Bartko v. U.S. Dep't of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 7, 2018 Decided August 3, 2018

No. 16-5333

GREGORY BARTKO,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01135)

Sophia 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.

Joshua 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.

Opinion for the Court filed by MILLETT, Circuit Judge.

2

MILLETT, Circuit Judge: “Whatever 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 342–343.

After 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

3

matters, we affirm the district court’s entry of summary

judgment in favor of the defendant agencies.

I

A

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).

Months after the jury announced its verdict, Bartko

discovered that Wheeler had made multiple, serious

4

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.

In 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.

But the 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.

The 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

5

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

large[.]” Id.

Concluding 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.

Faced 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:

6

(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.

B

“The 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).

While 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

7

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.

Even 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. § 552(b).

An 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.

C

Between 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

8

possess regarding allegations of prosecutorial misconduct by

Wheeler.

Of 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

9

attorney misconduct involving violations

of any standard imposed by law,

applicable rules, professional conduct or

Department of Justice policy.

J.A. 209–210.

In 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). 1

Dissatisfied 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

1

The Glomar response takes its name from this court’s decision

upholding the CIA’s refusal to confirm or deny the existence of

records about “the Hughes Glomar Explorer, a ship used in a

classified [CIA] project to raise a sunken Soviet submarine from the

floor of the Pacific Ocean to recover the missiles, codes, and

communications equipment onboard for analysis by United States

military and intelligence experts.” Roth v. Department of Justice,

642 F.3d 1161, 1171 (D.C. Cir. 2011) (internal citation and quotation

marks omitted).

10

Bartko v. Department of Justice, 128 F. Supp. 3d 62, 72–73

(D.D.C. 2015).

After 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. 2

II

This 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).

Upon 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 public’s interest. As to

Bartko’s other challenges to the agencies’ withholdings and the

scope of their FOIA searches, we affirm.

2

The court thanks court-appointed amicus curiae, Sophia M.

Brill, Deanne E. Maynard, and Brian R. Matsui of Morrison &

Foerster LLP for their assistance in presenting this case.

11

A

Bartko’s FOIA request to OPR sought any records

pertaining to alleged misconduct by Wheeler, but the district

court ruled that OPR need only disclose documents pertaining

to Bartko’s own case. As to the broader aspect of Bartko’s

request, the district court sustained OPR’s Glomar response—

OPR’s blanket refusal to neither confirm nor deny the existence

of other relevant records on the ground that doing so would

reveal law-enforcement information protected from disclosure

under Exemption 7(C). That was error.

A Glomar response to a FOIA request is permitted in that

rare situation when either confirming or denying the very

existence of records responsive to a request would “cause harm

cognizable under an FOIA exception.” Roth v. Department of

Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (internal citation

and quotation marks omitted); see also American Civil

Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013)

(Glomar responses only permitted “in limited circumstances”)

(citation omitted). The question in this case is whether

disclosing even “the existence or nonexistence of the requested

records” is itself information protected by Exemption 7(C).

Roth, 642 F.3d at 1178 (internal alteration omitted).

Because Exemption 7(C) shields from disclosure “records

or 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), to

invoke Glomar, OPR had to make a threshold showing that the

FOIA request seeks records “compiled for law enforcement

purposes.” Jefferson v. Department of Justice, 284 F.3d 172,

176 (D.C. Cir. 2002). OPR also bore the burden of making

an across-the-board showing that the privacy interest the

government asserts categorically outweighs any public interest

12

in disclosure. See Roth, 642 F.3d at 1174. OPR fell short on

both fronts.

1

Documents pertaining to any OPR investigation of alleged

ethics violations by Wheeler do not, on this record, qualify as

protected “law enforcement records,” 5 U.S.C. § 552(b)(7).

The law-enforcement-purpose inquiry focuses “on how and

under what circumstances the requested files were compiled,”

and “whether the files sought relate to anything that can fairly

be characterized as an enforcement proceeding[.]” Jefferson,

284 F.3d at 177 (internal citations and quotation marks

omitted). The purpose of the investigation is “the critical

factor.” Rural Housing Alliance, 498 F.2d at 82.

To qualify as law-enforcement records, the documents

must arise out of “investigations which focus directly on

specifically alleged illegal acts * * * which could, if proved,

result in civil or criminal sanctions.” Rural Housing Alliance,

498 F.2d at 81. Records documenting only “government

surveillance or oversight of the performance of duties of its

employees” do not qualify. Id.; see also Stern v. FBI, 737

F.2d 84, 89 (D.C. Cir. 1984) (Exemption 7 does not shield

internal agency investigations “in which an agency, acting as

the employer, simply supervises its own employees.”). Nor is

the mere possibility of a legal violation sufficient, because

“[a]ny internal auditing or monitoring conceivably could result

in disciplinary action, in dismissal, or indeed in criminal

charges against the employees.” Rural Housing Alliance, 498

F.2d at 81.

Instead, an agency must establish “a rational nexus

between the investigation and one of the agency’s law

enforcement duties,” and “a connection between an individual

13

or incident and a * * * violation of federal law.” Center for

Nat’l Sec. Studies v. Department of Justice, 331 F.3d 918, 926

(D.C. Cir. 2003) (internal citation and quotation marks

omitted). Courts generally afford some deference to agencies

“specializing in law enforcement” that claim their records are

eligible for Exemption 7(C) protection. Id. (internal

quotation marks and alteration omitted).

