ROSEMARY M. COLLYER, United States District Court Judge.
On May 29, 2012, Vincent M. Marino filed a pro se lawsuit against several agencies within the Department of Justice for allegedly violating the Freedom of Information Act, Privacy Act, and Sunshine Act. Currently incarcerated in federal prison on racketeering and drug-related convictions, Mr. Marino requests a variety of records that he believes will both exonerate him and show government misconduct. Specifically, Mr. Marino claims that the records will show that Angelo "Sonny" Mercurio, James "Whitey" Bulger, and Stephen Flemmi set him up with false charges, aided and abetted by rogue federal agents and prosecutors. The defending federal agencies move to dismiss, or in the alternative for summary judgment. The Court finds that the motion largely is premature. While Mr. Marino's Sunshine Act claim is facially frivolous, his other causes of action are not so clearly without merit. Some agencies did not conduct any search for responsive records while others performed searches only partially responsive to Mr. Marino's requests. Unable to find that the defending federal agencies conducted adequate searches, reasonably calculated to identify responsive records, the Court will deny without prejudice the motion to dismiss, or in the alternative, motion for summary judgment.
Mr. Marino is imprisoned at Federal Correctional Institution (FCI) McDowell in West Virginia, Compl. [Dkt. 1] at 2, after convictions for racketeering, conspiracy to murder in aid of racketeering, and drug possession in the District Court for the District of Massachusetts, see United States v. Marino, 277 F.3d 11 (1st Cir. 2002); Mot. to Dismiss or Summ. J. [Dkt. 14] at 2-3. A repeat litigator,
From 2011 to 2012, Mr. Marino sent numerous letters to Defendants requesting multiple records. Defendants designated these letters as follows: FOIA Request No. CRM201200185P; 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 documents 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.
On March 2, 2012, CRIM received a letter from Mr. Marino dated February 20, 2012. Defs.' Statement of Facts [14-1] ¶¶ 1-2; Courter Decl. [Dkt. 14-4] ¶¶ 5-6. As relevant, the letter requested:
Courter Decl., Ex. 1 [Dkt. 14-4] at 1. Mr. Marino also asked that any queries for responsive documents 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 District Court for the District of Massachusetts criminal matter, Case No. 4:97-40009. Defs.' Statement of Facts ¶ 1; 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." Defs.' Statement of Facts ¶¶ 1, 4; Courter Decl. ¶¶ 5, 7. No responsive records were found and CRIM notified Mr. Marino of the search results on May 14, 2012. Defs.' Statement of Facts ¶ 5; 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). Defs.' Statement of Facts ¶ 6; Courter Decl. ¶ 9. Using Mr.
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. Defs.' Statement of Facts ¶ 15; 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.
Mr. Marino sent a letter to FBI dated February 20, 2012. Defs.' Statement of Facts ¶ 33; Hardy Decl. [14-3] ¶ 5. As with his request to CRIM, Mr. Marino relied on FOIA and the Privacy Act to ask for the sealed documents 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. Defs.' Statement of Facts ¶ 34; see Hardy Decl., Ex. B [Dkt. 14-3].
Over the course of approximately ten months, OAG, OEO, FBI, EOUSA, USAO-MA, USAO-DC,
Although EOUSA did not group the letters by subject, each letter from Mr. Marino sought at least one of four types of
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." Defs.' Statement of Facts ¶ 46; 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. 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. Defs.' Statement of Facts ¶ 47; Brandon Decl., 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. 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. Defs.' Statement of Facts ¶¶ 48-51; 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). Defs.' Statement of Facts ¶¶ 51-52; Brandon Decl., Ex. M [Dkt. 15-3] at 1.
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 [15-4]. He sent one letter directly to 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, Defs.' Statement of Facts ¶ 57; Brandon Decl. ¶ 20. The record is unclear as to the outcome of Mr. Marino's appeals.
To date, Mr. Marino has not submitted to EOUSA the $8,960.00 search fee. Defs.' Statement of Facts ¶ 56; Brandon Decl. ¶ 19. 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's Complaint seeks some, but not all, of the records he originally requested. The Complaint alleges FOIA and Privacy Act violations resulted because Defendants failed to release the sealed records from Salemme, the verdict forms from Mr. Marino's criminal case, the four FBI tapes from 1989 concerning the Salemme attempted murder, and records generally relating to Mr. Marino by name or one of his aliases. It also asserts that Defendants violated the Sunshine Act by not disclosing records from meetings federal prosecutors held concerning the criminal prosecution of Mr. Marino. The Complaint does not allege that the responses to Mr. Marino's request for records pertaining to paranormal phenomena or his designation as a terrorist, militia member, or "sovereign citizen" violated any law. See Compl. To remedy Defendants' alleged FOIA, Privacy Act, and Sunshine Act violations, Mr. Marino asks for injunctive and monetary relief.
