Bolze v. United States Department of Justice Executive Office for United States Attorneys ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DENNIS ROGER BOLZE, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-2858 (FYP)
)
EXECUTIVE OFFICE FOR UNITED )
STATES ATTORNEYS, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Dennis Roger Bolze, pro se and in forma pauperis, seeks documents seized by
the government in connection with his arrest on criminal charges in 2009; he relies on the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C.
§ 552a. After locating all of the documents requested and producing 4,939 pages of documents,
Defendants now move for summary judgment, ECF No. 30 (Defendants’ Motion). In response,
Plaintiff has filed a combined opposition and cross-motion for summary judgment, ECF No. 32
(Plaintiff’s Motion). After carefully reviewing the papers and the record, the Court determines
that Defendants conducted adequate searches in response to Plaintiff’s requests. Plaintiff has
declined to challenge any withholdings of information under statutory exemptions. Therefore,
the Court will grant Defendants’ motion for summary judgment, and will deny Plaintiff’s cross-
motion for summary judgment. For the reasons explained below, the Court also will deny
Plaintiff’s motion for reimbursement of costs, ECF No. 36.
1
BACKGROUND
Plaintiff Bolze is a federal prisoner at the Coleman Low Federal Correctional Institution,
in Wildwood, Florida. See ECF No. 1 (Complaint) at 1. He is serving a sentence for wire fraud
and money laundering, following his conviction in November 2009. See United States v. Bolze,
No. 3:09-CR-93 (E.D. Tenn. filed Jul. 21, 2009), at ECF Nos. 42, 43 (Plea Hearing &
Agreement).
In this matter, Bolze is suing the United States Department of Justice (“DOJ”), Executive
Office for United States Attorneys (“EOUSA”), and the Federal Bureau of Investigation (“FBI”),
seeking materials related to his criminal case. After unsuccessfully submitting a request for
information that was denied, 1 Bolze resubmitted his request on May 12, 2019, to two
components of the DOJ: (1) the Criminal Division, and (2) the United States Attorney’s Office
for the Eastern District of Tennessee (“USAO-EDTN”). See Compl. at 7; Def. Mot. Ex. 1, ECF
No. 30-3 (Declaration of David M. Hardy), ¶ 6. His two, identical requests relied on the FOIA
and the PA, and sought the following records:
ALL “paper documents” seized during the arrest of Dennis Roger Bolze on
or about March 12, 2009 at 1323 Torbert Lane located in Jersey Shore,
Pennsylvania. The arrest followed an investigation (#1000223344) and the
filing of a criminal complaint in the United States District Court for the
Eastern District of Tennessee on March 3, 2009[.]
See Hardy Decl., ¶ 6; Comp. Appx. at 016, 022–023. 2
1
Bolze initially requested these materials from the Office of the Attorney General (“OAG”) FOIA/PA
Compliance Division, the DOJ Criminal Division, and the United States Attorney’s Office for the Eastern District of
Tennessee. See Compl. at 1, 6, 7, 11; ECF No. 1-1 (Complaint Appendix), at 037–039. The first request was dated
April 20, 2017. See Compl. at 6; Compl. Appx. at 001–006. DOJ responded on May 3, 2017, returning the request
and indicating that it was unable to process it because (1) Bolze had not satisfied certain PA requirements, and (2) it
was sent to the wrong DOJ components. See Compl. at 6; Compl. Appx. at 008–015.
2
Within the requests, Bolze further defined “paper documents” as
2
I. FBI (Request No. 1380477-000)
On July 20, 2017, the Criminal Division acknowledged receipt of Bolze’s request. See
Compl. at 10; Compl. Appx. at 037. The Criminal Division, however, indicated that the records
sought were maintained by other components of the DOJ, and routed the request to the FBI for
processing. See Compl. at 11; Compl. Appx. at 037–039. On July 26, 2017, the FBI
acknowledged the request and assigned it Request No. 1380477-000. See Hardy Decl., ¶ 8;
Hardy Ex. B.
On October 4, 2017, the FBI acknowledged its possession of 2,303 pages of potentially
responsive records and afforded Bolze an opportunity to narrow the scope of the request. See
Hardy Decl., ¶ 9; Hardy Ex. C. On October 5, 2017, Bolze responded to the FBI with a certified
letter, documenting his concern about the pace of the FBI’s processing of his request. See Hardy
Decl., ¶ 10; Hardy Ex. D. On October 12, 2017, Bolze sent another letter attesting to his
willingness to pay processing fees up to $125.00, requesting paper format, and narrowing the
(A). ALL correcspondences [sic] and/or letters including any envelopes with the registered
mailings receipts, certified mailing receipts attached and return receipts cards, any
overnight mailing recipts [sic]; and
(B). In addition, ALL notes (whether hand-written or types), faxes and/or emails, and
directives, opinions, orders, and/or reports (by whatever name they may be called). Any
complaints or engagement letters, forms, and/or petitions. Any correcspondences [sic]
between any law firms and Dennis R. Baize, Centurion Asset. Management, and/or
Advanced Trading Services. Any correspondences or inquiries from and to any
government agencies either Federal or State. Any correcspondences [sic] or inquiries from
and to any government agencies and Michael Potter, a resident agent of Centurion Asset
Management and/or Advanced Trading Services.