Because OPR does not “specialize[] in law enforcement,”

its attempt to shield its records under Exemption 7(C) merits

no deference. Campbell v. Department of Justice, 164 F.3d

20, 32 (D.C. Cir. 1998). We have previously “decline[d] to

hold as a matter of law that all OPR records are necessarily law

enforcement records.” Jefferson, 284 F.3d at 178. That is

because one of OPR’s primary responsibilities is to “secure

reports, as distinct from compiling them, that arise as a result

of internal agency monitoring and review allegations of non-

law violations by Department attorneys for internal

disciplinary purposes.” Id. (emphases added). So OPR

bears the burden of showing on a case-by-case basis that any

requested records were actually compiled for law-enforcement,

rather than employment-supervision, purposes. See id.

The government has not come close to showing that all

records (if there are more) involving misconduct allegations

against Wheeler would have been compiled for law

enforcement purposes. Bartko’s FOIA request was broadly

worded to include a wide variety of actual or alleged violations

by Wheeler of the U.S. Attorney’s Manual, the North Carolina

Code of Professional Conduct, and other ethical and legal

obligations. While violations of some of those standards

could conceivably result in civil or criminal sanctions, many of

them would not, and would bear only on internal disciplinary

matters.

14

In addition, Bartko’s request was not even limited to

records resulting from OPR investigations, but included any

records addressing alleged or actual misconduct by Wheeler.

See J.A. 209 (“[R]ecords created by and/or received by [OPR]

* * * which relate to or concern violations or alleged violations

by AUSA Wheeler[.]”) (emphasis added); J.A. 210 (“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[.]”) (emphasis

added).

In defense of its sweeping Glomar response, OPR offered

only a bare-bones declaration that “[t]he records requested by

[Bartko] from OPR consist of complaints or allegations of

misconduct which, if they exist, would have been compiled as

part of OPR’s investigations of Department of Justice attorneys

who are alleged to have committed specific acts of professional

misconduct which, if proved, could result in civil or criminal

penalties.” J.A. 207. That is not even in the ballpark. As

we previously held, OPR “cannot rely on a bare assertion to

justify invocation of an exemption from disclosure,” especially

when, as in Bartko’s case, OPR’s responsibilities include

“receiv[ing] as well as generat[ing] reports that may constitute

investigatory records compiled ‘in connection with

government oversight of the performance of duties by its

employees.’” Jefferson, 284 F.3d at 179 (citation omitted);

see also CREW, 746 F.3d at 1102 (finding that a “near-

verbatim recitation of the statutory standard is inadequate” to

justify the use of an exemption).

Demanding specification and tailored explanations from

OPR has become even more important in the sixteen years

since Jefferson. At the time of Jefferson, OPR maintained an

actual law-enforcement function because it was responsible for

reviewing charges that a Justice Department attorney “may be

15

in violation of law, regulations or orders, or of applicable

standards of conduct[.]” 28 C.F.R. § 0.39(a) (2001). If

OPR’s investigation concluded that the attorney’s conduct

“appear[ed] to involve a violation of law,” OPR would refer the

matter to the agency with jurisdiction to investigate and bring

charges. 28 C.F.R. § 0.39a(d)(1) (2001).

OPR’s mission today (and during the time period covered

by Bartko’s FOIA requests) has narrowed to focus primarily on

internal disciplinary matters. Justice Department regulations

provide that OPR shall “[r]eceive, review, investigate and refer

appropriate allegations of misconduct involving Department

attorneys * * *.” 28 C.F.R. § 0.39a(a)(1) (2006). Absent

from that assignment is any reference to the investigation of

criminal wrongdoing or violations of law. That marks a sharp

shift in OPR’s responsibilities toward the “internal agency

monitoring” end of the spectrum, where Exemption 7(C) has

no purchase.

“[A] Glomar response [i]s inappropriate in the absence of

an evidentiary record produced by OPR to support a finding

that all OPR records regarding [an] AUSA * * * are law

enforcement records.” Jefferson, 284 F.3d at 179. OPR

failed to heed that lesson, offering this court no sufficient basis

on which to make the threshold Glomar determination that all

records (if there are others) concerning allegations of

misconduct by Wheeler would have been compiled for law-

enforcement purposes.

2

OPR also bore the burden of explaining why disclosure of

any records would categorically be “reasonably * * * expected

to constitute an unwarranted invasion of” Wheeler’s personal

privacy, when balanced against the public interest in

16

disclosure. 5 U.S.C. § 552(b)(7)(C). OPR failed that task

too.

Much like its vaporous justification for claiming that the

requested documents constituted law-enforcement records,

OPR just sweepingly asserted that the disclosure of any record

regarding any allegation of misconduct would be an

unwarranted invasion of Wheeler’s privacy. OPR ignores

altogether its obligation to specifically identify the privacy

interest at stake, which can vary based on many factors,

including frequency, nature, and severity of the allegations.

Cf. American Immigration Lawyers Association v. Executive

Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir.

