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”),

. 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.”

(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).

¶ 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

¶ 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

(citing

Hardy Decl., ECF No. 48-1 ¶ 16). The FBI made its second release

on October 5, 2018. See

. 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

(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

(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

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

¶ 39 (citing

Hudgins Decl., ECF No. 48-4 ¶ 16). The agency contacted Mr.

Kolbusz with its determination on August 7, 2019. See

¶ 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

at

6 4. The FBI now released information that it had previously

withheld as work product. See

.

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.”

(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.”

. 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.

.

On May 9, 2018, EOUSA contacted Mr. Kolbusz and erroneously

informed him that USAO-ILN’s search returned no responsive

records. See

. Later that month, on May 22, 2018, Mr.

Kolbusz administratively appealed EOUSA’s determination. See

. 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

.

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

(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,

(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),

, at *3

(D.D.C. Sept. 12, 2019) (internal quotation marks omitted)

(citing Graham v. Mukasey,

(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.,

(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,

(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,

.

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,

(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.,

(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,

, 360–61 (1976) (quoting Rose v.

Dep’t of the Air Force,

(2d Cir. 1974)).

However, pursuant to FOIA’s nine exemptions, an agency may

withhold certain requested information.

(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.,

, 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.,

(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,

(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

(a)(4)(B); but may rely on agency declarations, see

SafeCard Servs. v. SEC,

(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.”

(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,

(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,

(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,

(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),

, at *2 (D.D.C. July 5,

15 2006) (citing Haines v. Kerner,

(1972)). The

pleadings of pro se parties therefore “[are] to be liberally

construed.” Erickson v. Pardus,

(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,

(D.D.C. 2009) (citing Jarrell v. Tisch,

(D.D.C. 1987)). Pro se litigants must comply

with federal and local rules. See Jarrell,

;

Roosevelt Land,

, 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

(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

.

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

(“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.”);

(“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

; 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

(b)(5). 4 FOIA Exemption 5 also protects information subject to the

deliberative process privilege. See

(b)(5). 18 lawyers “for the purpose of securing legal advice or services.”

Tax Analysts v. I.R.S.,

(D.C. Cir. 1997)

(citing In re Sealed Case,

, 98–99 (D.C. Cir. 1984));

Jud. Watch, Inc. v. U.S. Dep’t of Treasury,

(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.,

(D.D.C. 2018), aff’d, No. 18-5132,

(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.,

, 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.,

(D.D.C. 2019) (quoting Coastal States Gas

Corp. v. Dep’t of Energy,

(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,

(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.,

(D.C. Cir. 1992), abrogated on other grounds, Milner v. Dep’t of Navy,

(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,

(quoting Fed. R. Civ. P. 15(d)) (citing United States v. Hicks,

(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.,

(D.D.C. 2002); see also Toensing v. U.S. Dep’t of Just.,

(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,

(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,

(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.,

(1948); Haughton v. Dist. of Columbia,

(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.,

, 3 (D.D.C. 2022) (quoting Am. Ctr. for Civ.

Just. v. Ambush,

(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.”

True, “pro se litigants are

not held to the same standards in all respects as are lawyers.”

Roosevelt Land,

, at *2 (citing Haines,

). But “[t]his benefit is not . . . a license to ignore

the Federal Rules of Civil Procedure.” Sturdza,

(citing Jarrell,

). 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.

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.,

(D.D.C. 2010) (citing Hidalgo v.

FBI,

(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.,

(D.D.C. 2011) (citing Jones v.

24 Dep’t of Just.,

(D.D.C. 2008)), aff’d sub

nom. Flaherty v. I.R.S.,

(D.C. Cir. 2012); most

FOIA cases, including those involving a failure to exhaust

administrative remedies, are resolved on summary judgment, see

Brayton,

. 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.,

(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

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,

(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,

(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.,

(D.D.C. 2016); other than a

desire to “circumvent the effects of summary judgment by

[supplementing] the complaint,” Hoffmann v. United States,

(D.D.C. 2003), aff’d,

(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,

(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,

(“[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,

)).

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.,

(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