Bartko v. United States Department of Justice ( 2015 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    GREGORY BARTKO,
    Plaintiff,
    v.                                         Civil Action No. 13-1135 (JEB)
    UNITED STATES DEPARTMENT OF
    JUSTICE, et al.,
    Defendants.
    MEMORANDUM OPINION
    Pro se Plaintiff Gregory Bartko, who is currently serving a lengthy prison term for white-
    collar offenses, has sent a spate of Freedom of Information Act requests to various federal
    agencies, hoping to obtain records demonstrating prosecutorial misconduct in his case. The
    Court has already issued several other Opinions addressing the merits of certain requests, see,
    e.g., Bartko v. DOJ, 
    2014 WL 3834343
    (D.D.C. Aug. 5, 2014), and it now examines the Internal
    Revenue Service’s withholding of 136 pages under certain FOIA exemptions. Believing that the
    IRS has appropriately declined to release these records, the Court will grant its Partial Motion for
    Summary Judgment and deny Plaintiff’s.
    I.     Background
    As a prior Opinion set forth in some detail the factual background of this suit, see 
    id., the Court
    will now describe only those events that directly relate to the Motion considered here.
    The facts relating to the particular FOIA request at issue, moreover, are essentially undisputed.
    1
    On January 7, 2013, Bartko submitted a request to the United States Postal Inspection
    Service (USPIS) seeking “all records and/or data contained in the files of your agency and
    specifically under my name and/or identifier assigned to my name as set forth above.” Def.
    Mot., Att. 1 (Declaration of Kimberly Williams), Exh. A (Letter) at 1. The letter then listed
    specific types of files that were included within his request. See 
    id. After a
    detailed search
    uncovered over 1000 pages, USPIS referred some of the documents to other agencies for direct
    responses to Plaintiff. See Williams Decl., ¶¶ 4, 10. Of relevance to this Motion, 136 pages
    were referred to the IRS because those documents had originated there. See Def. Mot., Att. 2
    (Declaration of Michael Franklin), ¶ 3. (As they derived from a joint criminal investigation
    undertaken by the FBI, the IRS, and USPIS, they had ultimately wound up with that last agency.
    See 
    id., ¶ 8.)
    According to the IRS, these documents consist solely of memoranda of interviews with
    witnesses in an IRS criminal investigation. See 
    id. That investigation,
    notably, was of someone
    other than Bartko. See 
    id. Each memorandum
    was authored by IRS Criminal Investigation
    Special Agent William DeSantis, see 
    id., and all
    were withheld under FOIA Exemptions 6 and
    7(C).
    Bartko filed suit here on July 26, 2013, naming a congeries of agency Defendants. On
    May 23, 2014, USPIS and the IRS jointly moved for partial summary judgment, see ECF No. 58,
    and Plaintiff cross-moved on June 6. See ECF No. 65. The Court then granted many extensions,
    in part because the parties wished to await its rulings related to other agencies’ motions. See,
    e.g., Minute Order of Nov. 7, 2014. USPIS eventually withdrew its part of the Motion and will
    file a renewed pleading, while the IRS decided to stand on its initial brief. See ECF No. 143
    2
    (Motion for Extension of Time) at 1. The Court thus considers only the two cross-motions, ECF
    Nos. 58 & 65.
    II.    Legal Standard
    Summary judgment may be granted if “the movant shows that there is no genuine dispute
    as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
    56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
    See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986) (“Only disputes over facts that
    might affect the outcome of the suit under the governing law will properly preclude the entry of
    summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
    construe the evidence in the light most favorable to the non-moving party. See 
    Sample, 466 F.3d at 1087
    .
    FOIA cases typically and appropriately are decided on motions for summary judgment.
    See Brayton v. Office of U.S. Trade Rep., 
    641 F.3d 521
    , 527 (D.C. Cir. 2011). In such cases, the
    agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 
    492 U.S. 136
    , 142 n.3
    (1989). The Court may grant summary judgment based solely on information provided in an
    agency’s affidavits or declarations when they describe “the documents and the justifications for
    nondisclosure with reasonably specific detail, demonstrate that the information withheld
    logically falls within the claimed exemption, and are not controverted by either contrary
    evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
    
    656 F.2d 724
    , 738 (D.C. Cir. 1981).
    III.   Analysis
    Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open
    agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 
    425 U.S. 352
    , 361
    3
    (1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
    the functioning of a democratic society, needed to check against corruption and to hold the
    governors accountable to the governed.” John Doe Agency v. John Doe Corp., 
    493 U.S. 146
    ,
    152 (1989) (citation omitted). “Unlike the review of other agency action that must be upheld if
    supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
    burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
    de novo.’” U.S. Dept. of Agriculture v. Reporters Comm., 
    489 U.S. 749
    , 755 (1989) (quoting 5
    U.S.C. § 552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong
    presumption in favor of disclosure’ . . . .” Nat’l Ass’n of Home Builders v. Norton, 
    309 F.3d 26
    ,
    32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 
    502 U.S. 164
    , 173 (1991)).