2016) (holding, with respect to Exemption 6, that the privacy

interest of an immigration judge varied depending on whether

the misconduct complaints against her were “substantiated or

unsubstantiated,” “serious,” “trivial,” or “repeated[],” and

whether she had “been subjected to some type of discipline or

ha[d] avoided disciplinary action”).

OPR also made no apparent effort to weigh any privacy

interest against the countervailing public interest in the

disclosure of information concerning allegations of

government attorneys’ misconduct. OPR cannot issue a

blanket proclamation that a loss of privacy would be

“unwarranted” without considering whether there is a public

interest that might well warrant it. 5 U.S.C. § 552(b)(7)(C).

Instead, it must measure the public interest by “the extent to

which disclosure [would] advance[] the basic purpose of the

Freedom of Information Act to open agency action to the light

of public scrutiny,” and “thereby further the citizens’ right to

be informed about what their government is up to.” American

Civil Liberties Union v. Department of Justice, 655 F.3d 1, 6

(D.C. Cir. 2011) (internal citation and quotation marks

omitted). To illustrate, an unsubstantiated allegation that was

17

dismissed as frivolous might implicate a greater privacy

interest or a reduced public interest, while an in-depth

investigation that exposed a pattern of abuses across numerous

cases would trigger a different balancing of interests. See

Roth, 642 F.3d at 1180–1182 (finding that the public’s

“compelling” interest in knowing that a man has not been

wrongly sentenced to death outweighed other suspects’ privacy

interests in not being “link[ed]” to the killings); cf. American

Immigration Lawyers, 830 F.3d at 675 (noting that “interests

on both sides of the * * * balancing test may vary in substantial

measure” depending on the individual); American Civil

Liberties Union, 655 F.3d at 7 (holding that, with respect to

disclosing criminal docket numbers and case names, a

convicted defendant’s privacy interest “is weaker than [that of]

individuals who have been acquitted or whose cases have been

dismissed”).

In short, the Glomar response fails for the additional

reason that OPR was wholly unable to establish that there

would be a single answer to every balancing of interests

involving any Wheeler records. That is a yawning omission

given the substantial public interest embedded in the Fourth

Circuit’s finding of a pattern of discovery abuses in the U.S.

Attorney’s Office for the Eastern District of North Carolina,

and that Office’s admission that a change in practices was

needed and would promptly be made. See Bartko, 728 F.3d

at 341–343; Gov’t’s Pet. for Reh’g 2, Docket No. 12-4298; see

also CREW v. Department of Justice, 854 F.3d 675, 683 (D.C.

Cir. 2017) (“Because the myriad of considerations involved in

the Exemption 7(C) balance defy rigid compartmentalization,

per se rules of nondisclosure based upon the type of document

requested, the type of individual involved; or the type of

activity inquired into, are generally disfavored.”); see also

Section II.B, infra.

18

That same reasoning dooms OPR’s blanket invocation of

Exemption 6, 5 U.S.C. § 552(b)(6), as an alternative ground for

withholding responsive records. Exemption 6 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) (emphasis added).

Because Exemption 6 requires an even stronger demonstration

of a privacy interest than Exemption 7(C), an agency’s inability

to justify withholding the latter often precludes it from

satisfying Exemption 6’s heightened requirements. See

CREW, 854 F.3d at 681 (“When information is claimed to be

exempt from disclosure under both [Exemptions 6 and 7(C)],

courts focus on Exemption 7(C) because it provides broader

privacy protection than Exemption 6 and thus establishes a

lower bar for withholding material.”); see also American Civil

Liberties Union, 655 F.3d at 6 (same); National Archives and

Records Admin v. Favish, 541 U.S. 157, 165–166 (2004)

(comparing the two exemptions). We leave open on remand

whether OPR can make the required individualized showing

needed to invoke Exemption 6 for its non-law-enforcement

records.

B

Bartko next challenges OPR’s decision to withhold

specific records that relate to the investigation of Wheeler’s

handling of Bartko’s own case. J.A. 874. Of the 441 pages

identified by OPR as responsive to Bartko’s request:

• One was released in its entirety;

• Twelve were released in part;

• 102 were withheld entirely;

• Six were referred to the Office of the Inspector General

for processing and direct response; and

19

• 320 were referred to the Executive Office for United

States Attorneys for processing and direct response.

OPR asserted Exemptions 5, 6, and 7(C), 5 U.S.C. § 552(b)(5),

(b)(6) & (b)(7)(C), to withhold the 114 documents in full or in

part. Of those, eight documents that were withheld in full or

in part under Exemptions 7(C) and 6 lie at the heart of Bartko’s

case.

1

In attempting to shelter its withholding of the Bartko

investigation records under Exemption 7(C), OPR once again

dropped the ball. To properly justify its invocation of the

Exemption, OPR’s affidavit had to offer an explanation that is

“full and specific enough to afford the FOIA requester a

meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the

withholding.” Jefferson, 284 F.3d at 176 (internal quotation

marks omitted). For Exemption 7(C), Jefferson required

OPR to make an individualized showing that each record was

actually compiled for law-enforcement purposes rather than

internal attorney supervision. See id. at 179.