(C). Finally, ALL "paper documents" from any banking transactions for Advanced Trading
Services, Inc. ("A TS") and Centurion Asset Management, Inc. ("CAM") including their
monthly banking statement and any enclosures including canceled checks (both front and
back)[.]
See Hardy Decl., ¶ 7; Comp. Appx. at 016–017.
3
scope of his request. See Compl. Appx. at 051–054; Hardy Decl., ¶ 11; Hardy Ex. E. More
specifically, he indicated that he still sought copies of all bank statements for Centurion Asset
Management but no longer sought copies of any canceled checks. Id.
On November 22, 2017, Bolze appealed the FBI’s lack of timely response. See Hardy
Decl., ¶ 12; Hardy Ex. F. On December 6, 2017, the Office of Information Policy (“OIP”)
acknowledged receipt of the appeal. 3 See Hardy Decl., ¶ 13; Hardy Ex. G. Bolze then
filed the instant lawsuit on December 28, 2017.
The FBI conducted a search that was successful in locating the requested material. See
Hardy Decl., ¶ 56 (“[T]he FBI located the material it seized during Plaintiff’s arrest on March
12, 2009.”). On February 7, 2018, the FBI sent a letter advising Bolze that it had located
approximately 6,003 pages of potentially responsive records. See Hardy Decl., ¶ 15; Hardy Ex.
H; ECF No. 11-1 (Plaintiff’s Supplement to Complaint) at Ex. A. Bolze did not understand why
the number of potentially responsive pages had increased nearly three-fold, see Compl. Supp. at
2–3, particularly after he had attempted to narrow the search parameters, see Compl. Appx. at
051–054. It appears that the FBI failed to acknowledge or respond to his prior attempt to narrow
the scope of the search. On February 14, 2018, Bolze sent a letter memorializing his concerns.
See Hardy Decl., ¶ 16; Hardy Ex. I.
Beginning in July 2018, the FBI produced records to Bolze monthly, in sets of
approximately 500 pages per month. See Hardy Decl., ¶¶ 21–37. To allow maximum
disclosure, the records were processed only under FOIA and not pursuant to the PA, see Hardy
3
The OIP assigned the appeal No. DOJ-AP-2018-001316. See Hardy Decl., ¶ 13. On April 5, 2018, OIP
responded with an update regarding Bolze’s appeal. See Hardy Decl., ¶ 20; Hardy Ex. M. OIP advised that (1) his
request was currently being actively processed by the FBI, and (2) there could be no action for appellate
consideration because the agency had not yet rendered any adverse determination. Id.
4
Decl., ¶ 62, 4 and all redactions and withholdings were made pursuant to FOIA Exemptions 6 and
7(C). See id., ¶ 75; 5 U.S.C. § 552(b)(6); 5 U.S.C. § 552(b)(7)(C). 5 In total, the FBI processed
5,940 responsive pages. See Hardy Decl., ¶¶ 5, 41, 78. Of these pages, 2,839 were released in
full; 2,100 were released in part; and 1,001 were withheld in full. Id., ¶ 5. Of the 4,939 pages
released in full or in part, Bolze claims that 2,700 pages were non-responsive, see Pl. Mot. at 15;
but this means that the FBI produced over 2,000 pages that were concededly responsive, see
Hardy Decl., ¶¶ 56, 78. In total, the FBI made 14 releases of information to Bolze, between July
2, 2018, and September 11, 2019. See id., ¶¶ 21–37. On November 12, 2018, Bolze requested
that, going forward, the FBI process only a portion of the remaining responsive records, “Bates
Nos. 5,803–6,303.” Id., ¶ 26; Hardy Ex. S. It appears, however, that the FBI did not limit its
search, as requested by Bolze.
II. EOUSA & USAO-EDTN
Bolze resubmitted his request to the USAO-EDTN on May 12, 2017. See Def. Mot. Ex.
2, ECF No. 30-4 (Declaration of Kitty Watson, Dec. 9, 2013), ¶ 3; Watson Ex. A. On May 24,
4
Privacy Act Exemption (j)(2) protects from mandatory disclosure systems of records “maintained by an
agency or component thereof which performs as its principal function any activity pertaining to the enforcement of
criminal law, including police efforts to prevent, control, or reduce crime or to apprehend criminals.” See 5 U.S.C.
