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, Bartko fleeced investors out 

of more than a million dollars under the false pretense that their 

investments were fully insured with a guaranteed return. 

Bartko’s luck ran out when the Securities and Exchange 

Commission caught wind of the scam and began to examine

the Caledonian and Capstone Funds. The ensuing 

investigation resulted in a criminal prosecution by the U.S.

Attorney’s Office for the Eastern District of North Carolina. 

The then-Chief of the Economic Crimes Section, Assistant 

U.S. Attorney Clay Wheeler, prosecuted Bartko for (i) 

conspiracy to commit mail fraud and to engage in unlawful 

monetary transactions in violation of 18 U.S.C. § 371; (ii) mail 

fraud in violation of 18 U.S.C. §§ 1341 and 1342; and (iii) the 

sale of unregistered securities in violation of 15 U.S.C. §§ 77e,

77x, and 18 U.S.C. § 2. After a thirteen-day trial, a jury 

convicted Bartko on all counts. In 2010, Bartko was 

sentenced to 272 months of imprisonment. See Bartko, 728 

F.3d at 331, 334; see also Gregory Bartko v. SEC, 845 F.3d 

1217, 1221 (D.C. Cir. 2017) (describing Bartko’s criminal 

activities).

Months after the jury announced its verdict, Bartko 

discovered that Wheeler had made multiple, serious
4

prosecutorial missteps in the case. Specifically, Wheeler 

failed to disclose significant impeachment evidence—deals 

that the government had struck with witnesses in advance of 

their testimony. See Giglio v. United States, 405 U.S. 150, 

155 (1972); see also Brady v. Maryland, 373 U.S. 83, 87

(1963). In addition, the prosecution allowed a government 

witness (Bartko’s co-conspirator) to testify falsely that he had 

not received any inducement from the government in exchange 

for his testimony, even though the government actually had 

made promises to him. See Napue v. Illinois, 360 U.S. 264, 

270 (1959); see generally Bartko, 728 F.3d at 337–341.

In light of those developments, Bartko moved for a new 

trial claiming violations of his due process rights under the 

Fifth Amendment. The district court denied Bartko’s motion. 

The Fourth Circuit affirmed on the narrow ground that the 

undisclosed evidence and witness testimony was cumulative of 

the overwhelming untainted evidence, and so the governmental

missteps would not have affected the final outcome of the trial. 

See Bartko, 728 F.3d at 331–332, 337. 

But the court of appeals did not end its decision there. 

Pointing to a slew of disturbing recent cases, the court

specifically noted the “frequency of [discovery] ‘flubs’

committed” by the U.S. Attorney’s Office for the Eastern 

District of North Carolina, which “raise[d] questions regarding 

whether the errors [we]re fairly characterized as unintentional.” 

Bartko, 728 F.3d at 341. With respect to Bartko’s case in 

particular, the court expressed deep skepticism about counsel’s 

“farfetched assertion” when asked about the misbehavior. Id. 

at 342. 

The court also worried that “[r]emedies elude” individual 

defendants because egregious violations “ultimately prove 

immaterial to the verdict.” Bartko, 728 F.3d at 342. The 
5

frequent affirmance of criminal convictions on that basis, the 

court explained, causes the government to believe that it can 

withhold with impunity material that it is constitutionally 

required to disclose. Just because “such practices [may be] 

‘harmless’ as to a specific defendant’s verdict,” the court 

continued, “they are anything but harmless” for “litigants in the 

Eastern District of North Carolina and our justice system at 

large[.]” Id. 

Concluding that the U.S. Attorney’s Office “is 

uninterested in placating concerns” and “seems unfazed by the 

fact that discovery abuses violate constitutional guarantees and 

misrepresentations erode faith that justice is achievable[,]” the 

court declared that “[s]omething must be done.” Bartko, 728 

F.3d at 342. “To underscore [its] seriousness about this 

matter,” the Fourth Circuit ordered the Clerk of Court to “serve 

a copy of [its] opinion upon the Attorney General of the United 

States and the Office of Professional Responsibility[,]” which 

handles allegations of misbehavior by Justice Department 

attorneys. Id.

Faced with that sharp censure, the U.S. Attorney’s Office

responded by petitioning the court for rehearing, specifically 

requesting that the court “reconsider its suggestion that 

discovery errors in our office are intentional [and] that 

[Assistant U.S. Attorney Wheeler] intentionally ignored false 

testimony.” Gov’t’s Pet. for Reh’g 2, Docket No. 12-4298, 

ECF No. 105. In its filing, the U.S. Attorney’s Office 

“admit[ted]” to “some discovery failures on [its] part,” id. at 3, 

and informed the court that it was instituting changes to its 

“[d]iscovery [p]ractices in [r]esponse to the [c]ourt’s 

[c]oncerns,” id. at 4. Specifically, the U.S. Attorney’s Office

announced that, effective August 1, 2013, Assistant U.S. 

Attorneys must:
6

(1) personally review the files of each 

investigative agency involved with the 

investigation (rather than relying upon 

the agency’s response to [the Office’s] 

requests for discoverable material), and

(2) meet with their supervisor to discuss this

review and all potential discovery issues 

in the case.

Id. The U.S. Attorney’s Office also “created new systems, 

protocols, and rules to comply with [its] reformulated 

discovery practices.” Id. at 5. The Fourth Circuit denied the 

U.S. Attorney’s Office’s rehearing petition. 

B

“The FOIA was enacted to ensure public access to a wide 

range of government reports and information.” Rural 

Housing Alliance v. United States Dep’t of Agriculture, 498 

F.2d 73, 76 (D.C. Cir. 1974). It “was designed to pierce the 

veil of administrative secrecy and to open agency action to the 

light of public scrutiny.” Citizens for Responsibility & Ethics 

in Washington (“CREW”) v. Department of Justice, 746 F.3d 

1082, 1088 (D.C. Cir. 2014) (quotation marks omitted). 

While transparency and government accountability are at 

the heart of FOIA’s mandate, Congress exempted certain 

categories of records from disclosure to protect important 

governmental and private interests in confidentiality. As 

relevant here, FOIA allows the government to withhold from 

disclosure information “compiled for law enforcement 

purposes * * * [that] could reasonably be expected to constitute 

an unwarranted invasion of personal privacy,” 5 U.S.C. 

§ 552(b)(7)(C), or that is “specifically exempted from 
7

disclosure by [another] statute[,]” id. § 552(b)(3), such as 

material presented to a grand jury, FED. R. CRIM. P. 6(e). 

FOIA Exemption 6 separately shields “personnel and medical 

files and similar files” when their disclosure “would constitute 

a clearly unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(6). The agency bears the burden of proving that an 

exemption applies. CREW, 746 F.3d at 1088. 

