Kolbusz v. Federal Bureau of Investigation ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT KOLBUSZ,
Plaintiff,
v.
Civ. Action No. 17-319
(EGS/GMH)
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiff Robert Kolbusz (“Mr. Kolbusz”) brings this action
following a series of requests to the Federal Bureau of
Investigation (“FBI”) and the Executive Office of United States
Attorneys (“EOUSA”) (collectively, “Defendants”) pursuant to the
Privacy Act, see 5 U.S.C. § 552a, and the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552. See generally Compl., ECF No. 1;
Pl.’s Suppl. Compl., ECF No. 3; Pl.’s Second Suppl. Compl., ECF
No. 25. 1 The Court referred the case to Magistrate Judge G.
Michael Harvey for full case management, up to but excluding
1
When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
1
trial pursuant to Local Civil Rule 72.2. See Minute Order (Jan.
10, 2020).
Pending before the Court are Defendants’ Motion for Summary
Judgment, see Defs.’ Mot. for Summ. J., ECF No. 48; and Mr.
Kolbusz’s Cross-Motion for Summary Judgment, see Pl.’s Opp’n
Def.’s Mot. Summ. J., Pl.’s Cross-Mot. for Summ. J., Mot. for
Government to Produce Complete Vaughn Index, ECF Nos. 50 & 51.
On February 17, 2021, Magistrate Judge Harvey issued a Report
and Recommendation (“R. & R.”) recommending that the Court grant
in part and deny in part without prejudice Defendants’ Motion
for Summary Judgment, ECF No. 48; and deny in part and deny in
part without prejudice Mr. Kolbusz’s Cross-Motion for Summary
Judgment, ECF No. 51.
In a separate order, issued on February 17, 2021,
Magistrate Judge Harvey denied Mr. Kolbusz’s Motion for Leave to
File a Fourth Supplemental Complaint. See Order, ECF No. 77.
Mr. Kolbusz raises objections to Magistrate Judge Harvey’s
R. & R and to his February 2021 order. See generally Pl.’s Objs.
Court Order 2/17/2021 (ECF No. 76); R. & R. (“Pl.’s Objs.”), ECF
No. 78.
Upon careful consideration of the R. & R. and the order,
the objections, opposition, and reply thereto, the applicable
law, and the entire record herein, the Court hereby ADOPTS
Magistrate Judge Harvey’s R. & R., see ECF No. 76; GRANTS IN
2
PART and DENIES IN PART WITHOUT PREJUDICE Defendants’ Motion for
Summary Judgment, see ECF No. 48; DENIES IN PART and DENIES IN
PART WITHOUT PREJUDICE Mr. Kolbusz’s Cross-Motion for Summary
Judgment, see ECF Nos. 50 & 51; and OVERRULES Mr. Kolbusz’s
objection to Order, ECF No. 77, see ECF No. 78.
II. Background
A. Factual 2
Mr. Kolbusz has sued the FBI and EOUSA to resolve three
requests he made under FOIA and the Privacy Act: (1) a request
to the FBI in October 2016 (“October 2016 Request”); (2) a
request to EOUSA in February 2017 (“February 2017 Request”); and
(3) a second request to EOUSA in July 2017 (“July 2017
Request”). See generally Compl., ECF No. 1 (October 2016
Request); Pl.’s Suppl. Compl., ECF No. 3 (February 2017
Request); Pl.’s Second Suppl. Compl., ECF No. 25 (July 2017
Request).
1. October 2016 Request
On October 1, 2016, Mr. Kolbusz submitted a FOIA/Privacy
Act request to the FBI. See Defs.’ Statement of Undisputed Facts
as to Which There is No Genuine Issue (“SOMF”), ECF No. 48-1 ¶
3. He sought “all records in the possession of [the FBI]
2 The Court relies on Defendants’ Statement of Undisputed Facts
as to Which There is No Genuine Issue and other supporting
documents. See ECF No. 48-1.
3
concerning specifically . . . any and all FBI 302’s, agents[’]
handwritten notes, emails, letters or other correspondence
containing [his] name.” Id. (quoting Decl. of David M. Hardy
(“Hardy Decl.”), ECF No. 48-2 ¶ 5). The FBI responded on October
17, 2016 to inform him that the information he requested was
located in an investigative file that was exempt from disclosure
pursuant to FOIA Exemption 7(A). Id. ¶ 6 (citing Hardy Decl.,
ECF No. 48-2 ¶ 8; Ex. D, ECF No. 48-3 at 12-16).
The FBI did not provide Mr. Kolbusz with any details
regarding the number of pages in the investigative file or the
number of responsive documents. See Ex. D, ECF No. 48-3 at 12-
16. However, the agency has since represented that it located
2,942 pages of potentially responsive material and 80 CDs with
additional material, see Status Report, ECF No. 18 at 1; and
that only 928 pages were responsive to Mr. Kolbusz’s October
2016 Request, see Status Report, ECF No. 23 at 1; Status Report,
ECF No. 26 at 1.
