United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 7, 2018 Decided August 3, 2018 No. 16-5333 GREGORY BARTKO, APPELLANT v. UNITED STATES DEPARTMENT OF JUSTICE, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01135) Sophia M. Brill, appointed by the court, argued the cause as amicus curiae in support of appellant. With her on the briefs were Brian M. Matsui and Deanne E. Maynard. Gregory Bartko, pro se, filed the briefs for appellant. Joshua M. Kolsky, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Alessio Evangelista, Principal Assistant U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Before: GRIFFITH, MILLETT, and PILLARD, Circuit Judges. Opinion for the Court filed by MILLETT, Circuit Judge. 2 MILLETT, Circuit Judge: “Whatever it takes, this behavior must stop.” So ordered the United States Court of Appeals for the Fourth Circuit in United States v. Bartko, when it was confronted with “repeat offense[s]” of prosecutorial misbehavior and discovery improprieties by the United States Attorney’s Office for the Eastern District of North Carolina, including by Clay Wheeler, a high-level prosecutor in Gregory Bartko’s case. 728 F.3d 327, 343, 341 (4th Cir. 2013). Concluding that the frequent recurrence of prosecutorial missteps in that office “raise[d] questions regarding whether the errors are fairly characterized as unintentional,” the Fourth Circuit took the extraordinary step of referring the matter to the United States Department of Justice’s Office of Professional Responsibility (“OPR”) for further investigation of the allegations of professional misconduct. Id. at 342–343. After Bartko was convicted in a case beset by prosecutorial misfeasance, he filed multiple Freedom of Information Act (“FOIA”) requests with OPR and other relevant agencies seeking to learn the results of investigations into Wheeler. See 5 U.S.C. § 552 et seq. OPR categorically refused to acknowledge the existence of, let alone disclose, any potentially relevant documents outside of Bartko’s individual case. And even with respect to Wheeler’s conduct in Bartko’s case, OPR held back substantial amounts of material, asserting a sweeping breadth for its claimed exemptions. Because circuit precedent foreclosed OPR’s approach, and because OPR failed to justify multiple withholdings, we reverse the district court’s judgment in favor of OPR with respect to its invocations of Exemption 7(C), and the district court’s decision to deny a fee waiver to Bartko. We also remand with instructions for the district court to reconsider its decision with respect to the FBI’s withholding of records pursuant to Exemption 3 in light of recent circuit precedent. On all other 3 matters, we affirm the district court’s entry of summary judgment in favor of the defendant agencies. I A The events giving rise to this appeal stem from a criminal prosecution in a district not too far from here. Gregory Bartko was an Atlanta-based securities lawyer, investment banker, and broker. In the early 2000s, he created and managed two private equity funds, the Caledonian Fund and the Capstone Fund. Over the next half-decade, ...
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