Even when an exemption applies, the agency is obligated 

to disclose “[a]ny reasonably segregable portion of a record” 

after removing the exempt material and must note the “amount 

of information deleted, and the exemption under which the 

deletion is made.” 5 U.S.C. § 552(b). 

An agency is permitted to charge a requester “reasonable” 

document search and duplication fees, 5 U.S.C. 

§ 552(a)(4)(A)(ii)(III), but such fees will be waived or reduced 

if “disclosure of the information is in the public interest,” id. 

§ 552(a)(4)(A)(iii). The public-interest fee waiver requires 

that the released information be “likely to contribute 

significantly to public understanding” of government activities 

and not be “primarily in the commercial interest of the 

requester.” Id.

 

C

Between 2012 and 2013, Bartko submitted FOIA requests 

to OPR, the U.S. Postal Inspection Service, the Internal 

Revenue Service, the Federal Bureau of Investigation, the 

Department of Justice’s Executive Office for U.S. Attorneys, 

the Department of Treasury, and the Securities and Exchange 

Commission. His requests sought government documents 

concerning both his case and any other records OPR might 
8

possess regarding allegations of prosecutorial misconduct by 

Wheeler.

Of relevance here, in January 2013, Bartko submitted a

FOIA request to OPR seeking:

1. Any and all records created by and/or 

received by [OPR] in regard to [AUSA]

Clay C. Wheeler, * * * which relate to or 

concern violations or alleged violations 

by AUSA Wheeler of Section 9.500 et 

seq. of the United States Attorneys’ 

Manual adopted by the Department of 

Justice; or the “Ogden Memorandum” 

* * * or any ethical duties imposed upon 

AUSA Wheeler in his capacity as a 

government prosecutor as set forth in the 

North Carolina Code of Professional 

Conduct * * *.

2. Any and all records in regards to 

complaints or allegations made against 

AUSA Wheeler with regards to 

prosecutorial misconduct before any 

grand jury, during any criminal trial or 

investigation prior to trial, which 

involved the withholding and concealing 

of exculpatory evidence and/or the 

presentation of false or misleading 

evidence during trial.

3. Any and all records maintained by OPR 

concerning AUSA Wheeler’s supervision 

as an employee of the Department of 

Justice, which reflect allegations of 
9

attorney misconduct involving violations 

of any standard imposed by law, 

applicable rules, professional conduct or 

Department of Justice policy.

J.A. 209–210. 

In response, OPR agreed only to release documents 

regarding a matter for which Bartko was the complainant

(seven documents in total). As to everything else, OPR 

categorically refused to even confirm or deny the existence of 

relevant records—a type of answer to a FOIA request known 

as a “Glomar” response. See Phillippi v. CIA, 546 F.2d 1009, 

1013 (D.C. Cir. 1976).1

 

Dissatisfied with OPR’s blanket refusal and the other 

agencies’ responses, Bartko filed suit in the U.S. District Court 

for the District of Columbia in July 2013. The district court 

required the agency to search for records regarding Wheeler’s

missteps in Bartko’s case but otherwise accepted OPR’s 

categorical refusal to respond. See Bartko v. Department of 

Justice, 62 F. Supp. 3d 134, 143–144 (D.D.C. 2014). After 

conducting a narrowly tailored search, OPR invoked a host of 

exemptions to partially or fully withhold documents from 

Bartko. The district court approved those withholdings. See 

 1 The Glomar response takes its name from this court’s decision 

upholding the CIA’s refusal to confirm or deny the existence of 

records about “the Hughes Glomar Explorer, a ship used in a 

classified [CIA] project to raise a sunken Soviet submarine from the 

floor of the Pacific Ocean to recover the missiles, codes, and 

communications equipment onboard for analysis by United States 

military and intelligence experts.” Roth v. Department of Justice, 

642 F.3d 1161, 1171 (D.C. Cir. 2011) (internal citation and quotation 

marks omitted). 
10

Bartko v. Department of Justice, 128 F. Supp. 3d 62, 72–73

(D.D.C. 2015). 

After years of back-and-forth between the parties and the 

court that resulted in a substantial amount of additional 

material being released to Bartko by OPR and the other 

defendant agencies, the district court granted summary 

judgment in favor of the defendants. Bartko appealed pro se, 

and this court appointed an amicus curiae to present arguments 

on his behalf.

2

II

This Court reviews a district court’s grant of summary 

judgment de novo. Clemente v. FBI, 867 F.3d 111, 116, 119 

(D.C. Cir. 2017). Fee waiver denials are likewise reviewed 

de novo. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 

1311 (D.C. Cir. 2003). 

Upon review of the record before us, we reverse the district 

court’s grant of summary judgment in favor of OPR on its 

application of Exemption 7(C) and, in light of intervening 

circuit precedent, we remand the issue of whether the FBI’s 

application of Exemption 3 was properly justified. We also

reverse the district court’s denial of a fee waiver because 

Bartko has successfully shown that the disclosure of the 

requested material would be in the public’s interest. As to 

Bartko’s other challenges to the agencies’ withholdings and the 

scope of their FOIA searches, we affirm. 

 2 The court thanks court-appointed amicus curiae, Sophia M. 

Brill, Deanne E. Maynard, and Brian R. Matsui of Morrison & 

Foerster LLP for their assistance in presenting this case.
11

A

Bartko’s FOIA request to OPR sought any records 

pertaining to alleged misconduct by Wheeler, but the district 

court ruled that OPR need only disclose documents pertaining 

to Bartko’s own case. As to the broader aspect of Bartko’s 

request, the district court sustained OPR’s Glomar response—

OPR’s blanket refusal to neither confirm nor deny the existence 

of other relevant records on the ground that doing so would 

reveal law-enforcement information protected from disclosure 

under Exemption 7(C). That was error.

A Glomar response to a FOIA request is permitted in that 

rare situation when either confirming or denying the very 

existence of records responsive to a request would “cause harm 

cognizable under an FOIA exception.” Roth v. Department of 

Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (internal citation 

and quotation marks omitted); see also American Civil 

Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013) 

(Glomar responses only permitted “in limited circumstances”) 

(citation omitted). The question in this case is whether 

disclosing even “the existence or nonexistence of the requested 

records” is itself information protected by Exemption 7(C). 

Roth, 642 F.3d at 1178 (internal alteration omitted). 

Because Exemption 7(C) shields from disclosure “records 

or information compiled for law enforcement purposes” that 

“could reasonably be expected to constitute an unwarranted 

invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), to 

invoke Glomar, OPR had to make a threshold showing that the 

FOIA request seeks records “compiled for law enforcement 

purposes.” Jefferson v. Department of Justice, 284 F.3d 172, 

176 (D.C. Cir. 2002). OPR also bore the burden of making 

an across-the-board showing that the privacy interest the 

government asserts categorically outweighs any public interest 
12

in disclosure. See Roth, 642 F.3d at 1174. OPR fell short on 

both fronts. 