Mr. Kolbusz administratively appealed the FBI’s decision to
withhold responsive records. See SOMF, ECF No. 48-1 ¶ 7 (citing
Hardy Decl., ECF No. 48-1 ¶ 9; Ex. E, ECF No. 48-3 at 18). The
DOJ Office of Information Policy (“OIP”) denied his appeal on
January 6, 2017. See id. ¶ 10 (citing Hardy Decl., ECF No. 48-1
¶ 12; Ex. H, ECF No. 48-3 at 31-33).
4
Some time after Mr. Kolbusz’s unsuccessful appeal, the FBI
determined that it would no longer withhold all responsive
records in the investigative file because the investigation was
no longer pending. See Hardy Decl., ECF No. 48-1 at 5 n.1. The
agency thereafter made two releases to Mr. Kolbusz. On September
14, 2018, the FBI released 844 pages of records in full or in
part and informed Mr. Kolbusz that it would continue to withhold
certain information pursuant to Privacy Act Exemption (j)(2) and
FOIA Exemptions 5, 6, 7(C), 7(D), and 7(E). See SOMF, ECF No.
48-1 ¶ 14 (citing Hardy Decl., ECF No. 48-1 ¶ 16; Ex. K, ECF No.
48-3 at 39). The FBI also explained that it had referred certain
records to another government agency (“OGA”) for review, as that
information had originated with those OGAs. See id. (citing
Hardy Decl., ECF No. 48-1 ¶ 16). The FBI made its second release
on October 5, 2018. See id. ¶ 15. The agency explained it had
reviewed 11 pages of records with the Department of Labor
(“DOL”) and released 11 pages in full or in part. See id.(citing Hardy Decl., ECF No. 48-1 ¶ 17). It withheld certain
information pursuant to Privacy Act Exemption (j)(2) and FOIA
Exemptions 6 and 7(C). See id. (citing Hardy Decl., ECF No. 48-1
¶ 17; Ex. L, ECF No. 48-3 at 44).
The Department of Health and Human Services (“HHS”) and
EOUSA contacted Mr. Kolbusz directly with their determinations
regarding responsive material referred to those OGAs. See id.5
(citing Hardy Decl., ECF No. 48-1 ¶ 17). On September 21, 2018,
HHS informed Mr. Kolbusz that it would release 2 pages and
withhold the remaining 54 pages in full pursuant to FOIA
Exemptions 5, 6, 7(C), and (7)(F). See Ex. N, ECF No. 48-3 at
79. Later, on October 3, 2018, EOUSA communicated to Mr. Kolbusz
that it would release most of the 11 pages referred to the
agency but would withhold certain information pursuant to FOIA
Exemptions 6 and 7(C). See Decl. of Natasha Hudgins (“Hudgins
Decl.”), ECF No. 48-4 ¶ 18.
The FBI also determined that 20 CDs in the investigative
file potentially contained responsive material and referred
those CDs to EOUSA for further review. See SOMF, ECF No. 48-1 ¶
38 (citing Hudgins Decl., ECF No. 48-4 ¶ 15). EOUSA determined
that 17 CDs did not contain responsive records but could not
access the information in the other 3 CDs. See id. ¶ 39 (citing
Hudgins Decl., ECF No. 48-4 ¶ 16). The agency contacted Mr.
Kolbusz with its determination on August 7, 2019. See id. ¶ 40
(citing Hudgins Decl., ECF No. 48-4 ¶ 17; Ex. C, ECF No. 48-3 at
9-11).
Finally, the FBI released additional pages of reprocessed
material on July 17, 2020. See Second Decl. Michael G. Seidel
(“Seidel Second Decl.”), ECF No. 66-1 at 3, 13. Before this
release, the agency had withheld 13 of these pages in part and 5
in full pursuant to FOIA Exemptions 5, 6, and 7(C). See id. at
6
4. The FBI now released information that it had previously
withheld as work product. See id. at 6.
2. February 2017 Request
On February 8, 2017, Plaintiff requested from the U.S.
Attorney’s Office for the Northern District of Illinois (“USAO-
ILN”) “[c]opies of all contracts with Dr. Edward V. Ross, for
the period 2011 to 2017, copies of all invoices submitted by
Ross for any services provided to the Office of the United
States Attorney or Justice Department, [and] detailed payment
history of all payments to Edward Ross by DOJ or [E]OUSA for the
period 2011 to 2017.” Pl.’s Suppl. Compl., ECF No. 3 at 3. USAO-
ILN forwarded this request to EOUSA, as the latter is
responsible for reviewing FOIA and Privacy Act requests for the
United States Attorney’s offices. See SOMF, ECF No. 48-1 ¶ 30
(citing Hudgins Decl., ECF No. 48-4 ¶ 5); Hudgins Decl., ECF No.
