Kolbusz v. FBI, No. 17-319, 2023 WL 2072481 (D.D.C. Feb. 17, 2023) (Sullivan, J.)

Kolbusz v. FBI, No. 17-319, 2023 WL 2072481 (D.D.C. Feb. 17, 2023) (Sullivan, J.)

Re:  Requests for records concerning plaintiff, as well as third parties

Disposition:  Adopting magistrate judge’s report and recommendation; adopting in part and denying in part without prejudice defendants’ motion for summary judgment; denying in part and denying in part without prejudice plaintiff’s cross-motion for summary judgment

• Litigation Considerations; Exemption 5, Attorney-Client Privilege; Exemption 5, Deliberative Process Privilege:  “The Court agrees with [the magistrate judge’s] findings and recommendations regarding the FBI’s release of 18 reprocessed pages.”  “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,’ . . . but elsewhere, the FBI states that it released 13 pages in part and withheld five pages in full . . . .”  “Defendants have now clarified the number of pages released, and [plaintiff] accepts their explanation for the initial confusion, as does the Court.”  “Defendants’ error did not otherwise affect the analysis in the [report and recommendation].”  “Notwithstanding the discrepancies in this declaration, [the magistrate judge] examined the FBI’s claimed exemptions for all 18 pages.”  “He determined that the FBI appropriately invoked the attorney-client privilege to withhold information from 13 documents in part . . . and that the FBI appropriately invoked the deliberative process privilege to withhold five documents in full . . . .”  “As Defendants point out . . . [plaintiff] has not argued that either conclusion is incorrect . . . .”
  
  “Further, the Court finds no error with this portion of the [report and recommendation].”  “The FBI claimed the attorney-client privilege to withhold portions of 13 documents, which contain emails discussing the appeal in [plaintiff’s] criminal case and his Section 2255 petition.”  “In the FOIA context, the attorney-client privilege protects confidential communications made between agencies and agency lawyers ‘for the purpose of securing legal advice or services.’”  “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.’”  “This is sufficient to invoke the attorney-client privilege.”
  
  “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].’”  “The interview prompts in the emails here are predecisional because they contain proposed questions developed before the FBI’s interview with [plaintiff].”  “The prompts are also deliberative because they formed ‘an integral part of the deliberations to develop a final investigative strategy.’”  “The FBI thus appropriately invoked the deliberative process privilege.”