1

Documents pertaining to any OPR investigation of alleged 

ethics violations by Wheeler do not, on this record, qualify as 

protected “law enforcement records,” 5 U.S.C. § 552(b)(7). 

The law-enforcement-purpose inquiry focuses “on how and 

under what circumstances the requested files were compiled,”

and “whether the files sought relate to anything that can fairly 

be characterized as an enforcement proceeding[.]” Jefferson, 

284 F.3d at 177 (internal citations and quotation marks 

omitted). The purpose of the investigation is “the critical 

factor.” Rural Housing Alliance, 498 F.2d at 82. 

To qualify as law-enforcement records, the documents 

must arise out of “investigations which focus directly on 

specifically alleged illegal acts * * * which could, if proved, 

result in civil or criminal sanctions.” Rural Housing Alliance, 

498 F.2d at 81. Records documenting only “government 

surveillance or oversight of the performance of duties of its 

employees” do not qualify. Id.; see also Stern v. FBI, 737 

F.2d 84, 89 (D.C. Cir. 1984) (Exemption 7 does not shield 

internal agency investigations “in which an agency, acting as 

the employer, simply supervises its own employees.”). Nor is 

the mere possibility of a legal violation sufficient, because 

“[a]ny internal auditing or monitoring conceivably could result 

in disciplinary action, in dismissal, or indeed in criminal 

charges against the employees.” Rural Housing Alliance, 498 

F.2d at 81. 

Instead, an agency must establish “a rational nexus 

between the investigation and one of the agency’s law 

enforcement duties,” and “a connection between an individual 
13

or incident and a * * * violation of federal law.” Center for 

Nat’l Sec. Studies v. Department of Justice, 331 F.3d 918, 926 

(D.C. Cir. 2003) (internal citation and quotation marks 

omitted). Courts generally afford some deference to agencies 

“specializing in law enforcement” that claim their records are 

eligible for Exemption 7(C) protection. Id. (internal 

quotation marks and alteration omitted).

Because OPR does not “specialize[] in law enforcement,” 

its attempt to shield its records under Exemption 7(C) merits 

no deference. Campbell v. Department of Justice, 164 F.3d 

20, 32 (D.C. Cir. 1998). We have previously “decline[d] to 

hold as a matter of law that all OPR records are necessarily law 

enforcement records.” Jefferson, 284 F.3d at 178. That is 

because one of OPR’s primary responsibilities is to “secure 

reports, as distinct from compiling them, that arise as a result 

of internal agency monitoring and review allegations of nonlaw violations by Department attorneys for internal 

disciplinary purposes.” Id. (emphases added). So OPR 

bears the burden of showing on a case-by-case basis that any 

requested records were actually compiled for law-enforcement, 

rather than employment-supervision, purposes. See id.

The government has not come close to showing that all 

records (if there are more) involving misconduct allegations 

against Wheeler would have been compiled for law 

enforcement purposes. Bartko’s FOIA request was broadly 

worded to include a wide variety of actual or alleged violations 

by Wheeler of the U.S. Attorney’s Manual, the North Carolina 

Code of Professional Conduct, and other ethical and legal 

obligations. While violations of some of those standards 

could conceivably result in civil or criminal sanctions, many of 

them would not, and would bear only on internal disciplinary 

matters. 
14

In addition, Bartko’s request was not even limited to 

records resulting from OPR investigations, but included any 

records addressing alleged or actual misconduct by Wheeler. 

See J.A. 209 (“[R]ecords created by and/or received by [OPR] 

* * * which relate to or concern violations or alleged violations 

by AUSA Wheeler[.]”) (emphasis added); J.A. 210 (“Any and 

all records maintained by OPR concerning AUSA Wheeler’s 

supervision as an employee of the Department of Justice, which 

reflect allegations of attorney misconduct[.]”) (emphasis 

added).

In defense of its sweeping Glomar response, OPR offered 

only a bare-bones declaration that “[t]he records requested by 

[Bartko] from OPR consist of complaints or allegations of 

misconduct which, if they exist, would have been compiled as 

part of OPR’s investigations of Department of Justice attorneys 

who are alleged to have committed specific acts of professional 

misconduct which, if proved, could result in civil or criminal 

penalties.” J.A. 207. That is not even in the ballpark. As 

we previously held, OPR “cannot rely on a bare assertion to 

justify invocation of an exemption from disclosure,” especially 

when, as in Bartko’s case, OPR’s responsibilities include 

“receiv[ing] as well as generat[ing] reports that may constitute 

investigatory records compiled ‘in connection with 

government oversight of the performance of duties by its 

employees.’” Jefferson, 284 F.3d at 179 (citation omitted); 

see also CREW, 746 F.3d at 1102 (finding that a “nearverbatim recitation of the statutory standard is inadequate” to 

justify the use of an exemption). 

Demanding specification and tailored explanations from 

OPR has become even more important in the sixteen years 

since Jefferson. At the time of Jefferson, OPR maintained an 

actual law-enforcement function because it was responsible for 

reviewing charges that a Justice Department attorney “may be 
15

in violation of law, regulations or orders, or of applicable 

standards of conduct[.]” 28 C.F.R. § 0.39(a) (2001). If 

OPR’s investigation concluded that the attorney’s conduct 

“appear[ed] to involve a violation of law,” OPR would refer the 

matter to the agency with jurisdiction to investigate and bring 

charges. 28 C.F.R. § 0.39a(d)(1) (2001). 

OPR’s mission today (and during the time period covered 

by Bartko’s FOIA requests) has narrowed to focus primarily on 

internal disciplinary matters. Justice Department regulations 

provide that OPR shall “[r]eceive, review, investigate and refer 

appropriate allegations of misconduct involving Department 

attorneys * * *.” 28 C.F.R. § 0.39a(a)(1) (2006). Absent 

from that assignment is any reference to the investigation of 

criminal wrongdoing or violations of law. That marks a sharp 

shift in OPR’s responsibilities toward the “internal agency 

monitoring” end of the spectrum, where Exemption 7(C) has 

no purchase. 

“[A] Glomar response [i]s inappropriate in the absence of 

an evidentiary record produced by OPR to support a finding 

that all OPR records regarding [an] AUSA * * * are law 

enforcement records.” Jefferson, 284 F.3d at 179. OPR

failed to heed that lesson, offering this court no sufficient basis 

on which to make the threshold Glomar determination that all

records (if there are others) concerning allegations of 

misconduct by Wheeler would have been compiled for lawenforcement purposes. 

2

OPR also bore the burden of explaining why disclosure of 

any records would categorically be “reasonably * * * expected 

to constitute an unwarranted invasion of” Wheeler’s personal 

privacy, when balanced against the public interest in 
16

disclosure. 5 U.S.C. § 552(b)(7)(C). OPR failed that task 

too. 

