U.S. Attorney’s Alleged Ethics Violations Must Be Disclosed


The Department of Justice can’t avoid a request for records of alleged ethical violations by a North Carolina assistant U.S. attorney.

The records are related to criminal cases. But that alone doesn’t mean they are law enforcement records exempt from disclosure under the Freedom of Information Act, the U.S. Court of Appeals for the District of Columbia Circuit said Aug. 3.

Assistant U.S. Attorney Clay Wheeler prosecuted Gregory Bartko for securities fraud and in 2010 he was sentenced to 272 months in prison.

After the trial, the judge flagged several instance of potential prosecutorial misconduct in Bartko’s case and in other suits handled by Wheeler. The judge referred the matter to DOJ’s Office of Professional Responsibility.

The Justice Department denied Bartko’s subsequent FOIA request for all of Wheeler’s records, refusing to even acknowledge any records existed outside of those related to Bartko’s case.

The appeals court remanded the case, saying the Department of Justice isn’t entitled to a blanket exemption for law enforcement records.

As for the records from other cases, the court said the Justice Department didn’t show a rational nexus between the case records and DOJ’s law enforcement duties.

The DOJ also can’t sweepingly assert that the disclosure would be an invasion of Wheeler’s privacy, the appeals court said.

Instead, to potentially protect the documents from disclosure, the Justice Department must explain how Wheeler’s privacy interest outweighs the public’s interest in the records, it said.

The Justice Department also erred concerning the documents that relate specifically to Bartko’s case, the court said.

For the law enforcement exemption to apply, the DOJ had to explain how each record fit within the exemption, something the agency didn’t do, the court said.

Judge Patricia A. Millett wrote the opinion. Judges Thomas B. Griffith and Cornelia T.L. Pillard joined her.

Bartko represented himself. The U.S. Attorney’s Office represented the government.

The case is Bartko v. DOJ, 2018 BL 276824, D.C. Cir., No. 16-5333, 8/3/18.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com