§ 552a(j)(2). Agencies may promulgate rules to exempt systems from provisions of the PA. See 5 U.S.C. § 552a(d),
(j), (k). DOJ promulgated regulation 28 C.F.R. § 16.96(a)(1), which exempts FBI law enforcement records
maintained in the CRS. The FBI contends that because the records responsive to Bolze's request were generated in
the furtherance of the FBI's law enforcement duties and are maintained in the CRS, they are exempt under PA
Exemption (j)(2). See Hardy Decl., ¶¶ 59–61. Hardy avers, however, that none of the records was withheld under
the PA. Because the records were also processed under the FOIA to achieve maximum disclosure, “the records
identified as exempt under Privacy Act Exemption (j)(2) were processed and released to Plaintiff subject only to the
FOIA exemptions;” and “[n]one of the information exempt from disclosure under the Privacy Act has been withheld
from Plaintiff unless it was withheld under a FOIA exemption.” Id., ¶ 62. Therefore, PA Exemption (j)(2) is
rendered inapplicable to any of the withholdings.
5
FOIA Exemption 6 exempts “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” See 5 U.S.C. § 552(b)(6). FOIA Exemption 7(C)
exempts “records or information complied for law enforcement purposes . . . to the extend that the production of
such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” See 5 U.S.C. § 552(b)(7)(C).
5
2017, USAO-EDTN acknowledged the request, but indicated that “pursuant to the policies and
practices of the United States Department of Justice[,]” it was required to forward it to the
EOUSA for processing. See Compl. at 7; Compl. Appx. at 028.
On June 9, 2017, with no word from the EOUSA, Bolze resubmitted his request directly
to the EOUSA. See Compl. at 7; Appx. at 029. 6 On June 28, 2017, the EOUSA and the USAO-
EDTN determined that the USAO-EDTN was the appropriate component to conduct the search.
See Watson Decl., ¶ 2. On May 23, 2018, after the search was conducted, a final response letter
was issued, indicating that the agency was not in possession of any of the requested documents.
Id., ¶ 9; Watson Ex. C.
STANDARD OF REVIEW
In a FOIA case, a district court reviews the agency’s decisions de novo and “the burden is
on the agency to sustain its action.” See 5 U.S.C. § 552(a)(4)(B); Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The party seeking summary judgment
“bears the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of . . . [the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
6
On June 29, 2017, the EOUSA acknowledged receipt of the request, and informed Bolze that he could
potentially reduce fees by narrowing it. See Compl. at 8; Compl. Appx. at 031–032. Bolze responded on July 6,
2017, electing to narrow his request. See Compl. at 8; Compl. Appx. at 034–035. He indicated that “[w]hen [he]
was arrested, there [were] a very limited number of documents seized by agents. There were also a number of
monthly bank statements located in the plastic bin . . . [he] only need[ed] the statements and not a copy of any
checks.” See Compl. Appx. at 034; see also id. at 035 (reiterating that he wanted to exclude “all copies of the front
and back of any canceled banking checks.”).
6
quotation marks omitted). To defeat summary judgment, the non-moving party must “designate
specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks
omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable factfinder could find for the non-moving party; a fact is “material” only if it can affect
the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.
Cir. 1987). In the FOIA context, “the sufficiency of the agency’s identification or retrieval
procedure” must be “genuinely in issue” for summary judgment to be inappropriate. Weisberg v.
DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980) (internal quotation marks omitted). In assessing a
defendant’s motion, though, a court must “view the facts and draw reasonable inferences in the
light most favorable to plaintiff.” Scott v. Harris, 550 U.S. 372, 378 (2007).
In FOIA cases, “[s]ummary judgment may be granted on the basis of agency
affidavits[,]” when those affidavits “contain reasonable specificity of detail rather than merely
conclusory statements,” and when “they are not called into question by contradictory evidence in
the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726
F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283,
287 (D.C. Cir. 2006)). Agency declarations are afforded a “presumption of good faith” and can
be rebutted only with evidence that the agency did not act in good faith. Trans Union LLC v.
FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). A plaintiff cannot rebut the good faith presumption
afforded to an agency’s supporting affidavits through “purely speculative claims[.]” SafeCard
7
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
ANALYSIS
I. Defendants’ Searches Were Adequate.
Bolze challenges the adequacy of the FBI’s search. See Pl. Mot. at 3–16. Although he
does not directly challenge the sufficiency of the USAO-EDTN’s search, he appears to question
the good faith of the USAO-EDTN and the EOUSA. See Pl. Reply at 6–9, 14, 18–20. For that
reason, and because Defendants bear the initial burden of showing that their searches were
adequate on a motion for summary judgment, Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir.
1984), the Court will address the searches conducted by both the FBI and the USAO-EDTN.
The adequacy of an agency’s search is measured by a standard of reasonableness under
the attendant circumstances. Truitt v. U.S. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
To satisfy its burden, the agency must show that it “has conducted a search reasonably calculated
to uncover all relevant documents.” Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir.
