# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 7, 2018 Decided Aug ust 3, 2018

No. 16

- 5333

G REGORY B ARTKO
, A PPELLANT

v.

U NITED S TATES D EPARTMENT OF J USTICE
, ET AL
., A PPELLEES

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 f or 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: G RIFFITH
, M ILLETT
, and P ILLARD
, Circuit Judges

.

Opinion for the Court filed by M ILLETT
, Circuit Judge

.2

M ILLETT
, 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
mis behavior and discovery improprieties by the U nited S tates Attorney’s Office for the Eastern District of North Carolina

, including by Clay Wheeler, a high

- level prosecutor in Gregory
Bartk o’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 ex traordinary 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 c ase beset by prosecutorial
mis feasance , he filed multiple Freedom of Information Act (“FOIA”) requests with OPR and other relevant agencies seeking to learn the resul ts of investigation s 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 b readth 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) , an d the district court’s decision to deny a fee waiver to Bartko . We also remand with
instruction s 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 other3

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 Bartk o 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 S ecurities and Exchange
Commission caught wind of the scam and began to examine
the Caledonian and Capstone F unds

. The ensuing investigation resulted in a criminal prosecution by the U .S. Attorney’ s Office for the Eastern District of North Carolina

. T he 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 134 2 ; and (iii) the sale of unreg istered 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 o n all counts. I n 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. 201 7) (describing Bartko’s criminal activities)

.

Months after the jury announced its verdict, Bartko
discovered that Wheeler had made multiple, serious4

prosecutorial missteps in the case

. Specifically, Wheeler
fa iled to disclose significant impeachment evidence

— deals that the government had struck with witnesses in advance of their testimony

. S ee Giglio v. United States , 405 U.S. 150

, 155 (1972); see also B rady v. Maryland , 373 U.S. 83 , 87 (1963) . In addition, the prosecution allowed a government
witne ss (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) ; s ee g enerally Bartko , 728 F.3d at 337

– 341.

In light of those developments, Bartko moved for a new
trial claiming violation s of his due process rights under the
F ifth Amendment

. The district court denied Bartko’s motion

. T he Fourth Circuit affirmed on the narrow ground that the

un disclosed evidence and witness testimony was cumulative of the overwhelming untainted evidence, and so the government al
mis steps 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 , whi ch “raise[d] question s regarding whether the errors [we] re fairly characterized as unintentional

. ”
Bartko , 728 F.3d at 341. With respect to Bartko’s case in particular, t he 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

. The5

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 “ i s uninterested i n placating concerns” and “seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode fai th that justice is achievable[,] ” the
court declared that “ [s]omething must be done.” Bartko , 728
F.3d at 342

. “ T o underscore [it s] ser iousness 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 t hat discovery errors in our office are intention al [and] that [A ssistant 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

, ” i d. 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

, ” i d. at 4. Specifically, the U.S. Attorney’s Office announced that, effecti ve 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 wit h 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
Hous ing All iance v. United States Dep’t of Agr iculture , 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.” C itizens for Responsibility & Ethics in Washington (“C REW ”) v. D epartment of Justice , 746 F.3d 1082, 108 8 (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 government al 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 from7

disclosure by [another] statute[,]” id. § 552(b)(3), such as material presented to a grand jury, F ED

. R. C RIM

. 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 appl ies

, the agen cy 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 u nder which the
deletion is made .” 5 U.S.C. § 552 (b).

An agency is perm itted 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

- inte rest 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 Sec urities and Excha nge Commission . His requests sought government documents concerning both his case and any other re cords OPR might8

possess regarding allegations of prosecutorial misconduct by
Wheeler.

Of relevance here, i n January 2013, Bartko submitted a FOIA request t o 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’
Manua l adopted by the D epartment 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 recor ds 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 evi dence 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 of9

attorney misconduct involving violations of any standard imposed by law, applicable rules, professional conduct or
D epartment 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)

. A s 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 i n July 2013. The district court required the agency to search for records regarding Wheeler’s misstep s in Bartko’s case but otherwise accepted OPR’s categorical refusal to respond

. See Bartko v. D epartment 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 th o se withholdings

. See

1 The Glomar response takes its name from th is court’s decision upholding th e 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. D epartment of Justice

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

.10

Bartko v. D epartment of Justice , 128 F. Supp. 3d 62 , 72

– 73 (D.D.C. 2015).

