Federal Records Won’t Come Cheap to Fraudster

     WASHINGTON (CN) – A white-collar criminal’s claims of indigence and of bad faith by the government do not entitle him to free copies of records, a federal judge ruled.
     Sentenced in 2012 to 23 years in prison for securities fraud, Gregory Bartko started to sue federal agencies shortly thereafter for documents under the Freedom of Information Act, or FOIA, that he claimed would demonstrate prosecutorial misconduct and exonerate him.
     U.S. District Judge James Boasberg noted last week that Bartko has since “inundated” his court in Washington and various government agencies with such a “farrago of incendiary motions and correspondence,” that it has been difficult to keep them all straight.
     Despite that, the Justice Department’s Office of Professional Responsibility and Executive Office of the United States Attorneys identified some 620 pages of documents in response to a 2014 request by Bartko, Boasberg added.
     A mishap during transit from one office to the other led to the belated initial production of 101 pages, and Bartko alleged bad faith when the government failed to release the remaining 519 pages because he had not paid the $51.90 photocopying fee or qualify for a waiver.
     Boasberg found Wednesday, however, that “requiring plaintiff to pay the assessed fees (absent a waiver) – particularly in installments – does not amount to bad faith.” (Parentheses in original.)
     Congress passed FOIA in 1966 to give citizens access to government deliberations. Judicial review can follow if an individual exhausts all administrative appeals after an agency uses any of nine allowed exemptions to reject a request.
     That route carries a “strong presumption in favor of disclosure,” Boasberg noted, quoting precedent, but added that such disclosure often comes with a price tag, as agencies asked to supply documents may charge fees to recover the costs of processing the requests.
     Though a party can seek a waiver of those fees, he “bears the burden of proof,” Boasberg wrote.
     The “public interest,” meaning that it sheds light on how government works without primarily benefitting the “commercial interest of the requester,” justifies some waivers, according to the ruling.
     A commercial interest is not the issue for Bartko, but it also does not serve a public interest to give him the 519 pages for free, the court found.
     Plus Bartko has a personal interest in the records: bolstering his case for exoneration, according to the ruling.
     “While there may be incidental public-interest benefits to be gained, they are minimal in comparison to the unavoidably obvious personal purpose for which the records are sought,” Boasberg wrote.
     In defending the fee waiver on the basis of the bad faith, Bartko had cited the delay in getting the first 100 pages of documents. Boasberg said Wednesday, however, that the several months it took to fulfill the request was not excessive and was easily explained by the records’ misplacement in transit.
     Bartko also saw bad faith in the government’s offer of an installment plan to pay the fee, calling it “excessive in light of his limited resources as an indigent inmate,” according to the ruling.
     “The court rejects this argument,” Boasberg wrote.
     “Plaintiff’s allegations of bad faith, whether viewed singly or in concert, are misguided,” he added.
     Bartko represented himself in the complaint, as he did in a case before Boasberg last year.

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