2010) (quoting Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). It may base its
showing on affidavits or declarations submitted in good faith, see Truitt, 897 F.2d at 542,
provided that these affidavits or declarations explain in reasonable detail the scope and method
of the search, see Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (citations omitted). “In
the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an
agency’s compliance[.]” North v. DOJ, 774 F. Supp. 2d 217, 222 (D.D.C. 2011) (citing Perry v.
Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). Agencies must show that their searches for
responsive records “us[ed] methods which can be reasonably expected to produce the
8
information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see
also Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998). Summary judgment is inappropriate “if
a review of the record raises substantial doubt” about the adequacy of the search. Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citation omitted). When a
defendant has made a prima facie showing of adequacy, the burden shifts to plaintiff to provide
“sufficient evidence to raise ‘substantial doubt’ concerning the adequacy of the [agency's]
search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C. Cir. 2003) (citation
omitted).
For reasons explained below, Bolze has not identified any basis to conclude that the
searches were inadequate; and he has failed to present evidence to overcome the presumption of
good faith afforded to agency declarations. See Broaddrick v. Exec. Office of President, 139 F.
Supp. 2d 55, 65 (D.D.C. 2001) (“[I]t is well settled that conclusory allegations unsupported by
factual data will not create a triable issue of fact.”) (internal quotation marks and citation
omitted).
a. FBI’s Search
As an initial matter, the FBI unequivocally asserts that it located the documents requested
by Bolze — i.e., “the material it seized during Plaintiff’s arrest on March 12, 2009” — by
conducting an “index search” of its Central Records System (“CRS”). See Hardy Decl., ¶ 56.
The CRS is “an extensive system of records consisting of applicant, investigative, intelligence,
personnel, administrative, and general files compiled and maintained by the FBI in the course of
fulfilling its integrated missions and functions.” Id., ¶ 44. Furthermore, “[t]he CRS is indexed in
a manner which meets the FBI's investigative needs and priorities, and allows FBI personnel to
9
reasonably and adequately locate pertinent files in the performance of their law enforcement
duties.” Id., ¶ 46. In light of the FBI’s success in retrieving from the CRS all of the information
that Bolze requested, his arguments challenging the adequacy of the agency’s search are difficult
to support.
1. Sufficiency of the Hardy Declaration
The FBI relies on the affidavit of David M. Hardy, the Section Chief of the
Record/Information Dissemination Section Records Management Division, to justify the
adequacy of its search for records. 7 See Hardy Decl., ¶¶ 1–2. Bolze argues that Hardy’s
declaration is insufficient because it lacks “specificity and clarity.” See Pl. Mot. at 6. Bolze
contends that the declaration should have included information about “‘who’ seized the
documents, ‘who’ secured the documents, ‘who’ physically took possession of the documents,
‘who’ pe[r]formed an investigative review of the documents, ‘who’ prepared summary materials
for the prosecutor, and ‘who’ would have physically stored the documents pending potential
appellate review and possible remand[.]” Id. at 4–5. 8
The additional information requested by Bolze need not be included in a declaration filed
to support the adequacy of a FOIA search. Federal Rule of Civil Procedure 56(c) provides that a
declaration “must be made on personal knowledge, set out facts that would be admissible in
7
Hardy supervises “twelve (12) FBI Headquarters (“FBIHQ”) units and two (2) field operational service
center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for
access to FBI records and information pursuant to the FOIA[.]” See Hardy Decl., ¶ 2.
8
Bolze also seeks information regarding the treatment and storage of exculpatory information that was used
during his prosecution and post-conviction proceedings, and attempts to litigate issues under Brady v. Maryland,
373 U.S. 83 (1963). See Pl. Mot at 4–5; Pl. Reply at 14–16. This type of information is not ordinarily disclosed
through FOIA because the statute is “not a substitute for discovery rules which govern civil and criminal litigation
where ‘different considerations’ are at issue.” Clay v. DOJ, 680 F. Supp. 2d 239, 248 (D.D.C. 2010) (quoting
Stonehill v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009)).
10
evidence, and show that the [declarant] is competent to testify on the matters stated.” See Fed.
R. Civ. P. 56(c)(4). “A declarant in a FOIA case satisfies the personal knowledge requirement in
[Rule 56(c)] if in his declaration, [he] attests to his personal knowledge of the procedures used in
handling [a FOIA] request and his familiarity with the documents in question.” Barnard v. DHS,