48-4 ¶ 1.
EOUSA did not conduct a search. See generally Hudgins
Decl., ECF No. 48-4. Instead, the agency determined that it
could deny this request because Mr. Kolbusz sought the records
of a third party—Dr. Ross—which are protected under the Privacy
Act. See SOMF, ECF No. 48-1 ¶ 32. EOUSA notified Mr. Kolbusz of
its determination on February 21, 2017, explaining that these
records could not be released absent the third party’s “express
authorization and consent,” proof of death, “or a clear
7
demonstration that the public benefit would result from the
disclosure of the requested records.” Id. (citing Hudgins Decl.,
ECF No. 48-4 ¶ 7).
Mr. Kolbusz did not administratively appeal EOUSA’s
decision. See Hudgins Decl., ECF No. 48-4 ¶ 8.
3. July 2017 Request
Mr. Kolbusz submitted another FOIA/Privacy Act request to
EOUSA on July 27, 2017. See Pl.’s Second Suppl. Compl., ECF No.
25. This time, he requested “[a]ll notes of interview,
memorandums, e-mails, letters, reports, or documents of any
kind, relating to the case United States v. Robert Kolbusz, 12-
CR-782, N.D. IL, Eastern Division, at Chicago, Illinois.” Id. at
1. EOUSA contacted USAO-ILN to search for responsive records
because that office prosecuted Mr. Kolbusz in the referenced
matter. See Second Decl. Natasha Hudgins (“Hudgins Second
Decl.”), ECF No. 66-2 ¶ 12. USAO-ILN conducted a search and
determined that releasing responsive records “would hinder
ongoing proceedings” in his criminal and related civil cases.
Id. ¶ 13.
On May 9, 2018, EOUSA contacted Mr. Kolbusz and erroneously
informed him that USAO-ILN’s search returned no responsive
records. See id. ¶ 14. Later that month, on May 22, 2018, Mr.
Kolbusz administratively appealed EOUSA’s determination. See id.
at 22. OIP denied his appeal, explaining that, although EOUSA
8
had located responsive records, the agency properly withheld
those records pursuant to Privacy Act Exemption (j)(2) and FOIA
Exemption 7(A). See id. ¶ 15.
B. Procedural
On October 3, 2019, Defendants moved for summary judgment.
See Defs.’ Mot. Summ. J., ECF No. 48. Mr. Kolbusz opposed this
motion and filed a cross-motion for summary judgment on December
27, 2019. See Pl.’s Opp’n Def.’s Mot. Summ. J., Pl.’s Cross-Mot.
for Summ. J., Mot. for Government to Produce Complete Vaughn
Index, ECF Nos. 50 & 51. Defendants filed a combined reply in
support of their motion and opposition to Mr. Kolbusz’s motion
on July 31, 2020. See Defs.’ Reply in Supp. Mot. Summ. J. &
Opp’n Pl.’s Cross-Mot. Summ. J., Mot. Compel, & Mot. Alter or
Amend J., ECF No. 67. Mr. Kolbusz filed his reply brief on
October 31, 2020. See Pl.’s (Kolbusz) Reply Defs.’ Reply Mots.
For: Supp. Mot. Summ. J. & Opp’n Pl.’s Cross-Mot. Summ. J., Mot.
Compel, & Mot. Alter or Amend J., ECF No. 71.
On February 17, 2021, Magistrate Judge Harvey issued his R.
& R. recommending that the Court grant in part and deny in part
without prejudice Defendants’ Motion for Summary Judgment, ECF
No. 48; and deny in part and deny in part without prejudice Mr.
Kolbusz’s Cross-Motion for Summary Judgment, ECF No. 51.
Mr. Kolbusz also filed a Motion for Leave to File a Fourth
Supplemental Complaint. See Pl.’s Mot. Leave File Fourth Suppl.
9
Compl., ECF No. 72. Defendants opposed this motion. See Defs.’
Opp’n Pl.’s Fourth Mot. Suppl. & Mot. Limited Discovery, ECF No.
74. On February 17, 2021, Magistrate Judge Harvey issued an
order denying Mr. Kolbusz’s Motion for Leave to File a Fourth
Supplemental Complaint. See Order, ECF No. 77.
Mr. Kolbusz raises objections to Magistrate Judge Harvey’s
R. & R and to his February 2021 order. See Pl.’s Objs., ECF No.
78. Defendants filed a brief in opposition on March 19, 2021,
see Defs.’ Opp’n “Pl.’s Objs. Court Order 2/17/2021 (ECF No. 76)
R. & R.” (“Defs.’ Opp’n”), ECF No. 79; and Mr. Kolbusz replied
two days later, see Pl.’s Reply Defs.’ Objs. Court Order
2/17/2021 (ECF No. 76) R. & R. (“Pl.’s Reply”), ECF No. 80.
The motions and objections are now ripe and ready for
adjudication.