Much like its vaporous justification for claiming that the 

requested documents constituted law-enforcement records,

OPR just sweepingly asserted that the disclosure of any record 

regarding any allegation of misconduct would be an 

unwarranted invasion of Wheeler’s privacy. OPR ignores

altogether its obligation to specifically identify the privacy 

interest at stake, which can vary based on many factors, 

including frequency, nature, and severity of the allegations. 

Cf. American Immigration Lawyers Association v. Executive 

Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir. 

2016) (holding, with respect to Exemption 6, that the privacy 

interest of an immigration judge varied depending on whether 

the misconduct complaints against her were “substantiated or 

unsubstantiated,” “serious,” “trivial,” or “repeated[],” and 

whether she had “been subjected to some type of discipline or 

ha[d] avoided disciplinary action”).

OPR also made no apparent effort to weigh any privacy 

interest against the countervailing public interest in the 

disclosure of information concerning allegations of 

government attorneys’ misconduct. OPR cannot issue a 

blanket proclamation that a loss of privacy would be 

“unwarranted” without considering whether there is a public 

interest that might well warrant it. 5 U.S.C. § 552(b)(7)(C). 

Instead, it must measure the public interest by “the extent to 

which disclosure [would] advance[] the basic purpose of the 

Freedom of Information Act to open agency action to the light 

of public scrutiny,” and “thereby further the citizens’ right to 

be informed about what their government is up to.” American 

Civil Liberties Union v. Department of Justice, 655 F.3d 1, 6 

(D.C. Cir. 2011) (internal citation and quotation marks 

omitted). To illustrate, an unsubstantiated allegation that was 
17

dismissed as frivolous might implicate a greater privacy 

interest or a reduced public interest, while an in-depth 

investigation that exposed a pattern of abuses across numerous 

cases would trigger a different balancing of interests. See 

Roth, 642 F.3d at 1180–1182 (finding that the public’s 

“compelling” interest in knowing that a man has not been 

wrongly sentenced to death outweighed other suspects’ privacy 

interests in not being “link[ed]” to the killings); cf. American 

Immigration Lawyers, 830 F.3d at 675 (noting that “interests 

on both sides of the * * * balancing test may vary in substantial 

measure” depending on the individual); American Civil 

Liberties Union, 655 F.3d at 7 (holding that, with respect to 

disclosing criminal docket numbers and case names, a 

convicted defendant’s privacy interest “is weaker than [that of]

individuals who have been acquitted or whose cases have been 

dismissed”). 

In short, the Glomar response fails for the additional 

reason that OPR was wholly unable to establish that there 

would be a single answer to every balancing of interests 

involving any Wheeler records. That is a yawning omission 

given the substantial public interest embedded in the Fourth 

Circuit’s finding of a pattern of discovery abuses in the U.S.

Attorney’s Office for the Eastern District of North Carolina, 

and that Office’s admission that a change in practices was 

needed and would promptly be made. See Bartko, 728 F.3d 

at 341–343; Gov’t’s Pet. for Reh’g 2, Docket No. 12-4298; see

also CREW v. Department of Justice, 854 F.3d 675, 683 (D.C. 

Cir. 2017) (“Because the myriad of considerations involved in 

the Exemption 7(C) balance defy rigid compartmentalization, 

per se rules of nondisclosure based upon the type of document 

requested, the type of individual involved; or the type of 

activity inquired into, are generally disfavored.”); see also 

Section II.B, infra.
18

That same reasoning dooms OPR’s blanket invocation of 

Exemption 6, 5 U.S.C. § 552(b)(6), as an alternative ground for 

withholding responsive records. Exemption 6 shields 

“personnel and medical files and similar files” when their 

disclosure “would constitute a clearly unwarranted invasion of 

personal privacy.” 5 U.S.C. § 552(b)(6) (emphasis added). 

Because Exemption 6 requires an even stronger demonstration 

of a privacy interest than Exemption 7(C), an agency’s inability 

to justify withholding the latter often precludes it from 

satisfying Exemption 6’s heightened requirements. See 

CREW, 854 F.3d at 681 (“When information is claimed to be 

exempt from disclosure under both [Exemptions 6 and 7(C)], 

courts focus on Exemption 7(C) because it provides broader 

privacy protection than Exemption 6 and thus establishes a 

lower bar for withholding material.”); see also American Civil 

Liberties Union, 655 F.3d at 6 (same); National Archives and 

Records Admin v. Favish, 541 U.S. 157, 165–166 (2004) 

(comparing the two exemptions). We leave open on remand 

whether OPR can make the required individualized showing 

needed to invoke Exemption 6 for its non-law-enforcement 

records.

B

Bartko next challenges OPR’s decision to withhold 

specific records that relate to the investigation of Wheeler’s 

handling of Bartko’s own case. J.A. 874. Of the 441 pages 

identified by OPR as responsive to Bartko’s request:

• One was released in its entirety;

• Twelve were released in part;

• 102 were withheld entirely;

• Six were referred to the Office of the Inspector General 

for processing and direct response; and
19

• 320 were referred to the Executive Office for United 

States Attorneys for processing and direct response.

OPR asserted Exemptions 5, 6, and 7(C), 5 U.S.C. § 552(b)(5), 

(b)(6) & (b)(7)(C), to withhold the 114 documents in full or in 

part. Of those, eight documents that were withheld in full or 

in part under Exemptions 7(C) and 6 lie at the heart of Bartko’s 

case. 

1

In attempting to shelter its withholding of the Bartko 

investigation records under Exemption 7(C), OPR once again 

dropped the ball. To properly justify its invocation of the 

Exemption, OPR’s affidavit had to offer an explanation that is 

“full and specific enough to afford the FOIA requester a 

meaningful opportunity to contest, and the district court an 

adequate foundation to review, the soundness of the 

withholding.” Jefferson, 284 F.3d at 176 (internal quotation 

marks omitted). For Exemption 7(C), Jefferson required

OPR to make an individualized showing that each record was 

actually compiled for law-enforcement purposes rather than 

internal attorney supervision. See id. at 179. 

OPR’s declaration proved the opposite. OPR explained

that most misconduct referrals are closed immediately “with no 

misconduct findings,” or on the written record without a “full 

investigation, which includes requesting and reviewing 

relevant documents and conducting interviews of witnesses 

and the subject attorney.” J.A. 879. Even when a full 

investigation leads to the conclusion that an attorney has 

engaged in professional misconduct, “those findings could 

result in a referral to the attorney’s state bar or disciplinary 

action by the Department.” J.A. 879. 
20

That description of OPR’s review process reveals just how 

attenuated its “law enforcement” function is. For starters,

most matters do not even result in an investigation, making a 

finding of law-enforcement-triggering misconduct implausible 

in the vast majority of cases. That summary treatment seems 

to have been what was accorded to the Fourth Circuit’s referral 

in Wheeler’s case because there is no record evidence or 

attestations from OPR indicating that they interviewed 

witnesses or requested additional documents for review.

In addition, according to OPR’s own explanation, even 

when misconduct is found, all that usually occurs is a finding 

of poor judgment or intentional misconduct. Discipline is left 

to the department head, and perhaps referral to a state bar that 

would presumably go through its own investigative process

(and compile its own records) to determine whether 

punishment should ensue. 

OPR’s investigation, in other words, is several steps 

removed from the type of “adjudicative or enforcement”

proceeding or civil sanctions that could warrant Exemption 

7(C) protection. Rural Housing Alliance, 498 F.2d at 80. 

That is not nearly enough to trigger Exemption 7(C). In this 

court, there is “no question that an investigation conducted by 

a federal agency for the purpose of determining whether to 

discipline employees for activity which does not constitute a 

violation of law is not for ‘law enforcement purposes’ under 

Exemption 7.” Stern v. FBI, 737 F.2d 84, 90 (D.C. Cir. 1984).

To be sure, enforcement proceedings need not be 

imminent for Exemption 7(C) to apply, but they must be “more 

than ephemeral possibilities.” Rural Housing Alliance, 498 

F.2d at 82 n.48 (emphasis added). Even though almost all of 

its complaints are closed without a full investigation, much less 

an adverse finding, OPR argues that all of its Wheeler records 
21

qualify as law-enforcement records just because of the slight 

chance that an inquiry could lead to an investigation that could 

lead to a misconduct finding that could result in a state bar 

referral that could lead to a bar sanctions hearing. That claim 

does not rise above the ephemeral. 

This case highlights OPR’s exaggerated reliance on 

Exemption 7(C). In August 2014—just days after the Fourth 

Circuit issued its opinion reprimanding the U.S. Attorney’s 

Office for the Eastern District—OPR wrote an initial 

memorandum documenting the court’s referral. In that

memorandum, before any investigation had begun or findings 

had been made, OPR concluded that, “[b]ecause former AUSA 

Wheeler is no longer employed by the Department, and 

because further investigation of AUSA Bragdon is unlikely to 

result in a finding of misconduct, it is questionable whether this 

matter warrants further inquiry.” J.A. 893 (emphases 

added). So right out of the gate, OPR did not find that the 

Fourth Circuit’s referral was substantial enough to inquire 

further; OPR did not even think Wheeler’s actions warranted a 

low-level inquiry. Nor does OPR explain what type of 

investigation it conducted, what violations of law it was 

investigating, or whether there was ever more than a fleeting 

possibility of civil sanctions. That is not an investigation with 

an eye toward law-enforcement proceedings.

2

On top of that, the balance between Wheeler’s interest in 

privacy and the public’s interest in how OPR handled a federal 

appeals court’s concerns about possible prosecutorial

misconduct weighs strongly in favor of disclosure. 

On the privacy side of the balance, Wheeler’s interest is 

substantially diminished. First, the allegations of misconduct 
22

during the Bartko trial are already a matter of public record, as 

is the referral to OPR published in the Fourth Circuit’s 

decision, and the U.S. Attorney’s public announcement that it 

too was referring the allegations of misconduct to OPR. See 

Department of Justice v. Reporters Comm. for Freedom of the 

Press, 489 U.S. 749, 763 n.15 (1989) (“[T]he interests in 

privacy fade when the information involved already appears on 

the public record.”) (quoting Cox Broadcasting Corp. v. Cohn, 

420 U.S. 469, 494–495 (1975)). Any interest Wheeler might 

have had in keeping his name in the free-and-clear has already

largely evaporated. See Kimberlin v. Department of Justice, 

139 F.3d 944, 949 (D.C. Cir. 1998) (“[The AUSA’s] statement 

to the press undoubtedly does diminish his interest in privacy: 

the public already knows who he is, what he was accused of, 

and that he received a relatively mild sanction.”). 

Also, unlike the lower-level staff attorneys whose records 

were at issue in Jefferson and Kimberlin, AUSA Wheeler was 

a supervisory official in the U.S. Attorney’s Office. At the 

time of Bartko’s prosecution and the allegations of 

prosecutorial misconduct, Wheeler was the Chief of the 

Economic Crimes Section in the U.S. Attorney’s Office. That 

supervisory responsibility comes with an increased public 

interest in how prosecutorial policies and priorities were both 

set and implemented by Wheeler and the individuals under his 

direction. Cf. Stern, 737 F.2d at 93–94 (noting that a senior 

FBI official had less of a privacy interest than lower level 

employees under his supervision who might have simply been 

following orders). 

On the other side of the scale, the public interest in 

knowing what OPR did weighs heavily. FOIA, at its core, 

operates on the assumption that “it is for the public to know 

and then to judge.” Stern, 737 F.2d at 94. The public has an 

interest in knowing “that a government investigation itself is 
23

comprehensive, that the report of an investigation released 

publicly is accurate, that any disciplinary measures imposed 

are adequate, and that those who are accountable are dealt with 

in an appropriate manner.” Id. at 92. That is how FOIA

helps “to hold the governors accountable to the governed.” 

Id. 

That interest crescendos when the misfeasance of a federal 

prosecutor with “the power to employ the full machinery of the 

state in scrutinizing any given individual” is at stake. Young 

v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987). 

The public “must have assurance that those who would wield 

this power will be guided solely by their sense of public 

responsibility for the attainment of justice.” Id. 

The significant public interest in this case is corroborated 

by the decision of the U.S. Attorney’s Office to overhaul its 

discovery and disclosure practices in response to the Fourth 

Circuit’s decision. Indeed, the U.S. Attorney’s Office

“admit[ted]” its failures and imposed more stringent discovery 

review and disclosure policies on its attorneys. Gov’t’s Pet. 

for Reh’g 3, Bartko, No. 12-4298 (4th Cir. Sept. 6, 2013), ECF 

No. 105. Such “[m]atters of substantive law enforcement 

policy,” and the events that set them in motion, “are properly 

the subject of public concern,” American Civil Liberties Union, 

655 F.3d at 14 (quoting Reporters Comm., 489 U.S. at 766 

n.18). There is also a corresponding public interest in 

knowing if the government’s remedial measures adequately 

redressed the harm that prompted the policy changes. See 

CREW, 854 F.3d at 679 (“[There is a] weighty public interest

in shining a light on the FBI’s investigation of major political 

corruption and the [Department of Justice]’s ultimate decision

not to prosecute,” which the court explained was “not to find 

out what the [accused] himself was ‘up to’ but rather how the 

FBI and [Department of Justice] carried out their respective 
24

statutory duties[.]”) (internal citation and quotation marks 

omitted).