OPR’s declaration proved the opposite. OPR explained

that most misconduct referrals are closed immediately “with no

misconduct findings,” or on the written record without a “full

investigation, which includes requesting and reviewing

relevant documents and conducting interviews of witnesses

and the subject attorney.” J.A. 879. Even when a full

investigation leads to the conclusion that an attorney has

engaged in professional misconduct, “those findings could

result in a referral to the attorney’s state bar or disciplinary

action by the Department.” J.A. 879.

20

That description of OPR’s review process reveals just how

attenuated its “law enforcement” function is. For starters,

most matters do not even result in an investigation, making a

finding of law-enforcement-triggering misconduct implausible

in the vast majority of cases. That summary treatment seems

to have been what was accorded to the Fourth Circuit’s referral

in Wheeler’s case because there is no record evidence or

attestations from OPR indicating that they interviewed

witnesses or requested additional documents for review.

In addition, according to OPR’s own explanation, even

when misconduct is found, all that usually occurs is a finding

of poor judgment or intentional misconduct. Discipline is left

to the department head, and perhaps referral to a state bar that

would presumably go through its own investigative process

(and compile its own records) to determine whether

punishment should ensue.

OPR’s investigation, in other words, is several steps

removed from the type of “adjudicative or enforcement”

proceeding or civil sanctions that could warrant Exemption

7(C) protection. Rural Housing Alliance, 498 F.2d at 80.

That is not nearly enough to trigger Exemption 7(C). In this

court, there is “no question that an investigation conducted by

a federal agency for the purpose of determining whether to

discipline employees for activity which does not constitute a

violation of law is not for ‘law enforcement purposes’ under

Exemption 7.” Stern v. FBI, 737 F.2d 84, 90 (D.C. Cir. 1984).

To be sure, enforcement proceedings need not be

imminent for Exemption 7(C) to apply, but they must be “more

than ephemeral possibilities.” Rural Housing Alliance, 498

F.2d at 82 n.48 (emphasis added). Even though almost all of

its complaints are closed without a full investigation, much less

an adverse finding, OPR argues that all of its Wheeler records

21

qualify as law-enforcement records just because of the slight

chance that an inquiry could lead to an investigation that could

lead to a misconduct finding that could result in a state bar

referral that could lead to a bar sanctions hearing. That claim

does not rise above the ephemeral.

This case highlights OPR’s exaggerated reliance on

Exemption 7(C). In August 2014—just days after the Fourth

Circuit issued its opinion reprimanding the U.S. Attorney’s

Office for the Eastern District—OPR wrote an initial

memorandum documenting the court’s referral. In that

memorandum, before any investigation had begun or findings

had been made, OPR concluded that, “[b]ecause former AUSA

Wheeler is no longer employed by the Department, and

because further investigation of AUSA Bragdon is unlikely to

result in a finding of misconduct, it is questionable whether this

matter warrants further inquiry.” J.A. 893 (emphases

added). So right out of the gate, OPR did not find that the

Fourth Circuit’s referral was substantial enough to inquire

further; OPR did not even think Wheeler’s actions warranted a

low-level inquiry. Nor does OPR explain what type of

investigation it conducted, what violations of law it was

investigating, or whether there was ever more than a fleeting

possibility of civil sanctions. That is not an investigation with

an eye toward law-enforcement proceedings.

2

On top of that, the balance between Wheeler’s interest in

privacy and the public’s interest in how OPR handled a federal

appeals court’s concerns about possible prosecutorial

misconduct weighs strongly in favor of disclosure.

On the privacy side of the balance, Wheeler’s interest is

substantially diminished. First, the allegations of misconduct

22

during the Bartko trial are already a matter of public record, as

is the referral to OPR published in the Fourth Circuit’s

decision, and the U.S. Attorney’s public announcement that it

too was referring the allegations of misconduct to OPR. See

Department of Justice v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749, 763 n.15 (1989) (“[T]he interests in

privacy fade when the information involved already appears on

the public record.”) (quoting Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 494–495 (1975)). Any interest Wheeler might

have had in keeping his name in the free-and-clear has already

largely evaporated. See Kimberlin v. Department of Justice,

139 F.3d 944, 949 (D.C. Cir. 1998) (“[The AUSA’s] statement

to the press undoubtedly does diminish his interest in privacy:

the public already knows who he is, what he was accused of,

and that he received a relatively mild sanction.”).

Also, unlike the lower-level staff attorneys whose records

were at issue in Jefferson and Kimberlin, AUSA Wheeler was

a supervisory official in the U.S. Attorney’s Office. At the

time of Bartko’s prosecution and the allegations of

prosecutorial misconduct, Wheeler was the Chief of the

Economic Crimes Section in the U.S. Attorney’s Office. That

supervisory responsibility comes with an increased public

interest in how prosecutorial policies and priorities were both

set and implemented by Wheeler and the individuals under his

direction. Cf. Stern, 737 F.2d at 93–94 (noting that a senior

FBI official had less of a privacy interest than lower level

employees under his supervision who might have simply been

following orders).

On the other side of the scale, the public interest in

knowing what OPR did weighs heavily. FOIA, at its core,

operates on the assumption that “it is for the public to know

and then to judge.” Stern, 737 F.2d at 94. The public has an

interest in knowing “that a government investigation itself is

23

comprehensive, that the report of an investigation released

publicly is accurate, that any disciplinary measures imposed

are adequate, and that those who are accountable are dealt with

in an appropriate manner.” Id. at 92. That is how FOIA

helps “to hold the governors accountable to the governed.”

