Brodsky v. Fed. Bureau of Investigation

1

JOEL A. BRODSKY, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, an agency of the UNITED STATES OF AMERICA Defendant.

No. 1:22-cv-06462

United States District Court, N.D. Illinois, Eastern Division

August 16, 2024

MEMORANDUM OPINION AND ORDER

SHARON JOHNSON COLEMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Joel A. Brodsky, brings this action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), to compel Defendant Federal Bureau of Investigation (“FBI”) to disclose all documents requested by Brodsky from the FBI under the provisions of the FOIA. Before the court is the FBI's motion for summary judgment [66] and Brodsky' cross motion for summary judgment [83]. For the reasons below, this Court grants the summary judgment in favor of the FBI. The FBI's motion to extend the time of the filing of its reply in support of its motion for summary judgment and response to the Brodsky's cross motion for summary judgment [84] is denied as moot.

BACKGROUND

A. Factual Background

Plaintiff Joel Brodsky is a former lawyer. Defendant FBI is an agency of the Department of Justice, an executive department of the United States Government. Brodsky submitted a FOIA request to the FBI in October 2020 seeking any and all records concerning himself with a search time frame of January 1 2000, to present. (Dkt. [67] at ¶ 4). Brodsky claimed that he was a cooperating witness with the code name “Noah.” Id. Brodsky also requested “[a]ny and all documents, reports, or communications regarding or referring to an internal FBI investigation(s) into the conduct of FBI Special Agent Lyle Evans, at any time after 2001;” “[a]ny and all documents, reports, or communications regarding or referring to an investigation into suspected criminal activity, suspected illegal activity and/or suspected corruption within the Domestic Relations Division (a/k/a Divorce Division) of the Circuit Court of Cook County, Illinois, by the FBI between 2000 and 2020;” and any and all documents, reports, or communications regarding conversations with Guardian Ad Litem/Attorney David Pasulka at the direction of FBI Special Agents. (Id.)

By letter dated October 15, 2020, the FBI informed Brodsky that it had received his request and assigned it Request Number 1478481-000. (Id. at ¶ 5). FBI files are indexed using main and reference indexes. (Id. at ¶ 6). The main index entries are of the person or thing that is the subject of an investigation, and the reference index concerns individuals or things associated with but not the subject of the investigation. (Id.) In October 2020, the FBI conducted a search using its main file index per the FBI's procedure to search only main files if a reference search was not requested and no specific details were provided that would cause a need for reference files to be searched. (Id.) This search returned no records, and the FBI so advised Brodsky. (Id.)

The FBI subsequently determined that additional searching should be conducted and advised Brodsky that his FOIA request was being reopened and assigned Request Number 1478481001. (Id. at ¶ 7). The FBI determined that a search of the automated indices for its central records system, available within its Sentinel database via the Sentinel and automatic case support (ACS) search functions in Sentinel, represented the most reasonable means for the FBI to locate potentially responsive records. (Id.) The indices provide access to a comprehensive, agencywide set of indexed data and consist of millions of searchable records that are updated daily with newly indexed information. (Id.)

The FBI searched using reference entries in its Sentinel and ACS indices using the following terms: “Joel Brodsky” and “Noah Brodsky,” employing a search cut-off date of October 15, 2020(the FBI's initial record search). (Id. at ¶ 8). Files were located and processed for Brodsky for those search terms. The FBI also searched the terms “Domestic Relations Division” and “Divorce Division.” No records were found to be responsive to this portion of the request. (Id.)

By letter dated February 28, 2023, the FBI made its first interim release of records to Brodsky, advising that 23 pages were reviewed, and 7 pages were being released in full or part, with certain information exempted pursuant to Privacy Act Exemption (j)(2), 5 U.S.C. § 552a (j)(2), and FOIA Exemptions (b)(3), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E), 5 U.S.C. §§ 552 (b)(3), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). (Id. at ¶ 9).

Additionally, the FBI advised that to the extent that Brodsky requested information regarding specific third-party individuals, the FBI will neither confirm nor deny the existence of such records pursuant to FOIA Exemptions (b)(6) and (b)(7)(C), 5 U.S.C. §§ 552 (b)(6) and (b)(7)(C). (Id. at ¶ 10). The FBI also notified Brodsky that it had conducted a main and reference entity search of its Central Records System for records pertaining to the Domestic Relations Division of the Circuit Court of Cook County, Illinois between 2000 and 2020, however it was unable to identify records that were responsive to the FOIA request. (Id.) The FBI released additional documents on March 28, 2023; April 28, 2023; and May 31, 2023. (Id.)