III. Legal Standard
A. Objections to a Magistrate Judge’s Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for the objection[s].” LCvR 72.3(b). A district
court “may accept, reject, or modify the recommended
10
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C) (“A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”).
A district court “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). “If, however, the party makes
only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the [R. & R.] only for
clear error.” Houlahan v. Brown, 979 F. Supp. 2d 86, 88 (D.D.C.
2013) (citation and internal quotation marks omitted). “Under
the clearly erroneous standard, the magistrate judge’s decision
is entitled to great deference” and “is clearly erroneous only
if on the entire evidence the court is left with the definite
and firm conviction that a mistake has been committed.” Buie v.
Dist. of Columbia, No. CV 16-1920 (CKK), 2019 WL 4345712, at *3
(D.D.C. Sept. 12, 2019) (internal quotation marks omitted)
(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C.
2009)). The Court reviews Mr. Kolbusz’s objection to the R. & R.
de novo.
B. Motion for Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
11
as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be
discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
A party opposing summary judgment must show that a genuine
factual issue exists by “(A) citing to particular parts of
materials in the record . . . or (B) showing that the materials
cited do not establish the absence . . . of a genuine dispute.”
Fed. R. Civ. P. 56(c). Any factual assertions in the moving
party’s affidavits will be accepted as true unless the opposing
party submits his own affidavits or other documentary evidence
contradicting the assertion. See Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992). However, “the inferences to be drawn from
the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec.
12
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation and internal quotation marks omitted).
C. FOIA
FOIA was enacted to “pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny,” and it favors “full agency disclosure.” Dep’t of the
Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting Rose v.
Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)).
However, pursuant to FOIA’s nine exemptions, an agency may
withhold certain requested information. 5 U.S.C. § 552(b)(1)-
(9). “[B]ecause FOIA establishes a strong presumption in favor
of disclosure, requested material must be disclosed unless it
falls squarely within one of the nine exemptions.” See Burka v.
U.S. Dep't of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir.
1996) (citations omitted).
FOIA cases are usually and appropriately resolved on
motions for summary judgment. Brayton v. Off. of the U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). An agency has the
burden of demonstrating that “each document that falls within
the class requested either has been produced, is unidentifiable,
or is wholly [or partially] exempt from the Act’s inspection
requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)
(citation and internal quotation marks omitted).
13
In reviewing a summary judgment motion in the FOIA context,
the court must conduct a de novo review of the record, see 5
U.S.C. § 552(a)(4)(B); but may rely on agency declarations, see
SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
Agency affidavits or declarations that are “relatively detailed
and non-conclusory” are accorded “a presumption of good faith,
which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” Id. (citation
and internal quotation marks omitted). The Court may award
summary judgment solely on the basis of information provided by
the agency in declarations when the declarations describe “the
documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor
by evidence of agency bad faith.” Mil. Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981) (citation and internal
quotation marks omitted).
D. Objections to a Magistrate Judge’s Order
Pursuant to Federal Rule of Civil Procedure 72(a) and Local
Civil Rule 72.2(b), a party may file written objections to a
magistrate judge’s order ruling on a non-dispositive motion.
Fed. R. Civ. P. 72(a); LCvR 72.2(b); see also LCvR 72.2(a). The
district judge then “must consider timely objections and modify
14
or set aside any part of the [magistrate judge’s] order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a);
see also LCvR 72.2(c). “A court should make such a finding when
the court is left with the definite and firm conviction that a
mistake has been committed.” United States v. Inst. for Coll.
Access & Success, 27 F. Supp. 3d 106, 110 (D.D.C. 2014)
(citations and internal quotation marks omitted).
E. Motion for Leave to Supplement a Complaint
Pursuant to Federal Rule of Civil Procedure 15(d), “the
court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.”
Fed. R. Civ. P. 15(d). Motions to supplement pleadings “are to
be ‘freely granted when doing so will promote the economic and
speedy disposition of the entire controversy between the
parties, will not cause undue delay or trial inconvenience, and
will not prejudice the rights of any of the other parties to the
action.’” Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir. 2006)
(quoting Wright, et al., Federal Practice and Procedure § 1504,
at 186–87).
F. Pro Se Litigants
“[P]ro se litigants are not held to the same standards in
all respects as are lawyers.” Roosevelt Land, LP v. Childress,
No. CIV.A. 05-1292(RWR), 2006 WL 1877014, at *2 (D.D.C. July 5,
15
2006) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). The
pleadings of pro se parties therefore “[are] to be liberally
construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (citation and internal quotation marks omitted). Even
so, “[t]his benefit is not . . . a license to ignore the Federal
Rules of Civil Procedure.” Sturdza v. United Arab Emirates, 658
F. Supp. 2d 135, 137 (D.D.C. 2009) (citing Jarrell v. Tisch, 656
F. Supp. 237, 239 (D.D.C. 1987)). Pro se litigants must comply
with federal and local rules. See Jarrell, 656 F. Supp. at 239;
Roosevelt Land, 2006 WL 1877014, at *2.