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). 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, Sanders v. Dep't of Justice, Civ. No. 10-5273, 2011 WL 1769099 (D.C.Cir. Apr. 21, 2011). The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990). The question is not whether other responsive records may exist, but whether the search itself was adequate. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994).
Thus, to rebut a challenge to the adequacy of a search, the agency must show that "the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C.Cir.1986)). Agencies are not required to search every record system, but agencies must conduct a good faith, reasonable search of those systems of records likely to possess the requested records. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990), overruled in part on other grounds, 79 F.3d 1172 (D.C.Cir.1996). An agency may prove the reasonableness of its search by a declaration by responsible agency officials, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Once an agency has provided such affidavits, the burden shifts back to the plaintiff to demonstrate the lack of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir.1993). If a review of the record raises substantial doubt as to the reasonableness of a search, especially in light of "well-defined requests and positive indications of overlooked materials," then summary judgment may be inappropriate. Founding Church of Scientology of Washington, D.C. v. NSA, 610 F.2d 824, 837 (D.C.Cir.1979).
The Privacy Act "safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records by allowing an individual to participate in ensuring that his records are accurate and properly used." Henke v. Dep't of Commerce, 83 F.3d 1453, 1456 (D.C.Cir.1996) (internal quotations and citations omitted). "To that end, the Act requires any agency which maintains a `system of records' to publish at least annually a statement in the Federal Register describing that system." Id.; 5 U.S.C. § 552a(e)(4). The Privacy Act ensures that an individual can access his or her records and request amendment of those records to correct any inaccuracies. 5 U.S.C. § 552a(d)(1)-(3). A civil action is available to correct an inaccurate record that an agency has refused to amend or an individual request with which an agency has not complied. 5 U.S.C. § 552a(g)(1)(A)-(B). While the Privacy Act generally permits the correction of facts, it does not allow for the "correction of opinions or judgments." McCready v. Nicholson, 465 F.3d 1, 19 (D.C.Cir.2006).
Congress enacted the Sunshine Act to ensure that the government "conduct[s] the public's business in public." Shurberg Broad. of Hartford, Inc. v. FCC, 617 F.Supp. 825, 828 (D.D.C.1985) (internal quotations and citations omitted). Its applicability, however, is limited. The Sunshine Act "clearly does not apply to agencies headed by a single individual." Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238, 243 (D.C.Cir.1981). Instead, it only covers agencies "headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency." 5 U.S.C. § 552b(a)(1).
Defendants contend that Mr. Marino has failed to state a claim under FOIA by failing to exhaust his administrative remedies. A motion to dismiss for failure to state a claim under Rule 12(b)(6) challenges the adequacy of a complaint on its face. In other words, it tests whether the plaintiff has properly stated a claim. In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir. 2007).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Yet a court need not accept as true legal conclusions set forth in a complaint. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine
Exhaustion of administrative remedies is required under FOIA before a party can seek judicial review. Stebbins v. Nationwide Mut. Ins. Co., 757 F.2d 364, 366 (D.C.Cir.1985); see also Oglesby, 920 F.2d 57, 61-62 (D.C.Cir.1990). Failure to comply with FOIA and agency regulations by filing a proper request "amounts to a failure to exhaust administrative remedies" and is properly considered on a motion to dismiss. Dale v. IRS, 238 F.Supp.2d 99, 103 (D.D.C.2002) (citing, inter alia, Gillin v. IRS, 980 F.2d 819 (1st Cir.1992)). This exhaustion requirement is a "`a jurisprudential doctrine' rather than a jurisdictional prerequisite," Skrzypek v. Dep't of Treasury, 550 F.Supp.2d 71, 73 (D.D.C.2008); if a plaintiff's administrative remedies have not been exhausted, "the matter is properly the subject of a motion brought under Rule 12(b)(6) for failure to state a claim upon which relief can be granted." Jones v. Dep't of Justice, 576 F.Supp.2d 64, 65-66 (D.D.C.2008).
Defendants contend that there is no genuine dispute as to any material fact and that they are entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505.
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); 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, 656 F.2d at 738; see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973) (requiring agencies to prepare
As an initial matter, the Court sua sponte dismisses with prejudice Mr. Marino's Sunshine Act cause of action. Regrettably, Defendants' briefing is devoid of any reference to the Sunshine Act. Nonetheless, Mr. Marino's claim under that Act is facially frivolous. The Sunshine Act only provides access to records from meetings of a "collegial body composed of two or more individual members." 5 U.S.C. § 552b(a)(1). It does not apply to DOJ, which is headed by a single individual, the Attorney General. See Nichols v. Reno, 931 F.Supp. 748, 753 (D.Colo.1996) (holding that the Sunshine Act is inapplicable to DOJ), aff'd, 124 F.3d 1376 (10th Cir.1997). See also Parravano v. Babbitt, 837 F.Supp. 1034, 1048 (N.D.Cal.1993) (explaining that the Sunshine Act does not apply to the Department of Commerce because it "is headed by a single person, not a collegial body"), aff'd, 70 F.3d 539 (9th Cir.1995). Mr. Marino's Sunshine Act claim must be dismissed with prejudice.