Finally, because the public interest substantially 

outweighs any residual privacy interest Wheeler might retain 

with respect to his conduct in the Bartko case, OPR’s reliance 

on Exemption 6’s even more demanding standard fails as well. 

See Section II.A.2, supra.

3

While OPR erred in withholding eight records under 

Exemptions 6 and 7(C), the remainder of the documents that 

Bartko seeks concerning the investigation into his prosecution 

were properly withheld under Exemption 5, 5 U.S.C. 

§ 552(b)(5). That Exemption insulates from disclosure 

“inter-agency or intra-agency memorandums or letters which 

would not be available by law to a party other than an agency 

in litigation with the agency.” Id. Exemption 5 is most 

commonly invoked to protect the deliberative-process 

privilege, the attorney work-product privilege, and the 

attorney-client privilege. See Coastal States Gas Corp. v. 

Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). 

Our in camera review confirms the district court’s ruling that 

Exemption 5 was properly applied to protect OPR’s 

deliberative, pre-decisional process and its discussion of 

matters related purely to the pending FOIA litigation. 

C

Bartko also challenges the invocation of Exemption 7(C) 

by the FBI, the U.S. Postal Inspection Service, the Securities 
25

and Exchange Commission, the Executive Office for U.S. 

Attorneys, and the Internal Revenue Service. 

As to the FBI and Postal Inspection Service, the nature of 

their law-enforcement roles, the types of records requested, and

the balance of interests involved together support the claimed 

Exemption. 

As a preliminary matter, unlike OPR’s documents, the 

FBI’s and Postal Inspection Service’s records were compiled 

for law-enforcement purposes as they were collected during an 

investigation that “focus[ed] directly on” Bartko’s 

“specifically alleged” criminal activities. See, e.g., Bartko v. 

Department of Justice, 2015 WL 9272833, at *5 (D.D.C. Dec. 

18, 2015) (“[I]t is undisputed that the records in question were 

created for law-enforcement purposes[:] Plaintiff’s 

investigative main file was compiled by the FBI during its 

criminal investigation of plaintiff and others for the crimes of 

conspiracy to commit mail fraud, the sale of unregistered 

securities and money laundering, and engaging in unlawful 

monetary transactions.”) (internal quotation marks omitted); 

Bartko v. Department of Justice, 167 F. Supp. 3d 55, 67 

(D.D.C. 2016) (“Bartko concedes that the [Postal Inspection 

Service] records he wants were compiled for law-enforcement 

purposes.”). 

Unlike OPR’s, the FBI’s application of Exemption 7(C)

was measured and carefully calibrated to balance the 

competing private and public interests. In response to 

Bartko’s request for records about his purported coconspirators, the FBI processed 1,233 pages, released 1,099 

pages to Bartko in full or in part, and withheld 134 pages. 

Bartko, 2015 WL 9272833, at *1. The FBI identified eight 

categories of names and identifying information that it 

withheld pursuant to the Exemption: (1) FBI special agents 
26

and support employees; (2) third parties of investigative 

interest; (3) non-FBI federal-governmental personnel; (4) third 

parties merely mentioned; (5) recipients of subpoenas; (6) 

third-party victims; (7) third parties who provided information 

to the FBI; and (8) state law-enforcement employees. Id. at 

*5. 

As this Court has held, “third parties,” “witnesses,” and 

“informants” mentioned in investigatory files maintain a 

privacy interest “in keeping secret the fact that they were 

subjects of a law enforcement investigation.” Nation 

Magazine v. United States Customs Service, 71 F.3d 885, 894 

(D.C. Cir. 1995); see also Martin v. Department of Justice, 488 

F.3d 446, 457 (D.C. Cir. 2007) (“We also note that privacy 

interests are particularly difficult to overcome when law 

enforcement information regarding third parties is 

implicated.”). For that reason, the FBI is permitted “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. Department of 

Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (quoting SafeCard 

Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)). 

That privacy protection also extends to law-enforcement 

personnel who “do[] not forgo altogether any privacy claim in 

matters related to official business.” Lesar v. Department of 

Justice, 636 F.2d 472, 487 (D.C. Cir. 1980); see also 

Kimberlin, 139 F.3d at 949. The district court’s in camera

review confirmed the FBI’s precise approach to only redacting 

information implicating those recognized privacy interests, and 

approved its reasonable segregation of all disclosable material. 

Bartko, 2015 WL 9272833, at *7. Given the FBI’s 

individualized justification for each category of withheld 

material, the district court’s in camera review, and Bartko’s 
27

failure to explain how disclosure would serve the public 

interest, we affirm the withholding of documents on those 

grounds.

Bartko launches the same attack against the Postal 

Inspection Service’s invocation of Exemption 7(C), arguing 

that the public interest mandates disclosure in spite of any 

third-party privacy interests. In this particular request, Bartko 

sought records “contained in the files of [the Postal Inspection 

Service] and specifically under [Bartko’s] name and/or 

identifier assigned to [Bartko’s] name,” such as arrest records 

and investigation reports. J.A. 343. As previously 

discussed, third parties retain a privacy interest in not being 

associated with an investigation. And the district court’s 

review of the documents confirmed that the withheld records 

did “not contain any information that appeared to reflect 

prosecutorial or agency misconduct,” Bartko, 167 F. Supp. 3d 

at 70, so the public interest in disclosure cannot overcome the 

privacy interests at stake. See Favish, 541 U.S. at 172 (“[T]he 

citizen must show that the public interest sought to be advanced 

is a significant one * * * [and] must show the information is 

likely to advance that interest. Otherwise, the invasion of 

privacy is unwarranted.”).

Bartko conclusorily asserts that the IRS’s and the 

Commission’s application of Exemption 7(C) was improper,

but he fails to offer any specific arguments as to why.

3

 See 

 3 Bartko also challenges the Executive Office of U.S. 

Attorneys’ invocation of Exemption 7(C), but none of the district 

court orders or judgments under review approve of that Office’s 

application of Exemption 7(C). See generally Bartko v. 

Department of Justice, 2014 WL 12787640 (D.D.C. Sept. 9, 2014); 

Order, Bartko v. Department of Justice, No. 13-cv-1135 (D.D.C. 

Dec. 11, 2014); Bartko v. Department of Justice, 102 F. Supp. 3d 342 

(D.D.C. 2014). Nor does Bartko identify what ruling he contests. 
28

Bartko Br. 9 (“Bartko asserts on appeal that the strength of the 

public’s interest in access to the withheld records outweighs the 

claims asserted by the six Defendant-Agencies that relied upon 

Exemption (b)(7)(C) to withhold records and information.”);

id. at 22 (“The District Court erred in upholding the IRS claim 

of exemption.”); id. at 28 (“[T]he claim of the (b)(7)(C) 

exemption by the [Postal Inspection Service], as well as the 

other Defendant-Agencies (including the 136 pages withheld 

by the IRS), fails and this Court should so hold.”). As to those 

agencies, Bartko neither specifies the portions of the district

court’s analyses that he challenges nor the alleged errors in the 

agencies’ justifications for the claimed exemption. 