531 F. Supp. 2d 131, 138 (D.D.C. 2008) (internal quotation marks and citations omitted).
Further, affiants are not required to personally conduct the search for records, id. (citation
omitted); it is suitable for an affiant to submit information from third parties acquired in the
course of performing official duties. Barnard v. DHS, 598 F. Supp. 2d 1, 19 (D.D.C. 2009)
(collecting cases). The FOIA does not demand that an agency set forth “meticulous
documentation of the details of an epic search for the requested records.” Perry, 684 F.2d at
127. Rather, “affidavits that explain in reasonable detail the scope and method of the search
conducted by the agency will suffice to demonstrate compliance with the obligations imposed by
the FOIA.” Id.Here, the Hardy declaration reflects that the FBI conducted an adequate search. At the
outset, Hardy attests that he is knowledgeable about the search and the processing procedures
that were undertaken; and that his declaration is based upon his personal knowledge and made in
his official capacity. See Hardy Decl., ¶ 2. He then identifies and details the record systems and
locations used for each of the searches, why the relevant information would be in those locations
and systems, the search terms used, and the scope of the searches. See id., ¶¶ 44–58. More
specifically, Hardy states that the FBI conducted a search of the CRS for potentially responsive
11
records by using variations of Bolze’s name. Id., ¶ 56, 56 n.24. 9 The methodology of each
search, and results relating thereto, are thoroughly explained. See id., ¶¶ 54–58. The FBI also
consulted with relevant individuals and other agencies, including the United States Department
of Housing and Urban Development, id., ¶ 37, and the FBI Special Agent who was assigned to
Bolze’s criminal investigation, id., ¶ 57. These coordinated searches yielded 5,940 pages of
responsive records, including the very documents requested by Bolze. Id., ¶¶ 5, 41, 78, 56.
The efforts described by the Hardy Declaration were plainly adequate: They not only
were “reasonably likely” to locate records responsive to Bolze’s request, but they did, in fact,
locate all the relevant records. See Hardy Decl., ¶¶ 46, 56–58. The Court has reviewed the
Declaration and concludes that it sufficiently details the scope and method of the search
conducted by the FBI. See Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir. 2015) (“[A] search is
generally adequate where the agency has sufficiently explained its search process and why the
specified record systems are . . . reasonably likely to contain responsive records.”) (citation
omitted). Bolze is not entitled to the degree of “specificity and clarity” in the Declaration that he
demands, particularly where the information in the Declaration conclusively shows that all
responsive records were located and processed.
2. Number of Search Terms
Bolze next argues that the search was inadequate because the FBI used only “three search
terms.” See Pl. Mot. at 6–11. That argument appears to misunderstand what occurred. The FBI
did not merely use “three search terms;” it instead conducted a three-way phonetic breakdown of
9
A search of the CRS is reasonably calculated to uncover responsive documents. See, e.g., Rosenberg v.
U.S. Dep't of Immgr. & Customs Enf’t, 13 F. Supp. 3d 92, 102–05 (D.D.C. 2014) (concluding that it was proper for
the FBI to consider CRS search results to determine whether “it had searched all locations where potentially
responsive records were reasonably likely to be located”).
12
Bolze’s name variants, which then populated various other search results. See Hardy Decl., ¶ 56,
56 n.24. 10 The FBI also searched by date of birth and social security number, among other data
points. Id., ¶¶ 49, 56. Bolze argues that the FBI should have used more terms as identified in his
definition of “paper documents,” such as “Michael Potter, CAM, or ATS[.]” See Pl. Reply at 18.
He speculates that using these terms would have revealed additional documents. In support of
that claim, he points to what he believes to be a single “missing page” of a letter, specifically,
Bates No. 4557. See id.Bolze’s argument lacks merit because the FBI conducted a search that was responsive to
his request for information: He requested only documents “seized during [his arrest] on or about
March 12, 2009 at 1323 Torbert Lane located in Jersey Shore, Pennsylvania.” See Compl. Appx.
at 001, 016, 022; Hardy Ex. B. The FBI performed a search that located the requested records.
See Hardy Decl. ¶ 56. “Agencies . . . need not expand their searches beyond ‘the four corners of
the request,’ nor are they ‘required to divine a requester's intent.’” Am. Chemistry Council, Inc.
v. HHS., 922 F. Supp. 2d 56, 62 (D.D.C. 2013) (quoting Landmark Legal Found. v. EPA, 272 F.
Supp. 2d 59, 64 (D.D.C. 2003)). Moreover, Bolze’s own search preferences cannot dictate the
reasonableness of the scope of an agency's FOIA search. See Mobley, 806 F.3d at 582 (allowing
10
“The FBI search consisted of a three-way phonetic breakdown of Mr. Bolze’s names.” Id., ¶ 56.
This means that first; the computer automatically broke his name down and searched the
index for different name breakdowns of the name entered: ‘Bolze, Dennis, Roger,’ ‘Bolze,
Dennis, R,’ and ‘Bolze, Dennis.’ Then, the computer broke names down based on their
phonetic characteristics. The computer would return results based on whether or not they
phonetically match a certain percentage of the first and last names searched.
Id., ¶ 56 n.24.
13
a “requester to dictate, through search instructions, the scope of an agency's search” would
undermine “the reasonableness test for search adequacy long adhered to in this circuit”).