Defendants' briefing also fails to address Mr. Marino's Privacy Act claims. This error appears to have resulted from Defendants conflating Mr. Marino's Privacy Act claims with his FOIA claims. Such briefing, nonetheless, is insufficient. Accordingly, the Court denies without prejudice Defendants' Motion insofar as it seeks dismissal or summary judgment on Mr. Marino's Privacy Act claims.
As for Mr. Marino's FOIA claims, the Court also will deny Defendants' Motion albeit for differing reasons. The affidavits submitted with Defendants' motion do not state that the DOJ components to whom the FOIA requests were directed conducted adequate and reasonable searches calculated to discover the records Mr. Marino requested. SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 950-51.
As far as the record shows, OIP, OAG, and OEO failed to conduct any search in response to Mr. Marino's requests. Defendants contend that OIP "was not a direct recipient" of a FOIA request and therefore should be dismissed pursuant to FRCP 12(b)(6). Mot. to Dismiss or Summ. J. at 1 n.4. Similarly, Defendants argue that OAG never received a FOIA request from Mr. Marino, and therefore no search was necessary as Mr. Marino failed to exhaust his administrative remedies. Id. at 12-13. Defendants' briefing omits any argument concerning OEO's obligations. See Ex. F at 10. Defendants' exhibits, however, directly contradict these arguments. Attached to the Brandon Declaration are numerous FOIA requests from Mr. Marino to these components of DOJ. See Exs. D, E, G, H, I, and J. Defendants do not contend that Mr. Marino mailed his letters only to some of the recipients listed in his letters, nor do they claim that the letters were somehow
EOUSA and USAO-MA clearly received Mr. Marino's requests and USAO-MA conducted searches for responsive records, as directed by EOUSA. USAO-MA, however, did not complete its review of the records because Mr. Marino failed to pay in advance $8,960.00 in search fees. Defendants contend that EOUSA and USAO-MA should be granted summary judgment as to the FOIA claims because Mr. Marino has not established his entitlement to a fee waiver. Defendants' briefing, however, ignores the July 24, 2012 letter Mr. Marino sent to EOUSA in response to its July 13, 2012 request for more specificity as to the records Mr. Marino sought. In that letter, Mr. Marino revised his FOIA requests and expressly limited the search fees he was willing to incur to $1,000.00. Ex. L at 2. Ignoring this information, EOUSA continued to press Mr. Marino to pay $8,960.00 for the completion of USAO-MA's search. On November 20, 2012 and January 16, 2013, EOUSA informed Mr. Marino that he was required to pay $8,960.00, narrow his FOIA request, or designate a monetary cap for the search. See Exs. M, N. EOUSA never acknowledged the $1,000.00 maximum expenditure that Mr. Marino requested in July 2012.
There is no indication in the record that Mr. Marino could not have made a $1,000.00 advance payment or that he also would have sought a fee waiver for this amount. Indeed, Mr. Marino makes this point in his Opposition. He states that Defendants "ignored" his request for "a new search fee much less than the $8,960.00" estimated search cost. Opp'n at 4. Accordingly, Defendants' arguments, which strictly focus on Mr. Marino's eligibility for a fee waiver, are not relevant to the issue presented. The Court finds that EOUSA and USAO-MA did not establish that they conducted an adequate or reasonable search for responsive records.
CRIM and FBI acknowledge receiving FOIA requests from Mr. Marino, and CRIM states that it produced a handful of responsive records to Mr. Marino. The record, however, demonstrates that CRIM and FBI read Mr. Marino's FOIA in narrow and divergent ways. Mr. Marino requested documents generally pertaining to him and sealed documents from Salemme. CRIM construed the request as limited to records generally concerning Mr. Marino and conducted a search accordingly. FBI read the request as seeking only sealed documents from Salemme, informed Mr. Marino that it does not maintain sealed court documents, and never conducted any search. Neither agency has explained why it was appropriate to ignore half of Mr. Marino's FOIA request. The Court finds that CRIM and FBI failed to show that they conducted an adequate and reasonable search for responsive records.
For the foregoing reasons, the Court will deny Defendants' Motion for Dismissal or for Summary Judgment. The Court will dismiss sua sponte Mr. Marino's Sunshine Act claim with prejudice. Defendants' Motion as to the remaining claims is denied without prejudice. A memorializing Order accompanies this Memorandum Opinion.