Id.

That interest crescendos when the misfeasance of a federal

prosecutor with “the power to employ the full machinery of the

state in scrutinizing any given individual” is at stake. Young

v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987).

The public “must have assurance that those who would wield

this power will be guided solely by their sense of public

responsibility for the attainment of justice.” Id.

The significant public interest in this case is corroborated

by the decision of the U.S. Attorney’s Office to overhaul its

discovery and disclosure practices in response to the Fourth

Circuit’s decision. Indeed, the U.S. Attorney’s Office

“admit[ted]” its failures and imposed more stringent discovery

review and disclosure policies on its attorneys. Gov’t’s Pet.

for Reh’g 3, Bartko, No. 12-4298 (4th Cir. Sept. 6, 2013), ECF

No. 105. Such “[m]atters of substantive law enforcement

policy,” and the events that set them in motion, “are properly

the subject of public concern,” American Civil Liberties Union,

655 F.3d at 14 (quoting Reporters Comm., 489 U.S. at 766

n.18). There is also a corresponding public interest in

knowing if the government’s remedial measures adequately

redressed the harm that prompted the policy changes. See

CREW, 854 F.3d at 679 (“[There is a] weighty public interest

in shining a light on the FBI’s investigation of major political

corruption and the [Department of Justice]’s ultimate decision

not to prosecute,” which the court explained was “not to find

out what the [accused] himself was ‘up to’ but rather how the

FBI and [Department of Justice] carried out their respective

24

statutory duties[.]”) (internal citation and quotation marks

omitted).

Finally, because the public interest substantially

outweighs any residual privacy interest Wheeler might retain

with respect to his conduct in the Bartko case, OPR’s reliance

on Exemption 6’s even more demanding standard fails as well.

See Section II.A.2, supra.

3

While OPR erred in withholding eight records under

Exemptions 6 and 7(C), the remainder of the documents that

Bartko seeks concerning the investigation into his prosecution

were properly withheld under Exemption 5, 5 U.S.C.

§ 552(b)(5). That Exemption insulates from disclosure

“inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency

in litigation with the agency.” Id. Exemption 5 is most

commonly invoked to protect the deliberative-process

privilege, the attorney work-product privilege, and the

attorney-client privilege. See Coastal States Gas Corp. v.

Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).

Our in camera review confirms the district court’s ruling that

Exemption 5 was properly applied to protect OPR’s

deliberative, pre-decisional process and its discussion of

matters related purely to the pending FOIA litigation.

C

Bartko also challenges the invocation of Exemption 7(C)

by the FBI, the U.S. Postal Inspection Service, the Securities

25

and Exchange Commission, the Executive Office for U.S.

Attorneys, and the Internal Revenue Service.

As to the FBI and Postal Inspection Service, the nature of

their law-enforcement roles, the types of records requested, and

the balance of interests involved together support the claimed

Exemption.

As a preliminary matter, unlike OPR’s documents, the

FBI’s and Postal Inspection Service’s records were compiled

for law-enforcement purposes as they were collected during an

investigation that “focus[ed] directly on” Bartko’s

“specifically alleged” criminal activities. See, e.g., Bartko v.

Department of Justice, 2015 WL 9272833, at *5 (D.D.C. Dec.

18, 2015) (“[I]t is undisputed that the records in question were

created for law-enforcement purposes[:] Plaintiff’s

investigative main file was compiled by the FBI during its

criminal investigation of plaintiff and others for the crimes of

conspiracy to commit mail fraud, the sale of unregistered

securities and money laundering, and engaging in unlawful

monetary transactions.”) (internal quotation marks omitted);

Bartko v. Department of Justice, 167 F. Supp. 3d 55, 67

(D.D.C. 2016) (“Bartko concedes that the [Postal Inspection

Service] records he wants were compiled for law-enforcement

purposes.”).

Unlike OPR’s, the FBI’s application of Exemption 7(C)

was measured and carefully calibrated to balance the

competing private and public interests. In response to

Bartko’s request for records about his purported co-

conspirators, the FBI processed 1,233 pages, released 1,099

pages to Bartko in full or in part, and withheld 134 pages.

Bartko, 2015 WL 9272833, at *1. The FBI identified eight

categories of names and identifying information that it

withheld pursuant to the Exemption: (1) FBI special agents

26

and support employees; (2) third parties of investigative

interest; (3) non-FBI federal-governmental personnel; (4) third

parties merely mentioned; (5) recipients of subpoenas; (6)

third-party victims; (7) third parties who provided information

to the FBI; and (8) state law-enforcement employees. Id. at

*5.

As this Court has held, “third parties,” “witnesses,” and

“informants” mentioned in investigatory files maintain a

privacy interest “in keeping secret the fact that they were

subjects of a law enforcement investigation.” Nation

Magazine v. United States Customs Service, 71 F.3d 885, 894

(D.C. Cir. 1995); see also Martin v. Department of Justice, 488

F.3d 446, 457 (D.C. Cir. 2007) (“We also note that privacy

interests are particularly difficult to overcome when law

enforcement information regarding third parties is

implicated.”). For that reason, the FBI is permitted “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. Department of

Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (quoting SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)).

