United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
Vincent Michael Marino challenges the adequacy of the
responses to his FOIA and Privacy Act requests that he sent
to the Department of Justice and various constituent agencies
of the DOJ. The Court will grant summary judgment in favor of
Defendants because they properly and adequately responded to
Mr. Marino's requests.
Marino is imprisoned at Federal Correctional Institution
(FCI) McDowell in West Virginia, Compl. [Dkt. 1] at 2, after
convictions in the U.S. District Court for the District of
Massachusetts for racketeering, conspiracy to murder in aid
of racketeering, and drug possession, see United States
v. Marino, 277 F.3d 11 (1st Cir. 2002); Mot. [Dkt. 79]
at 2-3. A repeat litigator, Mr. Marino now sues several
components of DOJ under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, and Privacy Act of 1974,
id. § 552a. Specifically, Mr. Marino names: the
Criminal Division of the Department of Justice (CRIM); the
Executive Office of the U.S. Attorneys (EOUSA); the Federal
Bureau of Investigation (FBI); the Office of Enforcement
Operations (OEO); and the U.S. Attorney's Office for
the District of Massachusetts (USAO-MA). Compl. at 2. Mr.
Marino seeks records that allegedly demonstrate his actual
and legal innocence of the “Salemme attempted murder,
” racketeering convictions, and drug convictions,
including records from meetings allegedly held by Assistant
U.S. Attorneys (AUSAs) to achieve a “potential out of
court settlement” that “facilitated FRAUD [sic]
upon the Federal Grand Jury [sic].” Id. at
3-4. Mr. Marino claims that these records show
“egregious governmental misconduct, due process
violations, . . . governmental impediments, ” and
violations of his rights to exculpatory evidence under
Brady v. Maryland, 373 U.S. 83 (1963). Compl. at 3.
Mr. Marino's Records Requests
2011 to 2012, Mr. Marino sent numerous letters to Defendants
requesting multiple records. Defendants designated these
letters as follows: FOIA Request No. CRM-201200185P; FOIA
Request No. 2011-2085; FOIA Request No. 2011-2968; FOIA
Request No. 2011-2969; and FOIA Request No. 2011-3089. Many
of the requests overlapped and nearly all sought at least one
of the following types of records: sealed records from
United States v. Salemme, 91 F.Supp.2d 141 (D. Mass.
1999), rev'd in part, United States v.
Flemmi, 225 F.3d 78 (1st Cir. 2000), a criminal matter
not involving Mr. Marino; FBI recordings regarding the
Salemme attempted murder; verdict forms from Mr. Marino's
criminal prosecutions; and records relating to Mr. Marino
FOIA Request No. CRM-201200185P
March 2, 2012, CRIM received a letter from Mr. Marino dated
February 20, 2012. Declaration of Kenneth W. Courter, Jr.
(“Courter Decl.”) [Dkt. 14-4] ¶¶ 5-6.
As relevant, the letter requested:
any & all records, documents, memoranda, statements,
reports, & other information or data in whatever form,
maintained by your agency that relates to and/or makes
reference to [Mr. Marino], directly or indirectly, more
specifically [Mr. Marino], requests the (Under Seal
Documents) described in U.S. v. Salemme, 91
F.Supp.2d [sic] pages 267-269 (D.Mass.1999) [sic] which shows
that FBI publicly known informants Angelo “Sonny”
Mercurio, James “Whitey” Bulger & Stephen
“The Rifleman” Flemmi called Salemme to a
location in June 16, 1989 to be shot while all three
informants worked for convicted FBI agent Connolly.
Courter Decl., Ex. 1[Dkt. 14-4] at 1. Mr. Marino also asked
that any queries for responsive records include his aliases,
which he listed as “Vincent Michael Portalla” and
“Gigi.” Id. at 2. These requests were
made pursuant to FOIA and the Privacy Act. CRIM construed the
letter as a request for records relating to Mr. Marino's
U.S. District Court for the District of Massachusetts
criminal matter, Case No. 4:97-40009. Courter Decl. ¶ 5.