A fter years of back

- and

- forth between the parties and the

court that result ed 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 revie wed
de novo

. Judicial Watch, Inc. v. Rossotti , 326 F.3 d 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 in tervening 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 the ir 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 ne ither 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

r a r e situation when either confirming or denying the very existence of records responsive to a request would “cause harm cognizable under a n FOIA exception.” Roth v. D epartment of
Justice , 642 F.3d 1161, 1178 (D.C. Cir. 2011) (internal citation and quotati on marks omitted) ; see also A merican 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 E xemption 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

purpos es.” Jefferson v. D epartment 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 interest12

in disclosure

. See R oth , 642 F.3d at 1174

. OPR f ell 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 circum stances 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 investigat ion is “the critical
factor

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

To qualify as l aw

- enforcement records , the documents
must arise out of “investigations which focus dir ectly 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

em ployees” 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

t he 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 individual13

or incident and a * * * violation of federal law.” Center for
Nat’l Sec. Studies v. De partment 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) protecti on. 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. D epartment 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 non

law violations by Department attorneys for internal disciplinary purposes.” Id. (emphases added)

. So OPR
bear s the burden of show ing on a case

- by

- case basis that any requested records were actually compiled for law

- enforcement

, rather than employment

- supervision, purposes. See i d.

The government has not come close to show ing that all
records (if there are more ) involving misconduct allegations against Wheeler w ould 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 Nort h 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 i nternal disciplin ary
mat ters

.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 alle ged 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 allegati ons of a ttorney 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 D epartment 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 tha t 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 “near

verbatim recitat ion 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 a n actual law

- enforcement function because it was responsible for reviewing charges that a Justice Department attorney “may be15

in violation of law , regulation s or orders, or of applicable
standards of conduct [

. ] ” 28 C.F.R. § 0.39(a) (2001). If
OPR’s inves tigation 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 matter s

. Justice Department regulations provide that OPR shall “[r]eceive, review, investigate and refer appropriate allegations of misconduct inv ol ving Department attorneys * * * .” 28 C.F.R. § 0.39a(a)(1) (2006). A bsent from that assignment is any reference to the investigation of criminal wrongdoing or violations of law. That marks a sharp
shift in O PR ’s responsibilities toward the “internal ag ency 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 th at lesson , offering th is 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 law

enforcement 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

pr ivacy , when balanced against the public interest in16

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 Immi gration 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 agains t 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 aga inst 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 lig ht 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 was17

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 d ifferent balanc ing 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) ; A merican 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 additi onal
reason that OPR was wholly unable to establish that there

w ould 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 findin g of a pattern of discovery abuses in the U .S. Attorney ’ s Office for th e 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 ; s ee 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 add ed). 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 preclude s it from satisfying Exemption 6’s heightened requirements. See
C

REW , 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 mater ial.” ); 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 sho wing
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; and19

• 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 jus tify 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 require d
OPR to make an individualized showing that each record was actually compiled for law

- enforcement purposes rather than
internal attorne y supervision. See i d

. at 179

.

OPR’s declaration proved the opposite. OPR explained
that m ost 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 r ecord evidence or
attestations from OPR indicating that they interviewed
witnesses or requested additional documents for revie w.

In addition, a ccording to OPR’s own explanation, even when misconduct is found, all that usually occurs is a finding of poor judgment or int e ntional misconduct . D iscipline 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 e nforcement 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 Allianc e , 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 records21

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 highligh ts 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 th at 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 (emphas e s added)

. So r ight out of the gate

, OPR did not find th at th e Fourth Circuit’s referral was substantial enough to inquire further; OPR did not even think Whee ler’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
mis conduct wei ghs strongly in favor of disclosure.

On the privacy side of the balance, Wheeler’s interest is substantially diminished. First

, the allegations of misconduct22

during the Bartko trial are already a matter of public record, as
is the referral to OPR publi shed 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
D epartment of Justice v. Reporters Comm. for Freedom of the
Press

, 489 U.S. 749, 76 3 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 ha s already largely evaporat ed

. See Kimberlin v. D epartment 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 low er

- level staff attorneys whose records
were at issue in Jefferson and Kimberlin

, AUSA Wheeler was

a supervisory official in the U .S. Attorney’s O ffice. 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 a n increased public interest in how prosecu torial policies and priorities were both set and implemented by Wheeler and the individuals under his
direction. Cf. Stern , 737 F.2d at 9 3

– 9 4 ( noting that a senior
FBI official had less of a privacy interest tha n lower level employees under his supervisio n 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 , 73 7 F.2d at 94. The public has an interest in knowing “ that a government investigation itself is23

comprehensive, that the report of an investigation released publicly is accurate, that any disciplinary measures imposed are adequate, and that those who are ac countable 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 scrutin izing any given individual” is at stake. Young
v. U.S. ex re l . Vuitton et Fils S.A. , 481 U.S. 787, 814 (1987). The public “ must have assurance that those who wou ld 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 a nd disclosure p ractices 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

, ” A merican 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. S ee CREW , 854 F.3d at 679 ( “[ There is a ] we ighty 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 respective24

statutory duties[.]”) (internal citation and quotation mark s 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 withhold ing 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 E xemption 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 co nfirms 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 Exemp tion 7(C) by the F BI, the U.S. Postal Inspection Service, the Securities25

and Exchange Commission, the Executive Office for U.S. Attorneys, and the I nternal 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
E xemption

.

