United States Court of Appeals, District of Columbia Circuit
May 7, 2018
from the United States District Court for the District of
Columbia (No. 1:13-cv-01135)
M. Brill, appointed by the court, argued the cause as amicus
curiae in support of appellant. With her on the briefs were
Brian M. Matsui and Deanne E. Maynard.
Gregory Bartko, pro se, filed the briefs for appellant.
M. Kolsky, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Alessio Evangelista,
Principal Assistant U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.
Before: Griffith, Millett, and Pillard, Circuit Judges.
MILLETT, CIRCUIT JUDGE
it takes, this behavior must stop." So ordered the
United States Court of Appeals for the Fourth Circuit in
United States v. Bartko, when it was confronted with
"repeat offense[s]" of prosecutorial misbehavior
and discovery improprieties by the United States
Attorney's Office for the Eastern District of North
Carolina, including by Clay Wheeler, a high-level prosecutor
in Gregory Bartko's case. 728 F.3d 327, 343, 341 (4th
Cir. 2013). Concluding that the frequent recurrence of
prosecutorial missteps in that office "raise[d]
questions regarding whether the errors are fairly
characterized as unintentional," the Fourth Circuit took
the extraordinary step of referring the matter to the United
States Department of Justice's Office of Professional
Responsibility ("OPR") for further investigation of
the allegations of professional misconduct. Id. at
Bartko was convicted in a case beset by prosecutorial
misfeasance, he filed multiple Freedom of Information Act
("FOIA") requests with OPR and other relevant
agencies seeking to learn the results of investigations into
Wheeler. See 5 U.S.C. § 552 et seq.
OPR categorically refused to acknowledge the existence of,
let alone disclose, any potentially relevant documents
outside of Bartko's individual case. And even with
respect to Wheeler's conduct in Bartko's case, OPR
held back substantial amounts of material, asserting a
sweeping breadth for its claimed exemptions. Because circuit
precedent foreclosed OPR's approach, and because OPR
failed to justify multiple withholdings, we reverse the
district court's judgment in favor of OPR with respect to
its invocations of Exemption 7(C), and the district
court's decision to deny a fee waiver to Bartko. We also
remand with instructions for the district court to reconsider
its decision with respect to the FBI's withholding of
records pursuant to Exemption 3 in light of recent circuit
precedent. On all other matters, we affirm the district
court's entry of summary judgment in favor of the
events giving rise to this appeal stem from a criminal
prosecution in a district not too far from here. Gregory
Bartko was an Atlanta-based securities lawyer, investment
banker, and broker. In the early 2000s, he created and
managed two private equity funds, the Caledonian Fund and the
Capstone Fund. Over the next half-decade, Bartko fleeced
investors out of more than a million dollars under the false
pretense that their investments were fully insured with a
guaranteed return. Bartko's luck ran out when the
Securities and Exchange Commission caught wind of the scam
and began to examine the Caledonian and Capstone Funds. The
ensuing investigation resulted in a criminal prosecution by
the U.S. Attorney's Office for the Eastern District of
North Carolina. The then-Chief of the Economic Crimes
Section, Assistant U.S. Attorney Clay Wheeler, prosecuted
Bartko for (i) conspiracy to commit mail fraud and to engage
in unlawful monetary transactions in violation of 18 U.S.C.
§ 371; (ii) mail fraud in violation of 18 U.S.C.
§§ 1341 and 1342; and (iii) the sale of
unregistered securities in violation of 15 U.S.C.
§§ 77e, 77x, and 18 U.S.C. § 2. After a
thirteen-day trial, a jury convicted Bartko on all counts. In
2010, Bartko was sentenced to 272 months of imprisonment.
See Bartko, 728 F.3d at 331, 334; see also
Gregory Bartko v. SEC, 845 F.3d 1217, 1221 (D.C. Cir.
2017) (describing Bartko's criminal activities).
after the jury announced its verdict, Bartko discovered that
Wheeler had made multiple, serious prosecutorial missteps in
the case. Specifically, Wheeler failed to disclose
significant impeachment evidence-deals that the government
had struck with witnesses in advance of their testimony.
See Giglio v. United States, 405 U.S. 150, 155
(1972); see also Brady v. Maryland, 373 U.S. 83, 87
(1963). In addition, the prosecution allowed a government
witness (Bartko's co-conspirator) to testify falsely that
he had not received any inducement from the government in
exchange for his testimony, even though the government
actually had made promises to him. See Napue v.
