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Marck v. Department of Health and Human Services

United States District Court, District of Columbia

June 5, 2018

DAVID J. MARCK, et al., Plaintiffs,



         David 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.

         I. BACKGROUND

         Mr. 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.[1] Collectively, the FOIA requests asked for records pertaining to the following persons and entities:

         Individuals 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.

         On 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.[2] 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.[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].

         Since 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:

         Bates 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.

         On August 31, 2017, FBI moved for summary judgment. See Mot. Mr. Marck opposed, see Opp'n, and FBI replied. See Reply.


         A. Summary Judgment

         Summary 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. Cir. 1994).

         In 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.

         B. FOIA

         FOIA 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 omitted).

         A 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).

         III. ...

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