That privacy protection also extends to law-enforcement

personnel who “do[] not forgo altogether any privacy claim in

matters related to official business.” Lesar v. Department of

Justice, 636 F.2d 472, 487 (D.C. Cir. 1980); see also

Kimberlin, 139 F.3d at 949. The district court’s in camera

review confirmed the FBI’s precise approach to only redacting

information implicating those recognized privacy interests, and

approved its reasonable segregation of all disclosable material.

Bartko, 2015 WL 9272833, at *7. Given the FBI’s

individualized justification for each category of withheld

material, the district court’s in camera review, and Bartko’s

27

failure to explain how disclosure would serve the public

interest, we affirm the withholding of documents on those

grounds.

Bartko launches the same attack against the Postal

Inspection Service’s invocation of Exemption 7(C), arguing

that the public interest mandates disclosure in spite of any

third-party privacy interests. In this particular request, Bartko

sought records “contained in the files of [the Postal Inspection

Service] and specifically under [Bartko’s] name and/or

identifier assigned to [Bartko’s] name,” such as arrest records

and investigation reports. J.A. 343. As previously

discussed, third parties retain a privacy interest in not being

associated with an investigation. And the district court’s

review of the documents confirmed that the withheld records

did “not contain any information that appeared to reflect

prosecutorial or agency misconduct,” Bartko, 167 F. Supp. 3d

at 70, so the public interest in disclosure cannot overcome the

privacy interests at stake. See Favish, 541 U.S. at 172 (“[T]he

citizen must show that the public interest sought to be advanced

is a significant one * * * [and] must show the information is

likely to advance that interest. Otherwise, the invasion of

privacy is unwarranted.”).

Bartko conclusorily asserts that the IRS’s and the

Commission’s application of Exemption 7(C) was improper,

but he fails to offer any specific arguments as to why. 3 See

3

Bartko also challenges the Executive Office of U.S.

Attorneys’ invocation of Exemption 7(C), but none of the district

court orders or judgments under review approve of that Office’s

application of Exemption 7(C). See generally Bartko v.

Department of Justice, 2014 WL 12787640 (D.D.C. Sept. 9, 2014);

Order, Bartko v. Department of Justice, No. 13-cv-1135 (D.D.C.

Dec. 11, 2014); Bartko v. Department of Justice, 102 F. Supp. 3d 342

(D.D.C. 2014). Nor does Bartko identify what ruling he contests.

28

Bartko Br. 9 (“Bartko asserts on appeal that the strength of the

public’s interest in access to the withheld records outweighs the

claims asserted by the six Defendant-Agencies that relied upon

Exemption (b)(7)(C) to withhold records and information.”);

id. at 22 (“The District Court erred in upholding the IRS claim

of exemption.”); id. at 28 (“[T]he claim of the (b)(7)(C)

exemption by the [Postal Inspection Service], as well as the

other Defendant-Agencies (including the 136 pages withheld

by the IRS), fails and this Court should so hold.”). As to those

agencies, Bartko neither specifies the portions of the district

court’s analyses that he challenges nor the alleged errors in the

agencies’ justifications for the claimed exemption.

As best we can tell, the gist of Bartko’s argument seems to

be that the public interest involved overrides any potential

privacy interest at stake. But as Favish held, it is Bartko’s

burden to show, for each set of records he seeks (which varied

greatly from agency to agency), that “the public interest sought

to be advanced is a significant one,” and that “the [requested]

information is likely to advance that interest.” 541 U.S. at

172; see Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C.

Cir. 2005) (“It is not enough merely to mention a possible

argument in the most skeletal way.”) (internal quotation

omitted). Because Bartko has failed to do so, this Court

affirms the district court’s decisions regarding the IRS’s and

the Commission’s invocation of Exemption 7(C).

Therefore, the Court will not address this undeveloped objection.

Cf. Goos v. National Ass’n of Relators, 997 F.2d 1565, 1572 (D.C.

Cir. 1993) (refusing to consider a “twice-speculative” claim with an

“uncertain foundation” because “this court tries not to base its

decisions on mind reading”).

29

III

One of Bartko’s remaining objections to the agencies’

searches warrants further attention by the district court, while

the rest are without merit.

A

Bartko seeks the disclosure of a “thumb drive” that “was

produced in response to a Grand Jury Subpoena to a third party

individual” and contained “specific documents sought by the

Grand Jury.” J.A. 952.

FOIA Exemption 3 allows the government to withhold

records that are “specifically exempted from disclosure by

[another] statute[.]” 5 U.S.C. § 552(b)(3). A common

example of a qualifying Exemption 3 statute is Federal Rule of

Criminal Procedure 6(e), which bars disclosure of “a matter

occurring before the grand jury.” FED. R. CRIM. P. 6(e)(2)(B).

Specifically, Rule 6(e) protects information that would “tend to

reveal some secret aspect of the grand jury’s investigation,

including the identities of witnesses or jurors, the substance of

testimony, the strategy or direction of the investigation, or the

deliberations or questions of jurors.” Hodge v. FBI, 703 F.3d

575, 580 (D.C. Cir. 2013) (citation and internal quotation

marks omitted). Rule 6(e) does not, however, “draw ‘a veil

of secrecy * * * over all matters occurring in the world that

happen to be investigated by a grand jury.’” Labow v.