IV. Analysis
A. Magistrate Judge Harvey Correctly Determined That The
FBI Appropriately Withheld Information in Its 2020
Release Pursuant to FOIA Exemption 5
Mr. Kolbusz first asks the Court to re-evaluate the portion
of the R. & R. discussing the FBI’s release of reprocessed
material on July 17, 2020. See Pl.’s Objs., ECF No. 78 at 1-2.
He argues that such review is necessary because of Magistrate
Judge Harvey’s confusion about the number of pages the FBI
released in full and in part. See id. (citing R. & R., ECF No.
76 at 8). In their opposition brief, Defendants explain that one
of the FBI’s declarations contains an inadvertent typographical
error. See Defs.’ Opp’n, ECF No. 79 at 7-8. They contend that
this “oversight” is “no reason for the Court to reach a contrary
16
conclusion” about the FBI’s decision to withhold information
from the July 17, 2020 release. See id. at 8.
The Court agrees with Magistrate Judge Harvey’s findings
and recommendations regarding the FBI’s release of 18
reprocessed pages. In the Background section of the R. & R.,
Magistrate Judge Harvey states that “it remains unclear how many
of the pages were released in part and how many were released in
full.” R. & R., ECF No. 76 at 8 (citing ECF No. 66-1 at 3–4,
13). The source of confusion is: twice in the FBI’s supplemental
declaration, the agency states that “it reviewed 18 pages and
was releasing 18 pages in full or in part,” Seidel Second Decl.,
ECF No. 66-1 at 3-4, 13; but elsewhere, the FBI states that it
released 13 pages in part and withheld five pages in full, see
id. at 6 (“The FBI protected information on 13 pages of the
responsive documents with the attorney-client privilege pursuant
to Exemption 5 in coded category (b)(5)-1.”); id. at 8 (“The FBI
protected information on five (5) pages of the responsive
documents with the deliberative process privilege in Exemption
category (b)(5)-2.”). Defendants have now clarified the number
of pages released, and Mr. Kolbusz accepts their explanation for
the initial confusion, as does the Court. See Defs.’ Opp’n, ECF
No. 79 at 7-8; Pl.’s Reply, ECF No. 80 at 1.
Defendants’ error did not otherwise affect the analysis in
the R. & R. Notwithstanding the discrepancies in this
17
declaration, Magistrate Judge Harvey examined the FBI’s claimed
exemptions for all 18 pages. See R. & R., ECF No. 76 at 29-36.
He determined that the FBI appropriately invoked the attorney-
client privilege 3 to withhold information from 13 documents in
part, see id. at 30-33; see Seidel Second Decl., ECF No. 66-1 at
6; and that the FBI appropriately invoked the deliberative
process privilege 4 to withhold five documents in full, see R. &
R., ECF No. 76 at 33-36; see Seidel Second Decl., ECF No. 66-1
at 8. As Defendants point out, see Defs.’ Opp’n, ECF No. 79 at
8; Mr. Kolbusz has not argued that either conclusion is
incorrect, see Pl.’s Objs., ECF No. 78 at 1-2; Pl.’s Reply, ECF
No. 80 at 1.
Further, the Court finds no error with this portion of the
R. & R. The FBI claimed the attorney-client privilege to
withhold portions of 13 documents, which contain emails
discussing the appeal in Mr. Kolbusz’s criminal case and his
Section 2255 petition. See Seidel Second Decl., ECF No. 66-1 at
6-7. In the FOIA context, the attorney-client privilege protects
confidential communications made between agencies and agency
3 FOIA Exemption 5 protects “inter-agency or intra-agency
memorandums or letters that would not be available by law to a
party other than an agency in litigation with the agency” and
thus includes the attorney-client privilege. See 5 U.S.C. §
552(b)(5).
4 FOIA Exemption 5 also protects information subject to the
deliberative process privilege. See 5 U.S.C. § 552(b)(5).
18
lawyers “for the purpose of securing legal advice or services.”
Tax Analysts v. I.R.S., 117 F.3d 607, 618 (D.C. Cir. 1997)
(citing In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984));
Jud. Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d 185,
200 (D.D.C. 2011). The FBI explains in its declaration that the
13 pages of emails contain “discussions between FBI
investigators and DOJ AUSAs in which these government personnel
were developing investigative and prosecutorial strategies” and
“were made in confidence, were not shared with or circulated to
individuals outside the attorney-client relationship, and were
made for the purpose of securing legal assistance or advice in
relation to government legal positions.” Hardy Decl., ECF No.
48-2 at 17. This is sufficient to invoke the attorney-client
privilege. See Reep v. U.S. Dep’t of Just., 302 F. Supp. 3d 174,
185 (D.D.C. 2018), aff’d, No. 18-5132, 2018 WL 6721099 (D.C.