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 plai ntiff 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 co

conspirators, 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 E xemption: (1) FBI special agents26

and support employees ; (2) third parties of investigative interest; (3) non

- FBI federal

- governmental pers onnel; (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,” “witnes ses,” 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. U nited States Customs Serv ice , 71 F.3d 885, 894 (D.C. Cir. 1995 ); see also Martin v. D epartment 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 FB I 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. D ep artment 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. D epartment 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 th ose 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 ’s27

failure to explain how disclosure would serve the public interest, we affirm the withholding of documents on th o se grounds

.

Bartko launches the sam e a ttack against the Postal Inspection Service’s invocation of Exemption 7(C) , arguing
that the public interest mandate s 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 be ing
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 st ake

. S ee 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.”).

B artko 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 d istrict court orders or judgments under review approve of that Office’s application of Exemption 7(C). S ee 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.
D ec. 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 reco rds 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 portion s of the district

court ’s analys e s that he challenges nor the alleged e rrors in the agencies ’ justification s 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 i nterest 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 poss ible argument in the most skeletal way.”) (internal quotation omitted)

. Because Bartko has failed to do so, this Court
affirms the district court’s decision s 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 r emaining 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
i ndividual” 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), whi ch bars disclosure of “a matter occurring before the grand jury.” F ED

. R. C RIM

. P. 6(e) (2)(B)

. Specifically, Rule 6(e) protects information that would “ tend to reveal some secret aspect of the grand jury ’ s i nvestigation, including the identities of witne sses 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 b e investigated by a grand jury. ’ ” Labow v. D epartment 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 FBI30

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 a greed 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 sp ecific 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 g rand 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 disclos ed 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 ligh t 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 chall enges

.

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 r ecord that any such third file exists. The C ommission 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 (n ot three) relevant investigative “matters”
with responsive records. J.A. 540

. As the district court found, there is “no evidence * * * that the [C ommission ’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 exist ence 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 o f Currency , 315 F.3d 311, 314 (D.C. Cir. 2003) (“[I]t is long settled that the32

failure of an agency to turn up on e specific document in its search does not alone render a search inadequate.”)

.

Bartk o also takes issue with the Commission’s reliance on
Ex emption 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 o r supervision of financial institutions.” 5 U.S.C. § 552(b)(8). Bartko argues that the Caledonian and Capstone
F unds that he managed and that were investigated by the Commission are not “financial institutions” regulated by the
Commission , and thus do no t 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
underst andable”) . S o he has forfeited the challenge

. S ee 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 discr etion to reach the question given that both
withheld documents

— a report of an examination of a broker

dealer, pursuant to 15 U.S.C. § 78q(b), and a letter relating to
th at report

— fall within Exemption 8’s heartland.

Lastly, Bartko contends that Exemp tion 5’s attorney work

product 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, th is court stated that33

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 wro ngdoing.

I V

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 a re free

, while the remaining 519 pages c o me at a cost , t he
E xecutive 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 dis closure of the information is [ i ] in the public interest because it is likely to contribute significantly to public understanding of the operations or act ivities 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).

T he 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) (“EUOSA34

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 “non

conclusory terms” that the disclosed records would contribute to public understanding of the government’s activities.
National Sec. Counselors , 848 F.3d at 473

. Meas uring t h e 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. H e explained in some detail how the requested records would contribute to public understanding. T he information , he reasoned, was needed to “follow

- up on the government’s actions and/or inaction” in light of the Fourt h Circuit’s spotlight on the “serious discovery abuses by federal prosecutors in [ the
E astern D istrict of N orth C arolina ].” J.A. 678. In that sense, d isclosure was “likely to contribute significantly to the public’s understanding of how federal prosecuto rs 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 uni quely 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 and35

improprieties of federal prosecutors” can hav e on individual
citizens. J.A. 678. Indeed, he identified three public service
websites with which he had already shared information and
attach ed 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 acknowledge d 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 hab eas 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

. B eyond 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 matter s 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 mis steps and the U.S. Attorney’s
Office’s recognition that errors had been made and changes
would be implemented . Dis closure will reveal what i s yet unknown

— how the government handled the misconduct allegations internally and how it responded to the significant36

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 qualifie d for a fee waiver. 4

* * * * *

For th e 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 re garding 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.