    With these standards in mind, the Court will consider the single issue raised by the
    Motion: is the IRS’s invocation of Exemption 6 or 7(C) appropriate? In doing so, the Court
    begins with the parameters of those two exemptions, balances the interests involved here, and
    then analyzes segregability.
    A. Exemptions 6 and 7(C)
    Exemption 6 protects “personnel and medical files and similar files the disclosure of
    which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
    § 552(b)(6). Exemption 7(C) excludes “records of information compiled for law enforcement
    purposes . . . to the extent that the production of such law enforcement records or information . . .
    could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
    U.S.C. § 552(b)(7)(C). Both provisions require agencies and reviewing courts to “balance the
    privacy interests that would be compromised by disclosure against the public interest in release
    4
    of the requested information.” Beck v. Dep’t of Justice, 
    997 F.2d 1489
    , 1491 (D.C. Cir. 1993)
    (quoting Davis v. U.S. Dep’t of Justice, 
    968 F.2d 1276
    , 1281 (D.C. Cir. 1992)).
    Although both exemptions require agencies and reviewing courts to undertake the same
    weighing of interests, the balance tilts more strongly toward nondisclosure in the context of
    Exemption 7(C) because its “privacy language is broader than the comparable language in
    Exemption 6 in two respects.” Reporters 
    Comm., 489 U.S. at 756
    . First, Exemption 6
    encompasses “clearly unwarranted” invasions of privacy, while Exemption 7(C) omits the
    adverb “clearly.” See 
    id. Second, Exemption
    6 prevents disclosures that “would constitute” an
    invasion of privacy, while Exemption 7(C) targets disclosures that “could reasonably be
    expected to constitute” such an invasion. See 
    id. Both differences
    are the result of specific
    amendments, reflecting Congress’s conscious choice to provide greater protection to law-
    enforcement materials than to personnel, medical, and other similar files. See 
    id. Courts have
    accordingly held that Exemption 7(C) “establishes a lower bar for withholding material” than
    Exemption 6. See ACLU v. Dep’t of Justice, 
    655 F.3d 1
    , 6 (D.C. Cir. 2011); see also 
    Beck, 997 F.2d at 1491
    .
    As a result, if the records and information the IRS seeks to withhold in this case were
    “compiled for law enforcement purposes,” the Court may only address whether the Service has
    properly withheld these documents under Exemption 7(C), and there is no need to consider the
    higher bar of Exemption 6. Plaintiff here never contests the fact that the records were compiled
    for law-enforcement purposes. Nor would he have much luck doing so given that they all relate
    to an IRS criminal investigation. See Franklin Decl., ¶ 8.
    This threshold question answered, the first step in the Exemption 7(C) analysis is to
    determine whether there is, in fact, a privacy interest in the materials sought. See ACLU, 
    655 5 F.3d at 6
    . In this context, the Supreme Court has rejected a “cramped notion of personal
    privacy” and emphasized that “privacy encompass[es] the individual’s control of information
    concerning his or her person.” Reporters 
    Comm., 489 U.S. at 763
    . To constitute a privacy
    interest under FOIA, the claimed interest must be “substantial.” Multi Ag Media LLC v. USDA,
    
    515 F.3d 1224
    , 1229-30 (D.C. Cir. 2008); see also Roth v. Dep’t of Justice, 
    642 F.3d 1161
    , 1174
    (D.C. Cir. 2011). “[S]ubstantial,” however, “means less than it might seem. A substantial
    privacy interest is anything greater than a de minimis privacy interest.” Multi Ag 
    Media, 515 F.3d at 1229-30
    .
    In the context of Exemption 7(C), it is well established that “individuals have a strong
    interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. FBI, 
    737 F.2d 84
    , 91-92 (D.C. Cir. 1984); see also Fitzgibbon v. CIA, 
    911 F.2d 755
    , 767 (D.C. Cir. 1990)
    (“It is surely beyond dispute that ‘the mention of an individual’s name in a law enforcement file
    will engender comment and speculation and carries a stigmatizing connotation.’”) (quoting
    Branch v. FBI, 
    658 F. Supp. 204
    , 209 (D.D.C. 1987)); Nation Magazine, Wash. Bureau v.
    Customs Serv., 
    71 F.3d 885
    , 894 (D.C. Cir. 1995) (“[I]ndividuals have an obvious privacy
    interest . . . in keeping secret the fact that they were subjects of a law enforcement
    investigation.”). Even the mere acknowledgement of the existence of records relating to criminal
    investigations (let alone their contents) can constitute an invasion of privacy. This privacy
    interest is strongest where the individuals in question “have been investigated but never publicly
    charged.” 