Cir. Dec. 18, 2018).
Turning to the remaining five documents, the FBI invoked
the deliberative process privilege to withhold these documents
in full, as they contain “lists of interview prompts developed
by FBI [Special Agents] in preparation for future interviews of
witnesses in the investigation of [Plaintiff].” See Seidel
Second Decl., ECF No. 66-1 at 8. The deliberative process
privilege protects information that is predecisional and
deliberative. Mapother v. Dep’t of Just., 3 F.3d 1533, 1537
19
(D.C. Cir. 1993). “A communication is predecisional if ‘it was
generated before the adoption of an agency [decision]’ and
deliberative if it ‘reflects the give-and-take of the
consultative process.’” Jud. Watch, Inc. v. U.S. Dep’t of Com.,
375 F. Supp. 3d 93, 99 (D.D.C. 2019) (quoting Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).
The interview prompts in the emails here are predecisional
because they contain proposed questions developed before the
FBI’s interview with Mr. Kolbusz. See Hardy Decl., ECF No. 48-2
at 20; Seidel Second Decl., ECF No. 66-1 at 8–9. The prompts are
also deliberative because they formed “an integral part of the
deliberations to develop a final investigative strategy.” See
Hardy Decl., ECF No. 48-2 at 20; Seidel Second Decl., ECF No.
66-1 at 9. The FBI thus appropriately invoked the deliberative
process privilege. See Techserve All. v. Napolitano, 803 F.
Supp. 2d 16, 27 (D.D.C. 2011).
The Court therefore ADOPTS the R. & R., see ECF No. 76;
grants Defendants’ Motion for Summary Judgment as to the FBI’s
July 2020 release, see ECF No. 48; and denies Mr. Kolbusz’s
Cross-Motion for Summary Judgment on the issue, see ECF No. 51. 5
5 The Court need not address Mr. Kolbusz’s request for another
Vaughn index, see Pl.’s Objs., ECF No. 78 at 2; because there is
no remaining claimed exemption to test, see Schiller v.
N.L.R.B., 964 F.2d 1205, 1209 (D.C. Cir. 1992), abrogated on
other grounds, Milner v. Dep’t of Navy, 562 U.S. 562 (2011).
20
B. Magistrate Judge Harvey Properly Denied Mr. Kolbusz’s
Motion for Leave to Supplement 6 the Complaint
Mr. Kolbusz next objects to Magistrate Judge Harvey’s
denial of his motion for leave to supplement the Complaint to
add a claim regarding his June 2018 FOIA request to EOUSA. See
Order, ECF No. 77 at 2-3; Pl.’s Fourth Suppl. Compl. Denial of
Kolbusz’ FOIA Request for Dr. Ross’ Contracts, ECF No. 72-1. The
parties disagree as to the appropriate standard of review for
this objection. See Pl.’s Reply, ECF No. 80 at 1-2; Defs.’
Opp’n, ECF No. 79 at 6-7, 9. In addition, Mr. Kolbusz raises
four arguments in objection to the ruling: (1) Magistrate Judge
6 The Court clarifies that Mr. Kolbusz’s motion should be
treated as a motion to supplement the Complaint and not as a
motion to amend the Complaint. Here, Mr. Kolbusz seeks to add to
his pleading a FOIA request he filed in June 2018, more than one
year after he filed the original Complaint in this case. See
Pl.’s Mot. Leave File Fourth Suppl. Compl., ECF No. 72 at 1. The
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has previously held that “[t]he addition of [a] new
FOIA request is plainly a supplemental pleading as defined by
Federal Rule of Civil Procedure 15(d), as it ‘sets forth
transactions or occurrences or events which have happened since
the date of the pleading sought to be supplemented.’” Hall, 437
F.3d at 100 (quoting Fed. R. Civ. P. 15(d)) (citing United
States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002)). Although
Mr. Kolbusz’s June 2018 FOIA request is duplicative of his
February 2017 request, compare Pl.’s Fourth Suppl. Compl. Denial
of Kolbusz’ FOIA Request for Dr. Ross’ Contracts, ECF No. 72-1
at 1, and Pl.’s Suppl. Compl., ECF No. 3 at 1-2; it is still an
entirely “distinct transaction,” Aftergood v. C.I.A., 225 F.
Supp. 2d 27, 30-31 (D.D.C. 2002); see also Toensing v. U.S.
Dep’t of Just., 890 F. Supp. 2d 121, 133 (D.D.C. 2012). The
Court therefore considers Mr. Kolbusz’s motion as one for leave
to file a supplemental pleading.
21
Harvey held “pro se Plaintiff to a higher standard than the
Government,” see Pl.’s Objs., ECF No. 78 at 3; (2) the
supplemental complaint would not cause undue delay; (3)
Defendants would not be prejudiced by the filing of a
supplemental complaint, see id. at 3-4; and (4) Mr. Kolbusz is
unduly prejudiced by this denial, see id. at 4. The Court
considers each argument in turn and concludes that Magistrate
Judge Harvey properly denied Mr. Kolbusz’s motion.