Department of Justice, 831 F.3d 523, 529 (D.C. Cir. 2016)

(alteration in original) (citation omitted).

Invoking Exemption 3’s protection of grand jury

materials, the FBI withheld the thumb drive from disclosure.

Because the only information contained on the thumb drive

was obtained in response to a grand jury subpoena, the FBI

30

asserted that “[a]ny disclosure of the information * * * would

clearly violate the secrecy of the grand jury proceedings and

could reveal the inner workings of a federal grand jury[.]”

J.A. 953.

With commendable due diligence, the district court

reviewed the records at issue in camera and agreed that

withholding was proper on the ground that the thumb drive

“contain[ed] information about the names of recipients of

federal grand-jury subpoenas; information that identifie[d]

specific records subpoenaed by a federal grand jury; and copies

of specific records provided to a federal grand jury in response

to such a subpoena.” Bartko, 2015 WL 9272833, at *4. On

all points but the last, we agree.

In the time between the district court’s decision and this

appeal, this court clarified that documents that “would reveal

to the requester that they had been subpoenaed” by a grand jury

would be protected, but documents that “would not necessarily

reveal a connection to a grand jury” would not. Labow, 831

F.3d at 529. The record before us does not answer whether

the documents on the thumb drive themselves “would have

revealed something about the workings of the grand jury had

they been released with other requested documents,” and thus

we cannot say that they would have been identifiable as

materials sought by the grand jury. Id. at 530.

As recognized by Labow, “it may turn out, in this case, that

most, or even all, of the material withheld pursuant to

[Exemption 3] cannot be disclosed without compromising the

secrecy of a grand jury’s deliberations,” but “[t]he mere fact

the documents were subpoenaed fails to justify withholding

under Rule 6(e).” Id. For that reason, we remand to the

district court for further consideration in light of our

intervening decision in Labow.

31

B

Bartko next faults the Securities and Exchange

Commission for conducting an inadequate search and for

improperly applying Exemptions 5 and 8 to withhold or redact

records. He fails to persuade on all three challenges.

As to the adequacy of the Commission’s search, Bartko

argues that it failed to search a supposed “third file” that

purportedly contained information about the Capstone Fund.

The problem for Bartko is that there is no discernible evidence

in the record that any such third file exists. The Commission

explained that, in searching for responsive documents, it had

used all of the names listed in the FOIA request as search

criteria and searched its Name Recognition Search Index.

That identified two (not three) relevant investigative “matters”

with responsive records. J.A. 540. As the district court

found, there is “no evidence * * * that the [Commission’s]

Atlanta Regional Office even had a file on Capstone Partners

during the relevant time period,” and Bartko did not provide an

“appropriate alternative approach to the search” that might

uncover what he seeks. Bartko v. Department of Justice,

2016 WL 4506968, at *6 (D.D.C. Aug. 26, 2016).

Bartko’s continued speculation that a third file exists is not

enough to undermine the adequacy of the Commission’s

search. “Agency affidavits 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., 926 F.2d at 1200

(citation omitted). Nor does the failure of a search to uncover

a particular sought-after document evidence the search’s

insufficiency. See Iturralde v. Comptroller of Currency, 315

F.3d 311, 314 (D.C. Cir. 2003) (“[I]t is long settled that the

32

failure of an agency to turn up one specific document in its

search does not alone render a search inadequate.”).

Bartko also takes issue with the Commission’s reliance on

Exemption 8 to withhold two documents. Exemption 8

allows agencies to hold back material that is “contained in or

related to examination, operating, or condition reports prepared

by, on behalf of, or for the use of an agency responsible for the

regulation or supervision of financial institutions.” 5 U.S.C.

§ 552(b)(8). Bartko argues that the Caledonian and Capstone

Funds that he managed and that were investigated by the

Commission are not “financial institutions” regulated by the

Commission, and thus do not fall within Exemption 8.

Bartko’s argument fails before it even starts. He did not

challenge the Commission’s reliance on Exemption 8 in the

district court. J.A. 583 (acknowledging that the

Commission’s “withholding of document 36 and 38 is

understandable”). So he has forfeited the challenge. See

Chichakli v. Tillerson, 882 F.3d 229, 234 (D.C. Cir. 2018)

(“But [the appellant] failed to raise this argument below, and

therefore it is forfeited.”). And there is no reason for us to

exercise our discretion to reach the question given that both

withheld documents—a report of an examination of a broker-

dealer, pursuant to 15 U.S.C. § 78q(b), and a letter relating to

that report—fall within Exemption 8’s heartland.

Lastly, Bartko contends that Exemption 5’s attorney work-

product privilege cannot apply because Commission staff

“engaged in investigatory misconduct” when working with

Bartko’s criminal prosecution team. Bartko Br. 43. But the

case on which Bartko relies, Moody v. IRS, 654 F.2d 795 (D.C.

