United States District Court, District of Columbia
DAVID J. MARCK, et al., Plaintiffs,
DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Marck and Sills Cummis & Gross, P.C. (collectively, Mr.
Marck) sue the Department of Health and Human Services (HHS),
Food and Drug Administration (FDA), Department of Justice
(DOJ), and Federal Bureau of Investigation (FBI) under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552
(2012), challenging the adequacy of those agencies'
response to its FOIA requests. All claims against HHS and FDA
were previously dismissed and the parties have narrowed the
remaining issues to six pages of records redacted or withheld
by FBI, a constituent agency of DOJ. FBI now moves for
summary judgment and Mr. Marck requests in camera
review of the six pages so the Court can determine the
propriety of the redactions. The Court will grant FBI's
motion for summary judgment and deny Mr. Marck's motion
for in camera review.
Marck is an attorney formerly of the law firm Sills Cummis
& Gross, P.C. Pls.' Opp'n to the Gov't's
Mot. for Summ. J. (Opp'n) [Dkt. 26] at 4. On April 16,
2014, Mr. Marck filed the underlying FOIA requests with FBI
on behalf of his client Mark Cocchiola and his wife, Anne
Cocchiola. Id. On April 17, 2014, he supplemented
the request. Id.; see also Ex. A, Decl. of
David M. Hardy, April 16, 2014 FOIA Request (April 16 FOIA
Req.) [Dkt. 24-1] at 29; Ex. B, Decl. of David M. Hardy,
April 17, 2014 FOIA Request (April 17 FOIA Req.) [Dkt. 24-1]
at 32. Collectively, the FOIA requests asked for
records pertaining to the following persons and entities:
1. Mark Cocchiola
1. Suprema Specialties
2. Jack Gaglio
2. Whitehall Specialties
3. Paul Lauriero
3. A&J Foods, Inc.
4. Robert Quattrone
4. Hidden Valley Ranch
5. George Vieira
5. Noble JG Cheese
6. Paul Zambas
6. California Goldfield
7. Arthur Christensen
7. West Coast Commodities
8. Lawrence Fransen
8. California Milk Market
9. John Van Sickell
9. Wall Street Cheese
10. Steven Venechanos
10. LNN Enterprises
11. Chris Lotito
11. A&J Cheese Company
12. Chester Destefano
12. Lotito Foods
13. Steven Fawcett
13. Mrs. Mazzula's Foods
14. Destefano Foods
15. Roma Foods
16. Piancone Food Service, Inc.
17. Capri Foods
18. Marlboro Foods
See April 17 FOIA Req. at 32-33.
April 23, 2014, FBI acknowledged receipt of Mr. Marck's
FOIA requests for records pertaining to third-party
individuals, assigned it FOIA request number 1260681-000, and
notified Mr. Marck that further information was required
before third-party records could be processed. Decl. of David
M. Hardy (Hardy Decl.) [Dkt. 29-1] ¶ 6. On May 7, 2014,
FBI acknowledged receipt of Mr. Marck's FOIA requests for
information pertaining to the non-person entities Suprema
Specialties, Whitehall Specialties, A&J Foods, Inc.,
Hidden Valley Ranch, Noble JG Cheese, California Goldfield,
West Coast Commodities, California Milk Market, Wall Street
Cheese, LNN Enterprises, A&J Cheese Company, Lotito
Foods, Mrs. Mazzula's Foods, Destefano Foods, Roma Foods,
Piancone Food Service, Inc., Capri Foods, and Marlboro Foods
and assigned them, respectively, FOIA request numbers
1264018-000, 1263861-000, 1264075-000, 1263859-000,
1264153-000, 1263885-000, 1264033-000, 1263871-000,
1263825-000, 1263865-000, 1263838-000, 1263852-000,
1263772-000, and 1321143-000. Id. ¶¶ 5, 7;
see also id. at 3 n.3. In late May 2014, FOIA request
number 1260681-000, pertaining to the individuals, was
administratively closed because Mr. Marck failed to provide
the necessary additional information to justify the
disclosure of third-party information. Id. ¶ 8.
On January 5, 2015, Mr. Marck filed this lawsuit
“stating that no records had been received from the FBI
regarding any individual or entity listed in his FOIA
request[s].” Id. ¶ 10; see also
Compl. [Dkt. 1].
the beginning of this litigation, FBI has “processed a
total of 6, 674 responsive pages and released . . . a total
of 2, 278 pages” to Mr. Marck. Hardy Decl. ¶ 4.
FBI released the records in twelve productions between March
26, 2015 and June 9, 2017. Id. ¶¶ 13-26.
Mr. Marck now only challenges the legitimacy of redactions
made on six pages of records:
numbers Marck 76-79 and 101-102. Id. ¶ 27.
Those pages “comprise a Form FD-302 dated February 4,
2002” and “an Electronic Communication
(“EC”) dated February 4, 2002, generated by a
Special Agent (“SA”) from the La Crosse Resident
Agency sent to the Newark Field Office
(“FO”).” Mot. for Summ. J. [Dkt. 24] at 7
(citing Hardy Decl. ¶ 4). FBI withheld and redacted
information pursuant to FOIA Exemptions 3, 6, 7(C), and 7(D)
because that information included grand jury material and
“records generated during an investigation that, if
released, would needlessly violate the privacy interests of
FBI Special Agents, third parties merely mentioned in
investigative files, and third parties who provided
information to the FBI under an expectation of
confidentiality.” FBI's Reply in Supp. of its Mot.
for Summ. J. (Reply) [Dkt. 27] at 1.
August 31, 2017, FBI moved for summary judgment. See
Mot. Mr. Marck opposed, see Opp'n, and FBI
replied. See Reply.
judgment is the typical vehicle to resolve an action brought
under FOIA. See McLaughlin v. DOJ, 530 F.Supp.2d
210, 212 (D.D.C. 2008). Under Federal Rule of Civil Procedure
56, summary judgment is appropriate if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(c). A party
seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C.
considering whether there is a triable issue of fact, a court
must draw all reasonable inferences in favor of the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The party opposing a motion for
summary judgment, however, “may not rest upon the mere
allegations or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 248.
requires federal agencies to release government records to
the public upon request, subject to nine listed exceptions.
See 5 U.S.C. § 552(b); Wolf v. CIA,
473 F.3d 370, 374 (D.C. Cir. 2007). FOIA cases typically and
appropriately are decided on motions for summary judgment.
See Wolf, 473 F.3d at 374; Rushford v.
Civiletti, 485 F.Supp. 477, 481 n.13 (D.D.C. 1980),
aff'd sub nom. Rushford v. Smith, 656 F.2d 900
(D.C. Cir. 1981). In a FOIA case, a court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations when the
affidavits or 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.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
“[A]gency declarations generally are entitled to a
presumption of good faith, and therefore, to successfully
challenge an agency's showing that it complied with the
FOIA, the plaintiff must come forward with specific facts
demonstrating that there is a genuine issue with respect to
whether the agency has improperly withheld extant agency
records.” Ahuruonye v. Dep't of Interior,
239 F.Supp.3d 136, 141 (D.D.C. 2017) (internal citations
defending agency in a FOIA case must show that its search for
responsive records was adequate, that any exemptions claimed
actually apply, and that any reasonably segregable non-exempt
parts of records have been disclosed after redaction of
exempt information. See Sanders v. Obama, 729
F.Supp.2d 148, 154 (D.D.C. 2010), aff'd sub nom.
Sanders v. DOJ, No. 10-5273, 2011 WL 1769099 (D.C. Cir.
Apr. 21, 2011).