CRIM designated the letter as FOIA Request No. CRM-201200185P
and performed a search for responsive records using the terms
“Marino, Vincent Michael, ” and “Marino,
Vincent.” Courter Decl. ¶¶ 5, 7. No
responsive records were found and CRIM notified Mr. Marino of
the search results on May 14, 2012. Courter Decl. ¶ 8;
see id., Ex. 2 [Dkt. 14-4].
the instant litigation commenced, CRIM conducted additional
searches for records responsive to Mr. Marino's February
20, 2012 request. CRIM searched the records of the Electronic
Surveillance Unit of OEO and the Organized Crime and Gang
Section (OCGS). Courter Decl. ¶ 9. Using Mr.
Marino's last name and, this time, his aliases, CRIM
searched one of ESU's electronic databases and one of its
shared computer drives. Courter Decl. ¶¶ 10-11, 13-
14. Similarly, CRIM searched OCGS's four electronic
databases with a query using the search terms “Vincent
Marino, ” “Vincent Michael Marino, ”
“Vincent Portalla, ” “Vincent Michael
Portalla, ” and “Gigi.” Courter Decl.
¶¶ 15-17. It also searched the physical files of
ESU and OCGC. Courter Decl. ¶¶ 12, 18. In these
searches, CRIM located a total of seventeen pages of records.
Courter Decl. ¶¶ 11, 14, 17.
processed the responsive records found in its second search,
and on March 15, 2013, sent a letter to Mr. Marino informing
him of the search results. Courter Decl. ¶ 19; see
id., Ex. 3 [Dkt. 14-4]. Out of the seventeen pages of
responsive records, CRIM released to Mr. Marino one page in
full and seven pages in part, and withheld nine pages in full
pursuant to FOIA Exemptions 5, 6, and 7(C). Courter Decl.
this Court's November 12, 2013 Opinion and Order [Dkt.
24, 25], CRIM performed an additional search for records
related to the Salemme case, which mentioned Mr.
Marino. Declaration of John E. Cunningham III
(“Cunningham Decl.”) [Dkt. 79-9] ¶ 10. CRIM
personnel located the closed case file from U.S. v.
Salemme, File No. 123-36-308, and processed and reviewed
the records responsive to Mr. Marino's requests.
Id. ¶ 11; Ex. 1 [Dkt. 79-6]. CRIM located only
one record within the Salemme file that was
responsive to Mr. Marino's request and, by a letter dated
January 13, 2014, the record was produced to Mr. Marino.
See Ex. 1.
Records Request to FBI
Marino sent a letter to the FBI dated February 20, 2012.
Declaration of David M. Hardy (“Hardy Decl.”)
[Dkt. 14-3] ¶ 5. As with his request to CRIM, Mr. Marino
relied on FOIA and the Privacy Act to ask for the sealed
records from the Salemme prosecution and records
generally relating to Mr. Marino and his aliases. Hardy
Decl., Ex. A [Dkt. 14-3] at 2-3. Construing Mr. Marino's
letter only as a request for sealed court documents, FBI
responded on April 12, 2012, that it did not maintain the
records Mr. Marino sought. FBI advised Mr. Marino to direct
his requests for sealed records to EOUSA. See Hardy
Decl., Ex. B [Dkt. 14-3].
this Court's November 12, 2013 Opinion and Order, FBI
expanded the scope of its search. Second Declaration of David
M. Hardy (“2nd Hardy Decl.”) [Dkt. 79-4] ¶
13. FBI “conducted a search of the [Central Record
System] CRS to identify all potentially responsive files
indexed to plaintiff, ” “using a six-way phonetic
breakdown” of Mr. Marino's full name. Id.
The search also included Mr. Marino's alias, Gigi
Portalla. See id. The FBI located records which were
previously produced to Mr. Marino pursuant to an earlier FOIA
request and, therefore, the records were not reproduced.
See id.; see generally Marino v. CIA, Civil
Case No. 11-813, 2012 WL 4482986 (D.D.C. Sept. 28, 2012),
aff'd, 2013 WL 5975000 (D.C. Cir. Oct. 21,
2013). There is no indication in Mr. Hardy's Second
Declaration or in the briefing that FBI informed Mr. Marino
no additional records were located.