Illinois, 360 U.S. 264, 270 (1959); see generally
Bartko, 728 F.3d at 337-341.
light of those developments, Bartko moved for a new trial
claiming violations of his due process rights under the Fifth
Amendment. The district court denied Bartko's motion. The
Fourth Circuit affirmed on the narrow ground that the
undisclosed evidence and witness testimony was cumulative of
the overwhelming untainted evidence, and so the governmental
missteps would not have affected the final outcome of the
trial. See Bartko, 728 F.3d at 331-332, 337.
court of appeals did not end its decision there. Pointing to
a slew of disturbing recent cases, the court specifically
noted the "frequency of [discovery] 'flubs'
committed" by the U.S. Attorney's Office for the
Eastern District of North Carolina, which "raise[d]
questions regarding whether the errors [we]re fairly
characterized as unintentional." Bartko, 728
F.3d at 341. With respect to Bartko's case in particular,
the court expressed deep skepticism about counsel's
"farfetched assertion" when asked about the
misbehavior. Id. at 342.
court also worried that "[r]emedies elude"
individual defendants because egregious violations
"ultimately prove immaterial to the verdict."
Bartko, 728 F.3d at 342. The frequent
affirmance of criminal convictions on that basis, the court
explained, causes the government to believe that it can
withhold with impunity material that it is constitutionally
required to disclose. Just because "such practices [may
be] 'harmless' as to a specific defendant's
verdict," the court continued, "they are anything
but harmless" for "litigants in the Eastern
District of North Carolina and our justice system at
that the U.S. Attorney's Office "is uninterested in
placating concerns" and "seems unfazed by the fact
that discovery abuses violate constitutional guarantees and
misrepresentations erode faith that justice is achievable[,
]" the court declared that "[s]omething must be
done." Bartko, 728 F.3d at 342.
"To underscore [its] seriousness about this
matter," the Fourth Circuit ordered the Clerk of Court
to "serve a copy of [its] opinion upon the Attorney
General of the United States and the Office of Professional
Responsibility[, ]" which handles allegations of
misbehavior by Justice Department attorneys. Id.
with that sharp censure, the U.S. Attorney's Office
responded by petitioning the court for rehearing,
specifically requesting that the court "reconsider its
suggestion that discovery errors in our office are
intentional [and] that [Assistant U.S. Attorney Wheeler]
intentionally ignored false testimony." Gov't's
Pet. for Reh'g 2, Docket No. 12-4298, ECF No. 105. In its
filing, the U.S. Attorney's Office "admit[ted]"
to "some discovery failures on [its] part,"
id. at 3, and informed the court that it was
instituting changes to its "[d]iscovery [p]ractices in
[r]esponse to the [c]ourt's [c]oncerns,"
id. at 4. Specifically, the U.S. Attorney's
Office announced that, effective August 1, 2013, Assistant
U.S. Attorneys must:
(1) personally review the files of each investigative agency
involved with the investigation (rather than relying upon the
agency's response to [the Office's] requests for
discoverable material), and
(2) meet with their supervisor to discuss this review and all
potential discovery issues in the case.
Id. The U.S. Attorney's Office also
"created new systems, protocols, and rules to comply
with [its] reformulated discovery practices."
Id. at 5. The Fourth Circuit denied the U.S.
Attorney's Office's rehearing petition.
FOIA was enacted to ensure public access to a wide range of
government reports and information." Rural Housing
Alliance v. United States Dep't of Agriculture, 498
F.2d 73, 76 (D.C. Cir. 1974). It "was designed to pierce
the veil of administrative secrecy and to open agency action
to the light of public scrutiny." Citizens for
Responsibility & Ethics in Washington ("CREW")
v. Department of Justice, 746 F.3d 1082, 1088 (D.C. Cir.
2014) (quotation marks omitted).
transparency and government accountability are at the heart
of FOIA's mandate, Congress exempted certain categories
of records from disclosure to protect important governmental
and private interests in confidentiality. As relevant here,
FOIA allows the government to withhold from disclosure
information "compiled for law enforcement purposes * * *
[that] could reasonably be expected to constitute an
unwarranted invasion of personal privacy," 5 U.S.C.
§ 552(b)(7)(C), or that is "specifically exempted
from disclosure by [another] statute[, ]" id.
