James Boasberg. (Photo: Diego M. Radzinschi/NLJ)
A former securities lawyer serving 23 years in jail for fraud won an early victory in his fight to obtain documents from the U.S. Department of Justice and the FBI about his case.
Gregory Bartko was found guilty of fraud and other securities law violations in late 2010. He sent Freedom of Information Act requests to the Justice Department, the FBI and other agencies for information about his case and the prosecutor who put him behind bars, Assistant U.S. Attorney Clay Wheeler. He filed a lawsuit in July 2013 in the federal court in Washington after most of his requests were denied.
In an opinion published on Tuesday, U.S. District Judge James Boasberg addressed responses to Bartko’s requests from two agencies: the FBI and the Justice Department’s Office of Professional Responsibility, which investigates accusations of prosecutorial misconduct. The judge said he found most of the agencies’ arguments in favor of secrecy “wanting.”
Bartko, seeking documents that might support his allegations of prosecutorial misconduct against Wheeler, asked the Office of Professional Responsibility for any records it had about the prosecutor. The agency replied with a “Glomar” response, refusing to confirm or deny the existence of the records Bartko wanted. Even acknowledging that records existed would violate Wheeler’s privacy, the agency argued.
Boasberg said that was an inappropriate response given public confirmation by government sources that Wheeler’s handling of Bartko’s criminal case was referred to the Office of Professional Responsibility for investigation. The agency was ordered to search for those records and turn them over, or else justify withholding them or making redactions. The judge said Bartko wasn’t entitled to know about the existence, or lack thereof, of records about Wheeler related to other cases.
Bartko’s request to the FBI included records about himself and other people associated with his case, including co-conspirators. The FBI turned over some documents but refused to search for certain information, citing privacy concerns, and withheld a number of records.
The judge agreed with the FBI that the agency was justified in withholding documents related to grand jury proceedings. However, the judge said the FBI failed to be specific enough in explaining why it was withholding other records, such as showing how the information would interfere with law enforcement operations or reveal the identity of a confidential source.
The FBI was ordered to turn over many of the documents Bartko wanted or come back with stronger arguments in favor of secrecy.
Boasberg chided the FBI for refusing to turn over records that were on two CDs and another digital storage device. He noted that the federal FOIA law covered records “in any format,” including electronically.
“The Bureau’s rationale seems to be that the electronic media in question are not ‘records’ for FOIA purposes because they are physical items that were presented to prosecutors as evidence,” Boasberg wrote. “Why this reasoning would exclude CDs that hold documents in digital form but not, say, the printer paper that will eventually hold this opinion is beyond the court.”
A spokesman for the U.S. attorney’s office in Washington said the government is reviewing the opinion and would not comment further.
The judge has yet to rule on Bartko’s challenges to denials of requests for documents from other agencies. Bartko is representing himself in the FOIA case. He lost an appeal of his conviction before the U.S. Court of Appeals for the Fourth Circuit last year. The U.S. Supreme Court in January declined to hear his case.
Although the Fourth Circuit upheld the conviction, the court questioned the history of discovery violations by the U.S. Attorney’s Office for the Eastern District of North Carolina. The court ordered the clerk to send a copy of its opinion to Attorney General Eric Holder Jr. and the Justice Department’s Office of Professional Responsibility to “underscore our seriousness about this matter, and to ensure that the problems are addressed.”
“The United States attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable,” Judge Henry Floyd wrote for the panel. “Something must be done.”