Kolbusz v. Fed. Bureau of Investigation

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ROBERT KOLBUSZ, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civ. Action No. 17-319 (EGS/GMH)

United States District Court, District of Columbia

February 17, 2023

MEMORANDUM OPINION

EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

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 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 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] 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 1216. 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).

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. (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 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 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...