                            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