3. Scope of Search
Bolze argues that the FBI’s search was inadequate because the FBI committed a
“narrowing error” and inadvertently released some non-responsive records. See Pl. Mot. at 8–15.
But the “narrowing error” appears to be a “widening” one — Bolze contends that the FBI, at
times, failed to limit its search parameters. See id. The apparent argument that Bolze received
too many records is incongruous in the context of a FOIA request; and the claim contradicts his
contention that the search was insufficient. If anything, Bolze’s argument suggests that he
received a more complete view of his investigative file than was warranted by his request. Thus,
even if the FBI mishandled Bolze’s request, the asserted error did not prevent Bolze from
receiving the appropriate documents. See Gold Anti–Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 133 (D.D.C. 2011) (dismissing plaintiff’s
argument that an expanded search was inadequate and holding that “[w]hile these facts could
indicate” that the searches were “overbroad, they do not serve to undermine the adequacy . . .” of
the searches).
4. Bad Faith
Bolze’s final challenge to the FBI’s search is based on broad allegations that the FBI and
the EOUSA, in concert with other agencies, acted in bad faith “to impair or impede [his] access
to its line prosecutor's suppression of Brady material over the past eleven years.” See Pl. Reply
at 14. He believes that overcharges of processing fees, delays, alleged failures in service of
process, and transfer of his requests between different agency units, constitute ongoing collusion.
14
See id. at 8–16; Pl. Mot. at 11–16. While the Court acknowledges that Defendants were
somewhat disorganized in their handling of Bolze’s requests, the record does not support Bolze’s
theory of a decades-long, overarching DOJ conspiracy.
First, “[c]ourts routinely find that delays in responding to FOIA requests are not, in and
of themselves, indicative of agency bad faith.” Skurow v. DHS, 892 F. Supp. 2d 319, 326
(D.D.C. 2012) (one-year delay insufficient for finding agency bad faith; claims of bad faith were
purely speculative); see also Competitive Enter. Inst. v. NASA, 989 F. Supp. 2d 74, 88–89
(D.D.C. 2013) (two-year delay not caused by bad faith); Goland v. CIA, 607 F.2d 339, 355 (D.C.
Cir. 1978) (“[I]n view of the well-publicized problems created by the statute's 10– and 20–day
time limits for processing FOIA requests and appeals, the CIA's delay alone cannot be said to
indicate an absence of good faith.”) (footnote omitted).
Second, any overcharges of processing fees do not indicate bad faith, for the FBI made
efforts to review the charges and refunded the third parties for their overpayment. See Hardy
Decl., ¶¶ 38–42. 11 Finally, there is no basis to question Hardy’s attestation that the FBI simply
made an error in failing to narrow its search after Bolze attempted to amend his request. See id.,
¶ 39. Given the ongoing nature of the search, it is plausible that the FBI accidentally continued
11
With respect to the alleged overcharges of processing fees, the FBI responds as follows:
In his motions, Plaintiff notes his attempt to narrow the scope of his request slightly in his
October 12, 2017 letter. As such, Plaintiff avers the FBI provided approximately 2,032
pages of non-responsive material to Plaintiff. The FBI has researched this issue and
determined that based on Plaintiffs narrowing, it had inadvertently provided non-
responsive material in the second, third, fourth, fifth, tenth, and eleventh interim releases
in this case totaling 1,052 pages. Based on the FBI's analysis, it owed $69.62 for fees
associated with non-responsive material. On October 23, 2019, the FBI submitted refunds
to the two individuals who previously paid on Plaintiff’s behalf via its pay.gov system in
the amount of $34.81 for each person.
See Hardy Decl., ¶ 39 (internal citations omitted).
15
to use the broader parameters of Bolze’s initial request, see Hardy Ex. A, while failing to exclude
documents that became nonresponsive after his October 2017 modification, see Hardy Ex. E.
The Court is unable to find bad faith on this record.
b. USAO-EDTN’s Search
The record also reflects an adequate search by the USAO-EDTN, which was the office
that prosecuted Bolze’s criminal case, No. 3:09-CR-93. See Watson Decl., ¶ 5. Kitty Watson, a
paralegal employed by the USAO-EDTN, personally handled Bolze’s request for information.
Id., ¶ 1. She attests that the USAO-EDTN was the appropriate component to conduct the search,
see id., ¶ 1.
Watson determined that the case file was administratively closed in 2012. Id., ¶ 5. She
personally searched for the available closed files, if any, corresponding to Bolze’s case, No.
3:09-CR-93, and two related appeals. Id. Watson located four Internal Revenue Service (“IRS”)
investigative memoranda. Id., ¶ 5. Those memoranda indicated that any responsive financial
records had been seized by an IRS Special Agent and an FBI Special Agent, both of whom took
possession of the documents. Id. There was no indication that those documents had ever been
part of the USAO-EDTN case file. Id. Watson also consulted with the Assistant U.S. Attorney
(“AUSA”) who was assigned to Bolze’s criminal investigation and prosecution, confirming that
the AUSA was not in possession of any of the requested documents. Id., ¶ 7. Watson attests that
she personally searched every location where responsive materials could possibly be found, but
that she did not locate any such materials. Id., ¶ 8.