1. Standard of Review
Mr. Kolbusz argues that Magistrate Judge Harvey’s denial of
his motion for leave to supplement the Complaint was a
“‘discretional’ decision of the Court” and should be reviewed
for abuse of discretion. See Pl.’s Reply, ECF No. 80 at 1-2
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Defendants
argue that the Court should apply the standard in Local Civil
Rule 72.2(c) to resolve Mr. Kolbusz’s objection. See Defs.’
Opp’n, ECF No. 79 at 9. The Court agrees with Defendants that
Local Civil Rule 72.2(c) governs its consideration of Mr.
Kolbusz’s objection.
Federal and local rules govern review of orders by
magistrate judges. Here, Magistrate Judge Harvey considered and
entered an order ruling on Mr. Kolbusz’s Motion to Supplement
the Complaint, see Order, ECF No. 77 at 2-3; which is a non-
dispositive motion, cf. Pagano v. Frank, 983 F.2d 343, 346 (1st
22
Cir. 1993) (concluding that motion to amend a complaint is a
non-dispositive matter). Where, as here, a party files written
objections to a non-dispositive matter, “[t]he district judge in
the case must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary
to law.” Fed. R. Civ. P. 72(a); LCvR 72.2(c). “A [factual]
finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948); Haughton v. Dist. of Columbia, 161 F. Supp. 3d 100,
102 (D.D.C. 2002) (citing Gypsum when reviewing a magistrate
judge’s non-dispositive order). Meanwhile, “the ‘contrary to
law’ standard ‘permits de novo review of a magistrate judge’s
legal conclusions.’” Republic of Gambia v. Meta Platforms, Inc.,
588 F. Supp. 3d 1, 3 (D.D.C. 2022) (quoting Am. Ctr. for Civ.
Just. v. Ambush, 794 F. Supp. 2d 123, 129 (D.D.C. 2011)). These
are the standards that now govern the Court’s review.
2. Mr. Kolbusz Has Been Held to the Appropriate
Standard
Mr. Kolbusz also contends that Magistrate Judge Harvey held
him “to a higher standard than the Government.” Pl.’s Objs., ECF
No. 78 at 3. He explains that he would have filed this motion
for leave to supplement the Complaint “long ago” if he had known
23
“the case law that a duplicative FOIA request could not cure a
failed administrative remedy.” Id. True, “pro se litigants are
not held to the same standards in all respects as are lawyers.”
Roosevelt Land, 2006 WL 1877014, at *2 (citing Haines, 404 U.S.
at 520). But “[t]his benefit is not . . . a license to ignore
the Federal Rules of Civil Procedure.” Sturdza, 658 F. Supp. 2d
at 137 (citing Jarrell, 656 F. Supp. at 239). It follows that
neither Magistrate Judge Harvey nor the Court has license to
lower the standard for review for Mr. Kolbusz’s motion.
Mr. Kolbusz’s argument does not conclude there. Instead, he
faults Defendants for “schrewd [sic] legal maneuvering”—
specifically, for not filing a motion to dismiss the Complaint
for his failure to exhaust his administrative remedies for his
February 2017 FOIA request. Pl.’s Objs., ECF No. 78 at 3. This
is not the “tactical delay” that Mr. Kolbusz contends has
occurred. Id. The D.C. Circuit treats failure to exhaust
administrative remedies “as a jurisprudential, not a
jurisdictional, bar to judicial review.” Calhoun v. Dep’t of
Just., 693 F. Supp. 2d 89, 91 (D.D.C. 2010) (citing Hidalgo v.
FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003)). Thus, while a
defending agency may properly file a motion to dismiss for
failure to exhaust administrative remedies pursuant to Federal
Rule of Civil Procedure 12(b)(6), see Flaherty v. President of
U.S., 796 F. Supp. 2d 201, 207 (D.D.C. 2011) (citing Jones v.
24
Dep’t of Just., 576 F. Supp. 2d 64, 66 (D.D.C. 2008)), aff’d sub
nom. Flaherty v. I.R.S., 468 F. App’x 8 (D.C. Cir. 2012); most
FOIA cases, including those involving a failure to exhaust
administrative remedies, are resolved on summary judgment, see
Brayton, 641 F.3d at 527. Defendants’ decision to file a motion
for summary judgment, rather than a motion to dismiss, was
appropriate. Cf., e.g., Pinson v. U.S. Dep’t of Just., 145 F.
Supp. 3d 1, 10 (D.D.C. 2015).