§ 552(b)(3), such as material presented to a grand jury,
Fed. R. Crim. P. 6(e). FOIA Exemption 6 separately shields
"personnel and medical files and similar files"
when their disclosure "would constitute a clearly
unwarranted invasion of personal privacy." 5 U.S.C.
§ 552(b)(6). The agency bears the burden of proving that
an exemption applies. CREW, 746 F.3d at 1088.
when an exemption applies, the agency is obligated to
disclose "[a]ny reasonably segregable portion of a
record" after removing the exempt material and must note
the "amount of information deleted, and the exemption
under which the deletion is made." 5 U.S.C. §
agency is permitted to charge a requester
"reasonable" document search and duplication fees,
5 U.S.C. § 552(a)(4)(A)(ii)(III), but such fees will be
waived or reduced if "disclosure of the information is
in the public interest," id. §
552(a)(4)(A)(iii). The public-interest fee waiver requires
that the released information be "likely to contribute
significantly to public understanding" of government
activities and not be "primarily in the commercial
interest of the requester." Id.
2012 and 2013, Bartko submitted FOIA requests to OPR, the
U.S. Postal Inspection Service, the Internal Revenue Service,
the Federal Bureau of Investigation, the Department of
Justice's Executive Office for U.S. Attorneys, the
Department of Treasury, and the Securities and Exchange
Commission. His requests sought government documents
concerning both his case and any other records OPR might
possess regarding allegations of prosecutorial misconduct by
relevance here, in January 2013, Bartko submitted a FOIA
request to OPR seeking:
1. Any and all records created by and/or received by [OPR] in
regard to [AUSA] Clay C. Wheeler, * * * which relate to or
concern violations or alleged violations by AUSA Wheeler of
Section 9.500 et seq. of the United States Attorneys'
Manual adopted by the Department of Justice; or the
"Ogden Memorandum" * * * or any ethical duties
imposed upon AUSA Wheeler in his capacity as a government
prosecutor as set forth in the North Carolina Code of
Professional Conduct * * *.
2. Any and all records in regards to complaints or
allegations made against AUSA Wheeler with regards to
prosecutorial misconduct before any grand jury, during any
criminal trial or investigation prior to trial, which
involved the withholding and concealing of exculpatory
evidence and/or the presentation of false or misleading
evidence during trial.
3. Any and all records maintained by OPR concerning AUSA
Wheeler's supervision as an employee of the Department of
Justice, which reflect allegations of attorney misconduct
involving violations of any standard imposed by law,
applicable rules, professional conduct or Department of
response, OPR agreed only to release documents regarding a
matter for which Bartko was the complainant (seven documents
in total). As to everything else, OPR categorically refused
to even confirm or deny the existence of relevant records-a
type of answer to a FOIA request known as a
"Glomar" response. See Phillippi v.
CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976).
with OPR's blanket refusal and the other agencies'
responses, Bartko filed suit in the U.S. District Court for
the District of Columbia in July 2013. The district court
required the agency to search for records regarding
Wheeler's missteps in Bartko's case but otherwise
accepted OPR's categorical refusal to respond. See
Bartko v. Department of Justice, 62 F.Supp.3d 134,
143-144 (D.D.C. 2014). After conducting a narrowly tailored
search, OPR invoked a host of exemptions to partially or
fully withhold documents from Bartko. The district court
approved those withholdings. See Bartko v. Department of
Justice, 128 F.Supp.3d 62, 72-73 (D.D.C. 2015).
years of back-and-forth between the parties and the court
that resulted in a substantial amount of additional material
being released to Bartko by OPR and the other defendant
agencies, the district court granted summary judgment in
favor of the defendants. Bartko appealed pro se, and
this court appointed an amicus curiae to present
arguments on his behalf.
Court reviews a district court's grant of summary
judgment de novo. Clemente v. FBI, 867 F.3d 111,
116, 119 (D.C. Cir. 2017). Fee waiver denials are likewise
reviewed de novo. Judicial Watch, Inc. v.
Rossotti, 326 F.3d 1309, 1311 (D.C. Cir. 2003).
review of the record before us, we reverse the district
court's grant of summary judgment in favor of OPR on its
application of Exemption 7(C) and, in light of intervening
circuit precedent, we remand the issue of whether the
FBI's application of Exemption 3 was properly justified.
We also reverse the district court's denial of a fee
waiver because Bartko has successfully shown that the
disclosure of the requested material would be in the