FOIA Request Nos. 2011-2085, 2011-2968, 2011-2969,
the course of approximately ten months, Defendants received a
combined total of ten letters from Mr. Marino. EOUSA grouped
these letters under four FOIA numbers. The letters dated May
16, 2011, June 16, 2011, June 22, 2011, July 6, 2011, July 7,
2011, and March 6, 2012, were designated as FOIA Request No.
2011-2085. The letter dated May 31, 2011, and the two letters
both dated July 12, 2011, were designated as FOIA Request No.
2011-3089. Finally, EOUSA split the letter dated August 15,
2011, into two requests: FOIA Request Nos. 2011-2968 and
2011-2969. Declaration of Kathleen Brandon (“Brandon
Decl.”) [Dkt. 15-1] ¶¶ 4-8.
EOUSA did not group the letters by subject, each letter from
Mr. Marino sought at least one of four types of records. The
letters dated May 16, 2011, May 31, 2011, and June 16, 2011,
asked for records under FOIA and the Privacy Act pertaining
to Mr. Marino that concerned “paranormal, esoteric
phenomena events in the Federal Bureau of Prisons” or
the “implantation of electronic devices” in his
body. See Brandon Decl., Ex. A [Dkt. 15-1] at 1;
id., Ex. B [Dkt. 15-1] at 1; id., Ex. G
[Dkt. 15-2] at 1. The letter dated July 6, 2011, and one of
the letters dated July 12, 2011, requested records under FOIA
concerning Mr. Marino or his aliases as well as “the
December 22, 1999 ‘Verdict Sheet'” from his
Massachusetts District Court criminal trial, Case No.
4:97-40009. Id., Ex. D [Dkt. 15-1] at 1-2;
id., Ex. H [Dkt. 15-2] at 1-2. These letters also
asked for certain corrections to the verdict sheet pursuant
to the Privacy Act. Id., Ex. D [Dkt. 15-1] at 1-2;
id., Ex. H [Dkt. 15-2] at 1-2. The letter dated
August 15, 2011, sought records under FOIA and the Privacy
Act relating to Mr. Marino that involved DOJ's
designation of him as a “terrorist, a member of a
militia, or a sovereign citizen.” Brandon Decl., Ex. J
[Dkt. 15-3] at 1-2. Finally, each of the letters dated June
22, 2011, July 7, 2011, and March 6, 2012, as well as the
other July 12, 2011 letter, made the same FOIA and Privacy
Act requests as those submitted to CRIM and FBI: the sealed
documents from the Salemme prosecution and records
generally relating to Mr. Marino or his aliases.
Id., Ex. C [Dkt. 15-1] at 1-2; id., Ex. E
[Dkt. 15-1] at 2-3; id., Ex. F [Dkt. 15-2] at 1-2;
id., Ex. I [Dkt. 15-3] at 2-3.
responded to Mr. Marino on July 13, 2012, with a letter that
informed him that his requests were insufficient to identify
the sealed documents he sought from Salemme. EOUSA
explained that the pages he cited “contain[ed]
references to multiple documents that may or may not be under
seal.” Brandon Decl., Ex. K [Dkt. 15-3] at 1. To make
its records search “meaningful, ” EOUSA asked Mr.
Marino to “provide a citation to the specific
record” that he sought. Id., Ex. K at 1. Mr.
Marino answered on July 24, 2012, with a list of: specific
pages and exhibits from Salemme; citations to other
decisions, including his own cases; and a file number for
four FBI tapes from 1989 concerning the Salemme
attempted murder. Id., Ex. L [Dkt. 15-3] at 2. Mr.
Marino told EOUSA that he was “willing to pay all costs
up to $1000.00 to receive” the records he had
requested. Id., Ex. L at 2.
then directed USAO-MA to search for records responsive to Mr.