    ACLU, 655 F.3d at 7
    . As far as the Court knows, this is the case here.
    It is not just the subject of the investigation who has privacy rights, however. “[T]hird
    parties who may be mentioned in investigatory files, as well as . . . witnesses and informants who
    provided information during the course of an investigation,” have a privacy interest in the
    6
    contents of law-enforcement records. See Nation 
    Magazine, 71 F.3d at 894
    ; see also Kimberlin
    v. Dep’t of Justice, 
    139 F.3d 944
    , 949 (D.C. Cir. 1998) (“It goes almost without saying,
    moreover, that individuals other than [the target of the investigation] whose names appear in the
    file retain a strong privacy interest in not being associated with an investigation involving
    professional misconduct . . . .”). Indeed, this interest is so strong that our Circuit has “adopted a
    categorical rule permitting an agency to withhold information identifying private citizens
    mentioned in law enforcement records, unless disclosure is ‘necessary in order to confirm or
    refute compelling evidence that the agency is engaged in illegal activity.’” Schrecker v. Dep’t of
    Justice, 
    349 F.3d 657
    , 661 (D.C. Cir. 2003) (quoting 
    SafeCard, 926 F.2d at 1206
    ).
    B. Balancing of Interests
    Having set forth the general privacy interests related to criminal investigations, the Court
    must now assess whether such interests exist here. This is not an onerous task. The IRS explains
    that the subject of the investigation was a third person, not Bartko. According to Michael
    Franklin, an attorney in the IRS’s Office of the Associate Chief Counsel who has reviewed the
    136 pages at issue, all of these records “provide[] details of the third party criminal
    investigation.” Franklin Decl., ¶¶ 1, 15. “The dialogue, individuals interviewed, subject matter,
    and other information appearing on these pages would provide sufficient information, if
    revealed, to identify the third party who is the subject of the investigation.” 
    Id., ¶ 15.
    In
    addition, “the material reflects the names, telephone numbers, social security numbers, and
    taxpayer identification numbers of witnesses interviewed in the furtherance of the USPIS
    investigation of a third party.” 
    Id. The IRS
    has thus placed a significant privacy weight on the
    scales.
    7
    To offset this weight, Bartko produces very little. The only interest he articulates that
    could remotely be labeled as public is that “within the 136 pages . . . , each of the individuals
    interviewed by S/A DeSantis were either co-defendants, alleged co-conspirators or witnesses
    who’s [sic] statements also bear relevance to Bartko’s investigation and prosecution.” 
    Id. at 15-
    16. But relevance is not the test. The question under Schrecker is whether disclosure is
    necessary in the public interest to determine if the agency engaged in illegal activity. As
    Plaintiff does not even assay this hurdle, the Court cannot find he has surmounted it. In an
    ultimate balancing, something in the privacy bowl outweighs nothing in the public-interest bowl
    every time.
    C. Segregability
    Plaintiff last objects – in rather summary fashion – that Defendants’ segregability
    analysis is insufficient. While the Government is “entitled to a presumption that [it] complied
    with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 
    703 F.3d 575
    , 582
    (D.C. Cir. 2013), this presumption of compliance does not vitiate its obligation to carry its
    evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v.
    U.S. Dep’t of Air Force, 
    566 F.2d 242
    , 261 (D.C. Cir. 1977). The agency must provide “a
    detailed justification and not just conclusory statements to demonstrate that all reasonably
    segregable information has been released.” Valfells v. CIA, 
    717 F. Supp. 2d 110
    , 120 (D.D.C.
    2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 
    97 F.3d 575
    , 578 (D.C. Cir. 1996) (determining Government affidavits explained nonsegregability
    of documents with “reasonable specificity”). “Reasonable specificity” can be established
    through a “combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office
    for U.S. Attorneys, 
    310 F.3d 771
    , 776 (D.C. Cir. 2002).
    8
    Although Franklin’s testimony on segregability is somewhat conclusory, see Franklin
    Decl., ¶¶ 17-20, the Court sees no reason here to question it. The documents at issue are all
    memoranda of witness interviews. Since any disclosure of the identity of either the subject of
    the investigation or witnesses would be improper, it is highly unlikely that any material in these
    memoranda could be released without compromising such information. The Court thus
    concludes that the IRS has passed the segregability examination.
    IV.    Conclusion
    For the foregoing reasons, the Court will grant summary judgment in favor of the IRS on
    these documents referred by the USPIS. An Order consistent with this Opinion shall issue this
    day.
    /s/ James E. Boasberg
    JAMES E. BOASBERG
    United States District Judge
    Date: February 9, 2015
    9