Cir. 1981), involved a different situation in which the attorney

admitted to “unprofessional conduct,” and, in providing

guidance to the district court on remand, this court stated that

33

only “tainted work product” resulting from that misconduct

“need be released.” Id. at 800 n.17, 801 n.20. Unlike in

Moody, the Commission has admitted to no impropriety here,

Bartko has offered no evidence of misconduct, and there is no

evidence that the records sought by Bartko were the result of

any alleged wrongdoing.

IV

Lastly, Bartko challenges the Executive Office for U.S.

Attorneys’ charge of a fee for processing his FOIA request.

Citing its policy that the first 101 pages of released records are

free, while the remaining 519 pages come at a cost, the

Executive Office required Bartko to pay a $51.90 processing

fee before releasing the material to him. Bartko is correct:

he should not have been charged that fee.

When, as here, records are not requested for commercial

use, an agency may only charge reasonable fees “for document

search and duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(III).

And FOIA directs that the fee be waived “if disclosure of the

information is [i] in the public interest because it is likely to

contribute significantly to public understanding of the

operations or activities of the government and [ii] is not

primarily in the commercial interest of the requester.” Id.

§ 552(a)(4)(A)(iii). “[F]ee-waiver applications are to be

‘liberally construed’ in favor of * * * requesters.” National

Sec. Counselors v. Department of Justice, 848 F.3d 467, 473

(D.C. Cir. 2017).

The parties agree in this case that Bartko satisfies the

second prong because the information sought does not serve

any personal commercial interest. Bartko v. Department of

Justice, 102 F. Supp. 2d 342, 350 (D.D.C. 2015) (“EUOSA

34

concedes that disclosure is not primarily in Bartko’s

commercial interest[.]”).

With respect to the first prong, Bartko is entitled to a fee

waiver if he shows in “reasonably specific” and “non-

conclusory terms” that the disclosed records would contribute

to public understanding of the government’s activities.

National Sec. Counselors, 848 F.3d at 473. Measuring the

contribution to public understanding turns upon “the degree to

which ‘understanding’ of government activities will be

advanced by seeing the information; and the extent of the

‘public’ that the information is likely to reach.” Cause of

Action v. FTC, 799 F.3d 1108, 1116 (D.C. Cir. 2015). “FOIA

does not require [however] that a requester be able to reach a

‘wide audience,’” just a “reasonably broad audience of persons

interested in the subject.” Id.

Bartko’s request satisfies those criteria. He explained in

some detail how the requested records would contribute to

public understanding. The information, he reasoned, was

needed to “follow-up on the government’s actions and/or

inaction” in light of the Fourth Circuit’s spotlight on the

“serious discovery abuses by federal prosecutors in [the

Eastern District of North Carolina].” J.A. 678. In that

sense, disclosure 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.” J.A. 678–679.

Bartko was also uniquely positioned to convey this

information because his prosecution had already garnered

“significant media interest,” and he was able to add a personal

element by describing the damage that the “misconduct and

35

improprieties of federal prosecutors” can have on individual

citizens. J.A. 678. Indeed, he identified three public service

websites with which he had already shared information and

attached an article that had been written about the prosecutorial

errors in his case. That explanation demonstrated in

reasonably specific and non-conclusory terms why his FOIA

request mattered, and how the records in question could shed

light on matters already identified by the Fourth Circuit as

important to the integrity of the criminal justice system.

The district court acknowledged that there were “public

interest benefits to be gained,” but concluded that “they [we]re

minimal in comparison to the unavoidably obvious personal

purpose for which the records [we]re sought”—that is,

bolstering Bartko’s habeas corpus effort. Bartko, 102

F. Supp. 3d at 351. That was legal error. FOIA states that a

fee waiver is available as long as disclosure “is not primarily in

the commercial interest of the requester.” 5 U.S.C.

§ 552(a)(4)(A)(iii) (emphasis added). No party contends that

the release of records would be in Bartko’s financial interest.

Beyond that, it does “no[t] * * * matter[] whether the

information will also (or even primarily) benefit the requester.”

Cause of Action, 799 F.3d at 1118 (emphasis added). “Nor

does it matter whether the requester made the request for the

purpose of benefiting itself.” Id. All that matters is whether

these records are likely to significantly contribute to public

understanding. See id.

In short, the public interest in the material Bartko seeks is

substantial given the Fourth Circuit’s disclosure of a troubling

pattern of prosecutorial missteps and the U.S. Attorney’s

Office’s recognition that errors had been made and changes

would be implemented. Disclosure will reveal what is yet

unknown—how the government handled the misconduct

allegations internally and how it responded to the significant

36

concerns expressed by the Fourth Circuit. Bartko, for his

part, is sharing the information with an interested public.

Since there is no claim that Bartko has a commercial interest in

the documents, and the material is in the public’s interest, he

qualified for a fee waiver. 4

* * * * *

For the foregoing reasons, we reverse the district court’s

award of summary judgment with respect to (i) OPR’s use of

Exemption 7(C) to justify its Glomar response and other

withheld records, and (ii) its denial of Bartko’s fee waiver

request. The court will also remand for the district court to

reconsider its decision regarding the FBI’s withholding

pursuant to Exemption 3 and Criminal Rule of Procedure 6.

So ordered.

4

The court leaves to the district court to determine, if and when

appropriate, how this decision impacts Bartko’s challenge to the

Executive Office’s advance search-fee charge for FOIA request

2014-00486.