Marino's requests. Admittedly confused by the scope of
Mr. Marino's requests, USAO-MA, with the assistance of
the AUSA who had prosecuted Mr. Marino, conducted a search
for responsive records. An approximately two-hour search
yielded three file cabinets, thirty-five boxes, and
approximately 72, 000 electronic files containing potentially
responsive records. Brandon Decl. ¶¶ 12-14.
wrote again to Mr. Marino on November 20, 2012, updating him
on its search. EOUSA reported the volume of records that its
initial search had uncovered, and estimated that completing
the search would require approximately 320 hours. Based on a
search time fee of twenty-eight dollars per hour, EOUSA
estimated the total cost of the search to be $8, 960.00. It
asked Mr. Marino to remit a check or money order for this
amount, narrow his request, or specify the amount he was
willing to pay (in which case EOUSA would only process
records up to that amount). Brandon Decl., Ex. M [Dkt. 15-3]
December 17, 2012, EOUSA received a request from Mr. Marino
for a fee waiver. Defs.' Statement of Facts ¶ 53.
Mr. Marino asserted that the records would show
“egregious governmental misconduct, due process
violations [and] [would] serve as a substantial public
interes[t].” Brandon Decl., Ex. N [Dkt. 15-3] at 10.
EOUSA denied this request on January 16, 2013. Defs.'
Statement of Facts ¶ 54. It informed Mr. Marino that, to
receive a waiver or reduction in fees, he had to
“demonstrate that ‘disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations and
activities of the government and is not primarily in the
commercial interest of the requester.'” Brandon
Decl., Ex. O [Dkt. 15-4] (quoting 5 U.S.C. §
552(a)(4)(A)(iii)). Based on the factors set forth in 28
C.F.R. § 16.11(k), EOUSA found that Mr. Marino did not
qualify for a waiver or fee reduction. It again directed him
either to narrow his request or designate the amount of money
he was willing to pay. EOUSA concluded its letter by
informing Mr. Marino that he could appeal its decision within
sixty days of the date of the letter, and that failure to
respond within thirty days would result in closure of his
FOIA and Privacy Act requests. Brandon Decl. ¶ 18.
January 17, 2013, and February 10, 2013, Mr. Marino appealed
the denial of his fee waiver request. Brandon Decl., Ex. P
[Dkt. 15-4]; id., Ex. R [Dkt. 15-4]. He sent one
letter directly to Office of Information Policy (OIP), the
DOJ component that handles FOIA administrative appeals,
see 28 C.F.R. § 16.9(a), and another to EOUSA,
which forwarded it to OIP, Brandon Decl. ¶ 20.
administratively closed all four of Mr. Marino's FOIA
requests on February 28, 2013, for failure to pay the search
fee within thirty days of January 16, 2013. Brandon Decl.,
Ex. Q [Dkt. 15-4]. Mr. Marino moved this Court to grant a fee
waiver but that motion was denied on June 19, 2014.
See Mot. for Fee Waiver [Dkt. 29]; Supp. Mot. for
Fee Waiver [Dkt. 35]; Fee Waiver Opinion [Dkt. 39]; Fee
Waiver Order [Dkt. 40]. On or about November 24, 2014, EOUSA
received a check from Mr. Marino in the amount of $8, 960.00,
which covered the entire anticipated cost of the search and
review of the remaining potentially responsive records.
See Defs.' Notice to the Court [Dkt. 68].
receipt of Mr. Marino's payment, EOUSA and USAO-MA
reviewed additional records. Between February 2015 and June
2015, a paralegal specialist at USAO-MA reviewed the
following: (1) records from United States v.
Salemme, Case No. 94-cr-10287-MLW; (2) records from
United States v. Connolly, Case No. F01-cr-8287D;
(3) results from a docket search for cases involving Jody
Wampler; and (4) records from United States v.
Marino, Case No. 97-cr-40009-NMG. See
Declaration of Susanne Husted (“Husted Decl.”)
[Dkt. 79-8] ¶¶ 16-19. On May 8, 2015, EOUSA
responded on behalf of EOUSA and USAO-MA, informing Mr.
Marino that 156 pages were being released in full, 3 pages
were deemed non-responsive, 29 pages were withheld in full,
and 64 pages were referred to the FBI for
review.See Declaration of ...