Marck v. Dep't of Health & Human Servs.

314 F. Supp. 3d 314
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 5, 2018
DocketCivil Action No. 15–10 (RMC)
StatusPublished
Cited by6 cases

This text of 314 F. Supp. 3d 314 (Marck v. Dep't of Health & Human Servs.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marck v. Dep't of Health & Human Servs., 314 F. Supp. 3d 314 (D.C. Cir. 2018).

Opinion

ROSEMARY M. COLLYER, United States District Judge

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 *321FOIA 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 *3221260681-000, 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.

II. LEGAL STANDARDS

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).

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314 F. Supp. 3d 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marck-v-dept-of-health-human-servs-cadc-2018.