16
Aside from Bolze’s arguments alleging a bad faith conspiracy, see Pl. Mot. at 11–16, he
offers nothing to contest the sufficiency of the USAO-EDTN’s search. 12 Although the shuffling
of his request between the EOUSA and the USAO-EDTN may have delayed their response, the
USAO-EDTN ultimately conducted an adequate search and, in fact, determined that the
requested documents were likely in the custody of two other agencies, including the FBI. See
Watson Decl., ¶ 5. As noted, supra, Bolze ultimately received the requested documents from the
FBI. Even assuming, arguendo, that the USAO-EDTN also once possessed the documents, the
FOIA does not impose a duty on agencies to keep their records indefinitely, and a requester is
only entitled to records that an agency has actually retained. Bonfilio v. OSHA, 320 F. Supp. 3d
152, 157 (D.D.C. 2018) (citing Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) and Yeager v.
DEA, 678 F.2d 315, 321 (D.C. Cir. 1982)). For all these reasons, the Court finds that the USAO-
EDTN conducted an adequate and reasonable search for the requested records.
II. FOIA Exemptions & Segregability
The FBI relied on FOIA Exemptions 6 and 7(C) to justify its withholding of certain
information. See Hardy Decl., ¶¶ 63–77; Hardy Ex. CC (Vaughn Index) at A-1. Bolze did not
address Defendants’ withholdings in his opposition/cross-motion for summary judgment, nor did
he address the exemptions in his reply. He argues instead that any issues regarding the
12
Bolze argues that, during his prosecution, the AUSA intentionally suppressed a 2006 investigative file
compiled by the Commodity Futures Trading Commission (“CFTC”), which was purportedly seized by the FBI
during his arrest, and which he believes will exonerate him. See Pl. Reply at 6, 8–9, 14, 18–20. He contends that
the DOJ and its subcomponents are engaged in a scheme to withhold the CFTC file from him, in order to conceal the
AUSA’s prior alleged misdeeds. See id. But neither the USAO-EDTN nor the FBI was the originating agency of
the CTFC file, and the file was purportedly used during litigation separate from his criminal prosecution. See Pl.
Reply at 8–9. His claims thus do not cast doubt on the USAO-EDTN’s assertion that it does not possess any
responsive records. See Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1385 (8th Cir. 1985) (an agency “is not
required by [the FOIA] to account for documents which the requester has in some way identified if it has made a
diligent search for those documents in the places in which they might be expected to be found”).
17
exemptions are moot because Defendants “defaulted” in the sufficiency of their search, and thus,
he need not object to the propriety of the withholdings. See Pl. Reply at 16–19. Moreover, he
does not ask that the Court compel the production of any of the redacted or withheld information.
Because Bolze has failed to present any evidence to generate a genuine dispute of material fact
concerning the invocation of the relevant FOIA Exemptions, the Court need not rule on the
sufficiency of Defendants’ evidence with respect to the withholding of responsive material under
Exemptions 6 or 7(C), or the segregability of those materials. See Shapiro v. DOJ, 239 F. Supp.
3d 100, 105–06 n.1 (D.D.C. 2017); see also Schaerr v. DOJ, 435 F. Supp. 3d 99, 109–10
(D.D.C. 2020) (holding same).
III. Plaintiff’s Requests for Reimbursement
Bolze seeks “reimbursement for litigation costs” pursuant to 5 U.S.C. § 552(a)(4)(E).
See Pl. Mot. Reimb. at 1. The FOIA permits a district court to “assess against the United States .
. . other litigation costs reasonably incurred in any case . . . in which the [plaintiff] has
substantially prevailed.” See 5 U.S.C. § 552(a)(4)(E)(i). A party substantially prevails if he has
obtained relief “through . . . a voluntary or unilateral change in position by the agency, if the
complainant's claim is not insubstantial.” See 5 U.S.C. § 552(a)(4)(E)(ii). “This provision
codifies the so-called ‘catalyst theory’ of fee eligibility, under which ‘FOIA plaintiffs [are]
eligible for a fee award if the lawsuit substantially caused the agency to release the requested
records,’ regardless of whether the plaintiff obtained any court-ordered relief.” Judicial Watch,
Inc. v. DOJ, 878 F. Supp. 2d 225, 231 (D.D.C. 2012) (quoting Davis v. DOJ, 610 F.3d 750, 752
(D.C. Cir. 2010)).