3. Magistrate Judge Harvey’s Order is Neither Clearly
Erroneous Nor Contrary to Law
Finally, Mr. Kolbusz raises several points suggesting that
Magistrate Judge Harvey’s order is contrary to law. See Pl.’s
Objs., ECF No. 78 at 3-4. In particular, Mr. Kolbusz objects to
Magistrate Judge Harvey’s conclusion that granting the motion to
supplement the Complaint would cause undue delay and argues that
the balance of prejudice to the parties weighs in favor of
granting the motion. See id.Federal Rule of Civil Procedure 15(d) states that “the
court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.”
Fed. R. Civ. P. 15(d). This standard is a permissive one. Clean
Water Action v. Pruitt, 315 F. Supp. 3d 72, 79 (D.D.C. 2018).
Motions for leave to supplement pleadings “are to be ‘freely
25
granted when doing so will promote the economic and speedy
disposition of the entire controversy between the parties, will
not cause undue delay or trial inconvenience, and will not
prejudice the rights of any of the other parties to the
action.’” Hall, 437 F.3d at 101 (quoting Wright, et al., Federal
Practice and Procedure § 1504, at 186–87).
Mr. Kolbusz claims that granting his motion to supplement
the Complaint would not cause undue delay. See Pl.’s Objs., ECF
No. 78 at 3-4. He reasons that this new supplemental complaint
“involves a single FOIA request that is very limited in scope
and with limited numbers of documents [that] [t]he FOIA officer
has already located and reviewed the documents.” Id. at 4
(citing ECF No. 72-2). This addition, he continues, is minimal
compared to Defendants’ delay in the case and other issues that
remain regarding the July 2017 FOIA request. See id. Defendants
counter that this supplemental complaint would cause undue
delay. See Defs.’ Opp’n, ECF No. 79 at 10. They explain that Mr.
Kolbusz sat on this claim for 1.5 years and waited until the
conclusion of summary judgment briefing to file. See id. (citing
ECF Nos. 3, 21, 31). Magistrate Judge Harvey concluded a
supplemental complaint would cause undue delay for the same
reason. See Order, ECF No. 77 at 3.
The Court agrees with Defendants and Magistrate Judge
Harvey that granting Mr. Kolbusz’s motion would cause undue
26
delay. As Defendants point out, Mr. Kolbusz knew how to
supplement a complaint and has done so previously in this case.
See generally Docket for Civ. Action No. 17-319. He provides “no
reason” for this delay, see James Madison Project v. Dep’t of
Just., 208 F. Supp. 3d 265, 280 (D.D.C. 2016); other than a
desire to “circumvent the effects of summary judgment by
[supplementing] the complaint,” Hoffmann v. United States, 266
F. Supp. 2d 27, 34 (D.D.C. 2003), aff’d, 96 F. App’x 717 (Fed.
Cir. 2004). This reason is insufficient to justify further delay
in the case. Indeed, the D.C. Circuit regularly affirms denial
of such motions when they are filed “more than a year after the
filing of the[] initial complaint and after dispositive motions
ha[ve] been filed and opposed.” Wilderness Soc. v. Griles, 824
F.2d 4, 19 (D.C. Cir. 1987) (affirming denial of motion to amend
a complaint).
Even so, Mr. Kolbusz argues that any delay would not be
“burdensome” or prejudicial to Defendants. Pl.’s Objs., ECF No.
78 at 4. This point ignores the time already expended in this
litigation. See James Madison Project, 208 F. Supp. 3d at 280(“[F]urther delay would prejudice Defendants, who have already
spent considerable time and effort briefing summary judgment on
the issues presented in this case.” (citing Hall, 437 F.3d at
101)).
27
Mr. Kolbusz’s argument that he will be unduly prejudiced by
this denial fares no better. See Pl.’s Objs., ECF No. 78 at 4.
Although the Court credits his statement that filing fees are an
obstacle to raising claims regarding the July 2018 FOIA request
in a new lawsuit, see id.; “the desire to avoid filing fees is
no justification for maintaining a single case as an ongoing
forum for raising a perpetual series of FOIA and Privacy Act
disputes with an agency,” Sai v. Transp. Sec. Admin., 155 F.
Supp. 3d 1, 8 (D.D.C. 2016).
The Court therefore concludes that Magistrate Judge
Harvey’s order denying Mr. Kolbusz’s motion to supplement the
Complaint is neither clearly erroneous nor contrary to law, and
OVERRULES Mr. Kolbusz’s objection, see ECF No. 78.
28
V. Conclusion
For the foregoing reasons, the Court ADOPTS Magistrate
Judge Harvey’s R. & R., see ECF No. 76; GRANTS IN PART and
DENIES IN PART WITHOUT PREJUDICE Defendants’ Motion for Summary
Judgment, see ECF No. 48; DENIES IN PART and DENIES IN PART
WITHOUT PREJUDICE Mr. Kolbusz’s Cross-Motion for Summary
Judgment, see ECF Nos. 50 & 51; and OVERRULES Mr. Kolbusz’s
objection to Order, ECF No. 77, see ECF No. 78.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
February 17, 2023
29