As best we can tell, the gist of Bartko’s argument seems to 

be that the public interest involved overrides any potential 

privacy interest at stake. But as Favish held, it is Bartko’s 

burden to show, for each set of records he seeks (which varied 

greatly from agency to agency), that “the public interest sought 

to be advanced is a significant one,” and that “the [requested] 

information is likely to advance that interest.” 541 U.S. at 

172; see Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. 

Cir. 2005) (“It is not enough merely to mention a possible 

argument in the most skeletal way.”) (internal quotation 

omitted). Because Bartko has failed to do so, this Court 

affirms the district court’s decisions regarding the IRS’s and 

the Commission’s invocation of Exemption 7(C). 

 

Therefore, the Court will not address this undeveloped objection. 

Cf. Goos v. National Ass’n of Relators, 997 F.2d 1565, 1572 (D.C. 

Cir. 1993) (refusing to consider a “twice-speculative” claim with an 

“uncertain foundation” because “this court tries not to base its 

decisions on mind reading”). 
29

III

One of Bartko’s remaining objections to the agencies’ 

searches warrants further attention by the district court, while 

the rest are without merit.

A

Bartko seeks the disclosure of a “thumb drive” that “was 

produced in response to a Grand Jury Subpoena to a third party 

individual” and contained “specific documents sought by the 

Grand Jury.” J.A. 952. 

FOIA Exemption 3 allows the government to withhold 

records that are “specifically exempted from disclosure by 

[another] statute[.]” 5 U.S.C. § 552(b)(3). A common 

example of a qualifying Exemption 3 statute is Federal Rule of 

Criminal Procedure 6(e), which bars disclosure of “a matter 

occurring before the grand jury.” FED.R.CRIM. P. 6(e)(2)(B). 

Specifically, Rule 6(e) protects information that would “tend to 

reveal some secret aspect of the grand jury’s investigation, 

including the identities of witnesses or jurors, the substance of 

testimony, the strategy or direction of the investigation, or the 

deliberations or questions of jurors.” Hodge v. FBI, 703 F.3d 

575, 580 (D.C. Cir. 2013) (citation and internal quotation 

marks omitted). Rule 6(e) does not, however, “draw ‘a veil 

of secrecy * * * over all matters occurring in the world that 

happen to be investigated by a grand jury.’” Labow v. 

Department of Justice, 831 F.3d 523, 529 (D.C. Cir. 2016) 

(alteration in original) (citation omitted).

Invoking Exemption 3’s protection of grand jury 

materials, the FBI withheld the thumb drive from disclosure. 

Because the only information contained on the thumb drive 

was obtained in response to a grand jury subpoena, the FBI 
30

asserted that “[a]ny disclosure of the information * * * would 

clearly violate the secrecy of the grand jury proceedings and 

could reveal the inner workings of a federal grand jury[.]” 

J.A. 953.

With commendable due diligence, the district court 

reviewed the records at issue in camera and agreed that 

withholding was proper on the ground that the thumb drive 

“contain[ed] information about the names of recipients of 

federal grand-jury subpoenas; information that identifie[d]

specific records subpoenaed by a federal grand jury; and copies 

of specific records provided to a federal grand jury in response 

to such a subpoena.” Bartko, 2015 WL 9272833, at *4. On 

all points but the last, we agree.

In the time between the district court’s decision and this 

appeal, this court clarified that documents that “would reveal 

to the requester that they had been subpoenaed” by a grand jury 

would be protected, but documents that “would not necessarily 

reveal a connection to a grand jury” would not. Labow, 831 

F.3d at 529. The record before us does not answer whether 

the documents on the thumb drive themselves “would have 

revealed something about the workings of the grand jury had 

they been released with other requested documents,” and thus 

we cannot say that they would have been identifiable as 

materials sought by the grand jury. Id. at 530. 

As recognized by Labow, “it may turn out, in this case, that 

most, or even all, of the material withheld pursuant to 

[Exemption 3] cannot be disclosed without compromising the 

secrecy of a grand jury’s deliberations,” but “[t]he mere fact 

the documents were subpoenaed fails to justify withholding 

under Rule 6(e).” Id. For that reason, we remand to the 

district court for further consideration in light of our 

intervening decision in Labow.
31

B

Bartko next faults the Securities and Exchange 

Commission for conducting an inadequate search and for 

improperly applying Exemptions 5 and 8 to withhold or redact 

records. He fails to persuade on all three challenges.

As to the adequacy of the Commission’s search, Bartko 

argues that it failed to search a supposed “third file” that 

purportedly contained information about the Capstone Fund. 

The problem for Bartko is that there is no discernible evidence

in the record that any such third file exists. The Commission

explained that, in searching for responsive documents, it had 

used all of the names listed in the FOIA request as search 

criteria and searched its Name Recognition Search Index. 

That identified two (not three) relevant investigative “matters” 

with responsive records. J.A. 540. As the district court 

found, there is “no evidence * * * that the [Commission’s] 

Atlanta Regional Office even had a file on Capstone Partners 

during the relevant time period,” and Bartko did not provide an 

“appropriate alternative approach to the search” that might 

uncover what he seeks. Bartko v. Department of Justice, 

2016 WL 4506968, at *6 (D.D.C. Aug. 26, 2016). 

Bartko’s continued speculation that a third file exists is not 

enough to undermine the adequacy of the Commission’s 

search. “Agency affidavits are accorded a presumption of 

good faith, which cannot be rebutted by ‘purely speculative 

claims about the existence and discoverability of other 

documents.’” SafeCard Servs., Inc., 926 F.2d at 1200 

(citation omitted). Nor does the failure of a search to uncover 

a particular sought-after document evidence the search’s 

insufficiency. See Iturralde v. Comptroller of Currency, 315 

F.3d 311, 314 (D.C. Cir. 2003) (“[I]t is long settled that the 
32

failure of an agency to turn up one specific document in its 

search does not alone render a search inadequate.”). 

Bartko also takes issue with the Commission’s reliance on 

Exemption 8 to withhold two documents. Exemption 8 

allows agencies to hold back material that is “contained in or 

related to examination, operating, or condition reports prepared 

by, on behalf of, or for the use of an agency responsible for the 

regulation or supervision of financial institutions.” 5 U.S.C. 

§ 552(b)(8). Bartko argues that the Caledonian and Capstone 

Funds that he managed and that were investigated by the 

Commission are not “financial institutions” regulated by the 

Commission, and thus do not fall within Exemption 8. 