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Bolze argues that “he has substantially prevailed because the Defendants failed to adhere
to FOIA's requirements which forced him to file a civil action to obtain access to records and in
which the Defendants would then default in their own search obligations.” See Pl. Mot. Reimb.
at 1–2. He demands “reimbursement of $2,496.87” for filing fees, office supplies, mailing costs,
and time spent reviewing productions. Id. at 2, 3; Pl. Mot. Reimb., Ex. A (Cost Breakdown.)
The Court preliminarily agrees that the filing of this litigation substantially caused
Defendants to search for and release the requested records. See Davis, 610 F.3d at 752. But a
plaintiff who “substantially prevails” is only potentially “eligible for attorney's fees [and
litigation costs]; whether the plaintiff is actually entitled to a fee award is a separate inquiry that
requires a court to consider a series of factors.” Edmonds v. FBI, 417 F.3d 1319, 1327 (D.C. Cir.
2005) (internal quotation marks, brackets and citations omitted) (emphasis in original). The
decision to award costs and fees is left to the Court's discretion. See Nationwide Bldg. Maint.,
Inc. v. Sampson, 559 F.2d 704, 705 (D.C. Cir. 1977) (commenting that § 552(a)(4)(E)
“contemplates a reasoned exercise of the courts' discretion taking into account all relevant
factors”). In making this decision, the Court considers “(1) the public benefit derived from the
case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the
records; and (4) the reasonableness of the agency's withholding of the requested documents.”
Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations omitted).
Bolze argues that his FOIA requests attempted to pierce “the veil of administrative
secrecy and to open agency actions to the light of public scrutiny and explained the nature of his
interest to access favorable exculpatory Brady type materials withheld from the defense, by the
Defendants, during his criminal prosecution.” See Pl. Mot. Reimb. at 2. That argument,
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however, fails to identify a public benefit. Bolze’s interest in the documents and intended use of
them are solely personal. “When a litigant seeks disclosure for . . . personal reasons, an award of
fees is usually inappropriate.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995); see also
Davy, 550 F.3d at 1160 (observing that plaintiffs who “seek documents for private advantage . . .
cannot deserve a subsidy as they benefit only themselves and typically need no incentive to
litigate”). Moreover, because Bolze has not contested the FBI’s claimed Exemptions, any
request for litigation costs may be summarily denied. See Schotz v. Samuels, 72 F. Supp. 3d 81,
92 (D.D.C. 2014) (denying litigation costs where the plaintiff did not contest any claimed
exemptions, and where the Court found the exemptions properly supported).
The remainder of Bolze’s claimed fees — for time spent on tasks such as “reviewing
release/withheld records,” see Pl. Mot. Reimb Ex. A, — are essentially attorney’s fees. As a pro
se plaintiff who is not an attorney, Bolze is not eligible for attorney’s fees under 5 U.S.C.
§ 552(a)(4)(E), see Benavides v. Bureau of Prisons, 993 F.2d 257, 259 (D.C. Cir. 1993), and
even represented litigants generally cannot recover fees for review of responsive FOIA
documents, see Am. Immgr. Council v. DHS, 82 F. Supp. 3d 396, 412 (D.D.C. 2015) (“Plaintiff
is not entitled to recover for time spent reviewing the documents it instituted [a] lawsuit to
obtain.”) (citation omitted). Consequently, the request for reimbursement for time spent on
document review will be denied.
Bolze also seeks to recover his document processing fees. See Pl. Mot. Reimb. Ex. A.
Bolze asserts that the the FBI overcharged him by $135.00 because the agency processed records
that were beyond the scope of his request. See Pl. Mot. at 9. Specifically, Bolze argues that the
FBI ignored his attempt to narrow his request in his October 12, 2017, letter, instead producing
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approximately 2,032 pages of non-responsive material. See id. at 9–10, 17. In his motion for
reimbursement, Bolze requests a refund for $243.22, which represents the total amount of
processing fees that he expended. See Pl. Mot. Reimb. Ex. A.
The FBI has acknowledged that it committed an administrative error in failing to honor
Bolze’s attempt to narrow his request; and the agency thus inadvertently provided some non-
responsive material. See Hardy Decl., ¶ 39. The agency attempted to remedy this error on
October 23, 2019, by providing refunds to two individuals who paid processing fees on Bolze’s
behalf. See id.; see also supra, n.11. In his reply, Bolze does not present any evidence or
argument that the reimbursements to the third parties were insufficient to address the FBI’s error.
The Court therefore concludes that there is no dispute of material fact regarding the propriety of
the document processing fees.
CONCLUSION
For the foregoing reasons, the Court concludes that Defendants conducted reasonable and
adequate searches for materials responsive to Bolze’s FOIA and PA requests. Accordingly, the
Court will grant Defendants’ motion for summary judgment and will deny Bolze’s cross-motion
for summary judgment. The Court further concludes that Bolze is not entitled to reimbursement
of his fees and costs and therefore will deny his motion for reimbursement. A separate Order
will issue this day.
Date: November 29, 2021
_______________________________
Florence Y. Pan
United States District Judge
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