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Marino v. Department of Justice

United States District Court, District of Columbia

September 6, 2016

DEPARTMENT OF JUSTICE, et al., Defendants.


          ROSEMARY M. COLLYER United States District Judge.

         Plaintiff 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.

         I. FACTS

         A. Background

         Mr. 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)[1]; and the U.S. Attorney's Office for the District of Massachusetts (USAO-MA).[2] 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.

         B. Mr. Marino's Records Requests

         From 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 generally.

         1. FOIA Request No. CRM-201200185P

         On 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].

         After 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.

         CRIM 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. ¶ 19.

         Following 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.

         2. Records Request to FBI

         Mr. 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].

         Following 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.

         3. FOIA Request Nos. 2011-2085, 2011-2968, 2011-2969, 2011-3089

         Over 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.

         Although 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.

         EOUSA 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.

         EOUSA 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.

         EOUSA 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] at 1.

         On 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.

         On 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.

         EOUSA 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].

         Following 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.[3]See Declaration of ...

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