Agencies Must Look|Harder For Documents

     WASHINGTON (CN) – A federal judge ordered two government agencies to look harder for documents requested by a convicted white-collar criminal who believes evidence important to his defense was withheld by prosecutors.
     Gregory Bartko, who specialized in securities law in Atlanta and was CEO of Capstone Partners LC, a registered broker-dealer, was sentenced to 23 years in prison following his 2010 conviction on six counts of conspiracy, mail fraud and selling unregistered securities.
     Last year, Bartko, representing himself, sued a number of federal agencies for records under the Freedom of Information Act, or FOIA, that he claimed would show a “pattern of tainted prosecutions” that affected his case.
     Both agencies sought summary judgment in the District of Columbia federal court.
     Upon review, U.S. District Judge James Boasberg said he found “wanting” many of the privacy concerns used by two of the agencies to block Bartko’s requests.
     Boasberg noted the FBI argued that some of the records requested were protected because they related to grand jury proceedings or to ongoing criminal investigations.
     The judge said the Department of Justice’s Office of Professional Responsibility answered with a so-called Glomar response, which he described as “a relatively esoteric FOIA device” that refuses to confirm or deny the existence of requested records.
     When a government agency receives a FOIA request, it must respond by conducting a search for the requested records and then make them available – unless they fall under nine enumerated exemptions, according to Boasberg.
     If a document is withheld, the agency has to explain why – unless confirming or denying the existence of the record would itself reveal protected information. That’s when an agency issues a Glomar response, Boasberg said. The name comes from a Cold War-era covert operation that the CIA wanted to keep under wraps.
     But the judge noted that for a Glomar response to be valid, “the government must show that revealing the very existence of records would ’cause harm cognizable under a FOIA exception.'”
     The response often comes when requested documents could identify government informants, trial witnesses, or the subject of a law enforcement investigation, Boasberg said.
     The Office of Professional Responsibility issued the Glomar response to Bartko’s request for records relating to any investigation it may have undertaken into alleged misconduct by Clay Wheeler, then an assistant U.S. attorney in the Eastern District of North Carolina who prosecuted Bartko.
     The U.S. Attorney’s Eastern District office was slammed last summer for “discovery abuses” by an appellate court that affirmed Bartko’s conviction.
     The U.S. Court of Appeals for the Fourth Circuit criticized the office’s frequent “flubs” in the Bartko trial and in other cases, but said none of the errors claimed by Bartko would have affected his trial’s outcome.
     Boasberg cited the criticism in concluding that the government already had “officially acknowledged the existence of an investigation into Wheeler’s misconduct” in the securities fraud case.
     Wheeler may be interested in keeping such an investigation quiet, the judge said, but that does not justify a Glomar response to Bartko.
     “As a result, Bartko is entitled to a substantive response regarding that information and that information only,” Boasberg said. “If an adequate search turns up no records, that will end the matter. If, however, such records do exist and come up in a search, the government must either disclose them or provide a Vaughn Index supporting its redactions or withholdings.”
     From the FBI, Bartko sought records concerning himself, five companies and four individuals, including three co-conspirators, the judge said. The agency withheld much of the information requested by citing FOIA’s privacy exemptions.
     The judge, though, waved them aside.
     He said that because the FBI “refused even to search for documents” relating to the co-conspirators, citing personal-privacy exemptions, the court could not do its job of weighing their public disclosure against privacy interests.
     “The court will order that the FBI search for records concerning the three co-conspirators and either release them or provide an appropriate Vaughn Index,” Boasberg wrote.
     He said the FBI also must do more than offer “boilerplate” in explaining the other privacy exemptions cited – that the records are part of a law enforcement investigation; that they involve confidential sources; that they would disclose particular enforcement techniques.
     In each instance, Boasberg said too few details were provided by the agency to justify its request for summary judgment.
     The judge also took the FBI to task for its “transparently implausible argument” that documents contained on two CDs and a thumb drive did not have to be disclosed because they were not physical records.
     “No sophistry is necessary here, as Congress, with commendable technological foresight, amended FOIA in 1996 to cover records ‘maintained by an agency in any format, including an electronic format,'” Boasberg wrote.
     In the end, the judge ordered that the Office of Professional Responsibility search for documents relating to any investigation into Wheeler stemming from Bartko’s criminal case.
     He also ordered the FBI to search for documents relating to Bartko’s three co-conspirators and process the records on the CDs and thumb drive.

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