Bartko’s argument fails before it even starts. He did not 

challenge the Commission’s reliance on Exemption 8 in the 

district court. J.A. 583 (acknowledging that the 

Commission’s “withholding of document 36 and 38 is 

understandable”). So he has forfeited the challenge. See 

Chichakli v. Tillerson, 882 F.3d 229, 234 (D.C. Cir. 2018) 

(“But [the appellant] failed to raise this argument below, and 

therefore it is forfeited.”). And there is no reason for us to 

exercise our discretion to reach the question given that both 

withheld documents—a report of an examination of a brokerdealer, pursuant to 15 U.S.C. § 78q(b), and a letter relating to 

that report—fall within Exemption 8’s heartland. 

Lastly, Bartko contends that Exemption 5’s attorney workproduct privilege cannot apply because Commission staff 

“engaged in investigatory misconduct” when working with 

Bartko’s criminal prosecution team. Bartko Br. 43. But the 

case on which Bartko relies, Moody v. IRS, 654 F.2d 795 (D.C. 

Cir. 1981), involved a different situation in which the attorney 

admitted to “unprofessional conduct,” and, in providing 

guidance to the district court on remand, this court stated that
33

only “tainted work product” resulting from that misconduct 

“need be released.” Id. at 800 n.17, 801 n.20. Unlike in 

Moody, the Commission has admitted to no impropriety here, 

Bartko has offered no evidence of misconduct, and there is no 

evidence that the records sought by Bartko were the result of 

any alleged wrongdoing.

IV

Lastly, Bartko challenges the Executive Office for U.S. 

Attorneys’ charge of a fee for processing his FOIA request. 

Citing its policy that the first 101 pages of released records are 

free, while the remaining 519 pages come at a cost, the 

Executive Office required Bartko to pay a $51.90 processing 

fee before releasing the material to him. Bartko is correct: 

he should not have been charged that fee.

When, as here, records are not requested for commercial 

use, an agency may only charge reasonable fees “for document 

search and duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(III). 

And FOIA directs that the fee be waived “if disclosure of the 

information is [i] in the public interest because it is likely to 

contribute significantly to public understanding of the 

operations or activities of the government and [ii] is not 

primarily in the commercial interest of the requester.” Id. 

§ 552(a)(4)(A)(iii). “[F]ee-waiver applications are to be 

‘liberally construed’ in favor of * * * requesters.” National 

Sec. Counselors v. Department of Justice, 848 F.3d 467, 473 

(D.C. Cir. 2017). 

The parties agree in this case that Bartko satisfies the 

second prong because the information sought does not serve 

any personal commercial interest. Bartko v. Department of 

Justice, 102 F. Supp. 2d 342, 350 (D.D.C. 2015) (“EUOSA 
34

concedes that disclosure is not primarily in Bartko’s 

commercial interest[.]”). 

With respect to the first prong, Bartko is entitled to a fee 

waiver if he shows in “reasonably specific” and “nonconclusory terms” that the disclosed records would contribute 

to public understanding of the government’s activities. 

National Sec. Counselors, 848 F.3d at 473. Measuring the 

contribution to public understanding turns upon “the degree to 

which ‘understanding’ of government activities will be 

advanced by seeing the information; and the extent of the 

‘public’ that the information is likely to reach.” Cause of 

Action v. FTC, 799 F.3d 1108, 1116 (D.C. Cir. 2015). “FOIA 

does not require [however] that a requester be able to reach a 

‘wide audience,’” just a “reasonably broad audience of persons 

interested in the subject.” Id.

Bartko’s request satisfies those criteria. He explained in 

some detail how the requested records would contribute to 

public understanding. The information, he reasoned, was

needed to “follow-up on the government’s actions and/or 

inaction” in light of the Fourth Circuit’s spotlight on the

“serious discovery abuses by federal prosecutors in [the 

Eastern District of North Carolina].” J.A. 678. In that 

sense, disclosure was “likely to contribute significantly to the 

public’s understanding of how federal prosecutors endeavor to 

secure convictions by sidestepping important constitutional 

protections for the accused,” and “how the [criminal justice] 

system functions in reality compared to how the system was 

intended to function.” J.A. 678–679. 

Bartko was also uniquely positioned to convey this 

information because his prosecution had already garnered 

“significant media interest,” and he was able to add a personal 

element by describing the damage that the “misconduct and 
35

improprieties of federal prosecutors” can have on individual 

citizens. J.A. 678. Indeed, he identified three public service 

websites with which he had already shared information and

attached an article that had been written about the prosecutorial 

errors in his case. That explanation demonstrated in 

reasonably specific and non-conclusory terms why his FOIA 

request mattered, and how the records in question could shed 

light on matters already identified by the Fourth Circuit as 

important to the integrity of the criminal justice system. 

The district court acknowledged that there were “public 

interest benefits to be gained,” but concluded that “they [we]re 

minimal in comparison to the unavoidably obvious personal 

purpose for which the records [we]re sought”—that is,

bolstering Bartko’s habeas corpus effort. Bartko, 102 

F. Supp. 3d at 351. That was legal error. FOIA states that a 

fee waiver is available as long as disclosure “is not primarily in 

the commercial interest of the requester.” 5 U.S.C. 

§ 552(a)(4)(A)(iii) (emphasis added). No party contends that 

the release of records would be in Bartko’s financial interest. 

Beyond that, it does “no[t] * * * matter[] whether the 

information will also (or even primarily) benefit the requester.” 

Cause of Action, 799 F.3d at 1118 (emphasis added). “Nor 

does it matter whether the requester made the request for the 

purpose of benefiting itself.” Id. All that matters is whether 

these records are likely to significantly contribute to public 

understanding. See id. 

In short, the public interest in the material Bartko seeks is 

substantial given the Fourth Circuit’s disclosure of a troubling 

pattern of prosecutorial missteps and the U.S. Attorney’s 

Office’s recognition that errors had been made and changes 

would be implemented. Disclosure will reveal what is yet 

unknown—how the government handled the misconduct 

allegations internally and how it responded to the significant 
36

concerns expressed by the Fourth Circuit. Bartko, for his 

part, is sharing the information with an interested public. 

Since there is no claim that Bartko has a commercial interest in 

the documents, and the material is in the public’s interest, he 

qualified for a fee waiver.4

* * * * *

For the foregoing reasons, we reverse the district court’s 

award of summary judgment with respect to (i) OPR’s use of 

Exemption 7(C) to justify its Glomar response and other 

withheld records, and (ii) its denial of Bartko’s fee waiver 

request. The court will also remand for the district court to 

reconsider its decision regarding the FBI’s withholding 

pursuant to Exemption 3 and Criminal Rule of Procedure 6.

So ordered.

 4 The court leaves to the district court to determine, if and when 

appropriate, how this decision impacts Bartko’s challenge to the 

Executive Office’s advance search-fee charge for FOIA request 

2014-00486.