In all, the FBI processed a total of 564 pages of responsive records subject to the FOIA. Of these pages, the FBI released 14 pages in full, released 84 pages in part, and withheld 466 pages in full because the withheld pages and portions of pages were exempt pursuant to one or more applicable FOIA Exemptions or else were duplicative of other pages accounted for elsewhere in the FBI's production. (Id. at ¶ 12). The FBI numbered all pages of its production consecutively as FBI (22-cv-6462)- 1 through FBI (22-CV-6462)-564. Id. The FBI redacted these pages in whole or in part based on applicable FOIA exemptions (b)(3), (b)(5), (b)(6), and (b)(7). Ex. 1(Z) is an index that indicates the specific FOIA exemptions asserted on each page and the kind of information that is being protected. (Id.)

B. Procedural History

Brodsky filed his complaint on November 18, 2022. (Dkt. [1]). On April 19, 2023, Brodsky moved for in camera inspection of the undisclosed documents at issue in this case, representing that the documents contained information relating to statements he made as a confidential informant. (Dkt. [18]). Magistrate Judge Jeffery Cole conducted an in camera review of the documents as the parties discussed settlement. (Dkt. [51]).

On February 1, 2024, pursuant to this Courts's order, the FBI filed a heavily redacted Vaughn index. (Dkt. [59]). After a second hearing determining that this Vaughn index was insufficient, this Court entered an order on February 7, 2024, directing the FBI to file its Vaughn index with more information on the docket by February 13. (Dkt. [63]). This Court also gave the FBI leave to file an unredacted Vaughn index for in camera inspection to determine whether any information must be turned over to the Brodsky. Id. The FBI filed its amended public Vaughn index on February 13, 2024 and Brodsky filed his objections to the public Vaughn index on February 21, 2024. (Dkt. [65]).

On March 22, 2024, the FBI moved for summary judgment. (Dkt. [66]). After the Court heard brief oral arguments, the Court granted Brodsky's motion to pause briefing on FBI's motion for summary judgment pending the Court's ruling on the objections to the amended Vaughn index on April 2, 2024. (Dkt. [72]).

On May 3, 2024, this Court, having reviewed the FBI's redacted Vaughn index as well as the accompanying declaration in camera, entered an Order finding that the redacted Vaughn index provided to the Brodsky was sufficient, and set a briefing schedule on the Motion for Summary Judgment. (Dkt. [73]). That same day, Brodsky moved this Court to compel the FBI to disclose and deliver the Court all documents requested by Brodsky from Defendant under the provisions of the FOIA so the Court can conduct an in camera inspection of the documents during its consideration of the summary judgment motion brought by the FBI. (Dkt. [74]). The Court noted that the documents at issue had been previosuly provided in this case to Magistrate Judge Cole for his review. Despite this, this Court ordered the FBI to provide unredacted copies of the documents to this Court for in camera review and paused briefing on FBI's motion for summary judgment pending the Court's review of the documents. (Dkt. [76]).

On May 22, 2024, after conducting Brodsky's requested in camera review of the unredacted documents, the Vaughn index, and the accompanies declarations providing reasons and justification for the redactions, this Court held that the redactions were proper and that the FBI has provided Brodsky with all of the information to which he was entitled and continued the summary judgment briefing schedule. (Dkt. [77]).

Brodsky filed his cross-motion for summary judgment on July 31, 2024. (Dkt. [83]). Although the motions are not yet fully briefed, the Court has determined from the parties' submissions that there are no disputes of fact exist such that summary judgment for either side is precluded; further response and reply briefs would not alter this conclusion. See Carter v. City of Wauwatosa, No. 19-CV-1422-JPS, 2022 WL 3228046, at *2 (E.D. Wis. Aug. 10, 2022) (ruling on cross motion for summary judgment before fully briefed). Accordingly, the FBI's motion to extend the time of the filing of its reply in support of its motion for summary judgment and response to the plaintiff's cross motion for summary judgment [84] is denied as moot.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled...