required by 5 U.S.C. § 552(a)(4)(A)(iii). See Pl. MSJ, Exh. A (Nov. 2, 2018,
Def. Letter). The parties have now briefed the correctness of such a determination.
II.

Legal Standard
FOIA cases typically and appropriately are decided on motions for summary judgment.

See Summers v. DOJ, 140 F.3d 1077, 1079–81 (D.C. Cir. 1998). 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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the
litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is
“genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving
party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb,
433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of materials in the record” or “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The
moving party bears the burden of demonstrating the absence of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
III.

Analysis
Plaintiff asserts that the documents are in the public interest and that 5 U.S.C.

§ 552(a)(4)(A)(iii) thus mandates a fee waiver. Defendant rejoins that he never made a proper
request at the administrative level. In the alternative, EOUSA asserts that disclosure of the

3

records is not in the public interest because they will not contribute to a significant public
understanding of government operations. The Court will address these positions in turn.
A. Exhaustion & Administrative Record
Despite an earlier holding to the contrary by this Court, arguments concerning
administrative exhaustion still appear to linger in Defendant’s briefs. See ECF No. 66 (Def.
MSJ) at 8–9. Indeed, EOUSA believes that “[t]he fatal defect in Plaintiff’s argument is that he
does not cite any evidence that he expressly sought a fee waiver outside of litigation” ⁠— i.e.,
through the administrative process. Id. at 9 (internal quotation marks omitted). To the extent
that this is an exhaustion argument, the Court laid this dispute to rest when it concluded that
“FOIA’s exhaustion requirement” did not bar Plaintiff’s suit and requested further briefing only
on the merits of the fee waiver. See Bartko, 2018 WL 4608239, at *12. Defendant
acknowledged as much when it reported to the Court on its reopening of the fee-waiver request.
See Oct. 19, 2018, Status Report at 2. If conversely, Defendant is contending that the
administrative record does not support Plaintiff, it is mistaken there, too. As explained in the
Background, supra, Bartko has cited the public interest in his efforts outside of litigation to
obtain a fee waiver. The Court will thus proceed to the merits.
B. Fee Waiver
The only real question remaining in this dispute, consequently, is whether disclosure of
these documents is in the public interest or not. As previously mentioned, administrative
agencies can charge requesters reasonable fees for processing FOIA requests. See 5 U.S.C.
§ 552(a)(4)(A)(i). Such fees may be waived or reduced under 5 U.S.C. § 552(a)(4)(A)(iii) if a
requester shows that “disclosure of the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or activities of the government

4

and is not primarily in the commercial interest of the requester.” The burden is on the requester
to show that her fee-waiver request satisfies the statutory requirements and that she made her
request “with reasonable specificity and based on more than conclusory allegations.” Judicial
Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (internal citations and quotations
marks omitted). These fees, however, should “not be used as an obstacle to disclosure of
requested information.” Long v. Dep’t of Homeland Sec., 113 F. Supp. 3d 100, 103 (D.D.C.
2015) (quoting Eudey v. CIA, 478 F. Supp. 1175, 1177 (D.D.C. 1979)). Fee waiver requests,
accordingly are liberally construed in favor of the requester. See Nat’l Sec. Counselors v. U.S.
Dep’t of Justice, 848 F.3d 467, 473 (D.C. Cir. 2017); Citizens for Responsibility & Ethics in
Washington v. U.S. Dep’t of Educ., 593 F. Supp. 2d 261, 268 (D.D.C. 2009).
EOUSA acknowledges that disclosure is not sought for Bartko’s commercial interest.
See ECF No. 66–3 (Def. Response to Pl. Statement of Facts) at 2. Instead, it disagrees that this
information will contribute to a significant public understanding. See Def. MSJ at 10. In order
for a request to meet the “public understanding” requirement, it must fulfill four criteria: “(1) the
request must concern the operations or activities of government; (2) the disclosure must be
‘likely to contribute’ to an understanding of government operations or activities; (3) disclosure
must contribute to an understanding of the subject by the public at large; and (4) disclosure must
be likely to contribute significantly to such public understanding.” Judicial Watch, Inc. v. U.S.
Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004) (citing 28 C.F.R. § 16.11(k)(2), now
codified in 28 C.F.R. § 16.10(k)(2)). The parties only dispute the fourth prong, as EOUSA
essentially concedes the other three.
This Court does not write on a blank slate here; indeed, the D.C. Circuit has recently
weighed in on this very issue in another of Bartko’s cases. There — in addressing a public

5

interest fee waiver for Request No. 2014-3847 — that court sided with Bartko. See Bartko, 898
F.3d at 75. Those proceedings concerned “a FOIA request to [the Office of Professional
Responsibility], seeking records relating to [Bartko] and his criminal case.” Bartko v. U.S. Dep’t
of Justice, 102 F. Supp. 3d 342, 345 (D.D.C. 2015), rev’d in part, Bartko v. U.S. Dep’t of Justice,
898 F.3d 51, 76 (D.C. Cir. 2018). The D.C. Circuit was persuaded that disclosure of those
documents fulfilled the waiver requirements because it was “likely to contribute significantly to
the public’s understanding of how federal prosecutors endeavor to secure convictions by
sidestepping important constitutional protections for the accused and how the [criminal justice]
system functions in reality compared to how the system was intended to function.” Bartko, 898
F.3d at 75 (citation omitted). Disclosure was particularly crucial because the issues in Plaintiff’s
case took place in a district that is fraught with discovery abuses. Id. at 76; see also U.S. v.
Bartko, 728 F.3d 327, 343 (4th Cir. 2013). The court also found that Bartko was “uniquely
positioned to convey this information because his prosecution had already garnered significant
media interest.” Bartko, 898 F.3d at 75 (citation omitted).
Defendant nonetheless maintains that this holding does not apply here because the
requests are different. EOUSA insists that documents sought in Request No. 2014-3847 would
reveal “how the government handled the misconduct,” whereas those sought in Request No.
2014-486 only pertain to Plaintiff’s criminal case. See Def. MSJ at 11 (emphasis added). This
distinction is unpersuasive. Both concern the same general subject matter: how the government
prosecuted Bartko. See Bartko, 898 F.3d at 75; Apr. 1, 2014, Def. Ltr. Regardless of whether
Plaintiff directed his request to OPR or EOUSA, the information sought was sufficiently similar.
In Defendant’s own words the prior request — No. 2014-3847 — was for “records concerning
[Bartko’s] criminal case and appeal.” No. 13-1135, ECF No. 156 (Def. MTD/MSJ) at 10. The

6

current request — No. 2014-486 — is likewise for “all information about [Bartko] in criminal
case files.” Apr. 1, 2014, Def. Ltr. The requests were similar enough in their facts that EOUSA
called them “duplicate requests.” See Answer, Exh. K (Oct. 15, 2014, Def. Letter) at 1. For both
requests, Plaintiff explains that the public interest is to educate the public about a larger pattern
of prosecutorial misconduct in the Eastern District of North Carolina. See Bartko, 102 F. Supp.
3d at 351; Apr. 27, 2014, Pl. App. Ltr. at 2. There is no convincing reason why this argument
would apply to only one of the requests. The Court thus finds no cause to depart from the D.C.
Circuit’s ruling.
IV.

Conclusion
For these reasons, the Court will grant Plaintiff’s Motion for Partial Summary Judgment.

A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: July 12, 2019

7