Wednesday, August 31, 2016

End of the road reached in FOIA request saga

By Rodney F. Tonkovic, J.D.

A D.C. Circuit judge has denied the final extant FOIA request out of a slew filed by Gregory Bartko in an effort to overturn his convictions. At issue was whether the SEC's search for responsive records was sufficiently comprehensive. The court concluded that the Commission's search was reasonable and adequate and granted its motion for summary judgment (Bartko v. U.S. DOJAugust 26, 2016, Boasberg, J.).

FOIA request. Pro se plaintiff Bartko, who is serving a twenty-three year sentence, was convicted in 2010 of conspiracy, mail fraud, and the sale of unregistered securities. In May 2011, Bartko filed a FOIA request with the SEC, seeking records in six categories. Bartko sought evidence that would support his belief that an SEC attorney had colluded with the Assistant U.S. Attorney in charge of his prosecution. Bartko sent similar requests to several other federal agencies, including the Department of Justice, the Federal Bureau of Investigation, and the United States Postal Inspection Service.

The Commission's Office of FOIA Services (OFS) identified two matters in the SEC’s Atlanta Regional Office as possibly responsive and informed Bartko of this fact. Because one of the files was voluminous, Bartko narrowed his request to records relating to the SEC investigation of Capstone Private Equity Bridge & Mezzanine Fund, LLC, a fund created by Bartko in 2004. Searching for "Capstone," OFS found potentially responsive records, but was unclear whether they were in the previously-identified files.

His request having stalled, Bartko filed suit, and the Commission cross-moved for summary judgment while simultaneously delivering 1290 pages of records from one file. At issue was whether the SEC had properly invoked certain exemptions in withholding other documents and whether it had adequately conducted its search. The court concluded that Bartko's first contention was meritless but the Commission did not demonstrate that its search had been adequate. The court then directed the Commission to show why the other file was not searched for records responsive to the narrowed FOIA request.

Summary judgment. As requested, the Commission searched the file at issue and confirmed that it did not contain records relating to the Capstone inquiry. An attorney at the Atlanta Regional Office made a declaration in good faith that the file did not contain responsive materials, and this was sufficient to carry the Commission's adequate-search burden, the court said.

Bartko nonetheless maintained that the Commission's overall search was inadequate because it failed to produce a number of responsive records that he claims were in its possession at the time. In support, Bartko introduced a table listing what he believed to be responsive, non-exempt documents that were never been identified or released to him. The court said, however, that Bartko failed to adequately identify how these documents were responsive to his narrowed FOIA request. "That Bartko has identified other information of interest to him that the SEC did not produce does not render the agency's FOIA search inadequate, especially where he has not shown that such material is responsive to his request," the court said.

Finally, Bartko contended that responsive materials may exist outside of the two identified files. According to the court, an agency is merely required to explain that no other record system was likely to produce responsive documents, and the Commission did just that. The court found nothing obligating the Commission to search every file that Bartko believed might contain responsive materials after it demonstrated that its search methodology was reasonable.

The case is No. 13-1135.

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