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DC CIRCUIT HAMMERS DOJ OVER FREEDOM OF INFORMATION ACT ARROGANCE
Who hasn’t had this happen? You file a Freedom of Information Act request seeking documents showing prosecutorial misconduct, only to wait many months for a two-page letter claiming that all of the requested material is exempt law-enforcement stuff. And it’s hard to appeal, because you cannot tell what records were not included, so you cannot argue that the withheld records were non-exempt.
That happened to Greg Bartko. After he was convicted in a case “beset by prosecutorial misfeasance,” as the DC Circuit put it, he filed multiple Freedom of Information Act requests with the Dept. of Justice Office of Professional Responsibility and other relevant agencies trying to get records of other times the Assistant U.S. Attorney assigned to his case had cut corners. OPR categorically refused to acknowledge the existence of, let alone disclose any, potentially relevant documents outside of Greg’s own case. And even with respect to Greg’s case, OPR held back a lot of material, asserting a sweeping exemption for law enforcement records under FOIA Exemption 7(C) and providing a “Glomar” response that it could neither confirm or deny the records existed, because that would implicate law enforcement activities.
Last week, the DC Circuit slammed OPR’s reckless use of Exemption 7(C) and its arrogant “Glomar” claim (which exists to enable agencies to dodge making admissions about records for national security reasons). To qualify as law-enforcement records, the Circuit said, “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. Records documenting only government surveillance or oversight of the performance of duties of its employees do not qualify.
The Circuit held that 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 or incident and a violation of federal law. OPR does not do law enforcement, but instead internal DOJ discipline. Plus, one of OPR’s primary responsibilities is not to generate reports, but rather just to obtain reports from others that arise as a result of internal agency monitoring and review allegations of non-law violations by DOJ attorneys for internal disciplinary purposes. Thus, the Court said, OPR bears the burden of showing on a case-by-case basis that requested records were actually compiled for law-enforcement, rather than employment-supervision purposes.
In defense of its Glomar response, OPR offered only a bare-bones declaration that the records Greg requested consist of complaints or allegations of misconduct which, if they exist at all, would have been compiled as part of OPR’s investigations of DOJ attorneys “who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” The Court said that “is not even in the ballpark.” OPR “cannot rely on a bare assertion to justify invocation of an exemption from disclosure.” A “near-verbatim recitation of the statutory standard is inadequate” to justify the use of an exemption.
Greg’s FOIA request was broadly worded to include a wide variety of actual or alleged violations by the AUSA 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, the Court said, many of them would not and would bear only on internal disciplinary matters.
Bartko v. DOJ, Case No. 16-5333 (D.C.Cir., Aug. 3, 2018)
– Thomas L. Root