1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________ 

 )

DAVID J. MARCK, et al., ) 

 ) 

Plaintiffs, ) 

) 

 v. ) Civil Action No. 15-10 (RMC) 

 ) 

DEPARTMENT OF HEALTH AND ) 

HUMAN SERVICES, et al., ) 

 ) 

Defendants. ) 

_________________________________ )

MEMORANDUM OPINION 

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 
2 

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 

1. Mark Cocchiola 

2. Jack Gaglio 

3. Paul Lauriero 

4. Robert Quattrone 

5. George Vieira 

6. Paul Zambas 

7. Arthur Christensen 

8. Lawrence Fransen 

9. John Van Sickell 

10. Steven Venechanos 

11. Chris Lotito 

12. Chester Destefano 

13. Steven Fawcett 

Entities 

1. Suprema Specialties 

2. Whitehall Specialties 

3. A&J Foods, Inc. 

4. Hidden Valley Ranch 

5. Noble JG Cheese 

6. California Goldfield 

7. West Coast Commodities 

8. California Milk Market 

9. Wall Street Cheese 

10. LNN Enterprises 

11. A&J Cheese Company 

12. Lotito Foods 

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 

 

1

 All page-number references to the Hardy Declaration Exhibits, FBI’s Motion for Summary 

Judgment, and FBI’s Reply in Support of its Motion for Summary Judgment are to the electronic 

case filing (ECF) page number. 
3 

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 nonperson 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: 

 

2

 In order to receive records pertaining to a third-party individual, the requester “must provide 

one of the following: (1) an authorization and consent from the individual; (2) proof of death; or 

(3) a justification that the public interest in disclosure outweighs personal privacy.” Hardy Decl. 

¶ 6. 

3

 Destefano Foods, Roma Foods, Piancone Food Service, Inc., Capri Foods, and Marlboro Foods 

were all assigned FOIA request number 1321143-000. Id. ¶ 5. 
4 

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). 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 
5 

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 
6 

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. ANALYSIS 

As Mr. Marck does not challenge the adequacy of FBI’s search and only contests 

FBI’s failure to release six pages of records without redactions, the Court will assume the 

adequacy of the search and evaluate the exemptions claimed for the six pages at issue. 

A. Objections to Withholdings from Records 

In a FOIA action, a defendant must demonstrate that any information withheld 

from disclosure is exempt and that the agency segregated non-exempt materials. See 5 U.S.C. 

§ 552(a)(4)(B), (b). An agency may satisfy this burden by providing “a relatively detailed 

justification through the submission of an index of documents, known as a Vaughn Index, 

sufficiently detailed affidavits or declarations, or both.” Ctr. for Int’l Envtl. Law v. Office of the 

U.S. Trade Representative, 237 F. Supp. 2d 17, 22 (D.D.C. 2002) (internal quotations omitted); 

see also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Mr. Marck challenges the redactions 

on four pages (76, 79, 101, and 102) and the complete withholding of two pages (77 and 78). 

See Ex. U, Hardy Decl., Bates numbers Marck 76-79 and 101-02 [Dkt. 24-1] at 108-112. FBI 

applied Exemptions 3, 6, 7(C), and 7(D) to redactions and withholding made throughout those 

pages. 

1. Exemption (3) 

Under 5 U.S.C. § 552(b)(3), an agency must withhold records or information that 

is: 

specifically exempted from disclosure by statute (other than section 

552b of this title), if that statute— 

(A)(i) requires that the matters be withheld from the public in such 

a manner as to leave no discretion on the issue; or 
7 

(ii) establishes particular criteria for withholding or refers to 

particular types of matters to be withheld; and 

(B) if enacted after the date of enactment of the OPEN FOIA Act of 

2009, specifically cites to this paragraph. 

5 U.S.C. § 552(b)(3). FBI justifies withholding in their entirety pages 77 and 78 and all but three 

redactions in the remaining pages under Exemption 3 because the information is related to grand 

jury proceedings and protected by Rule 6(e) of the Federal Rules of Criminal Procedure.4

 “Rule 

6(e) applies if the disclosed material would ‘tend to reveal some secret aspect of the grand jury’s 

investigation,’ including ‘the identities of witnesses or jurors, the substance of testimony, the 

strategy or direction of the investigation,’ or ‘the deliberations or questions of jurors.’” Hodge v. 

FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (quoting Senate of the Commonwealth of Puerto Rico v. 

DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987)). 

FBI explains that the information redacted or withheld under Exemption 3 

contains the name and identifying information of “a third party individual who . . . received a 

Federal Grand Jury subpoena” and that “[d]isclosure would reveal the private, inner workings of 

this Federal Grand Jury by disclosing who the Federal Grand Jury targeted as being likely to 

have relevant information.” Hardy Decl. ¶ 36. Additionally, the information identifies the third 

party individual’s role in relation to the crime being investigated and, if disclosed, would allow 

Mr. Marck to identify the individual. Id. Mr. Marck challenges FBI’s argument that revealing 

the redacted information would disclose the private, inner workings of the federal grand jury, 

 

4

 “[A]lthough a rule is not generally considered to be a statute, [Rule 6(e) of the Federal Rules of 

Criminal Procedure] qualifies as one under FOIA because the Congress has enacted it into 

positive law.” Murphy v. Exec. Office for United States Attorney, 789 F.3d 204, 206 (D.C. Cir. 

2015) (citing Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 

867-68 (D.C. Cir. 1981)); see also Pub. L. No. 95-78, § 2(a), 91 Stat. 319 (1977) (enacting 

Federal Rule of Criminal Procedure 6(e) into positive law). 
8 

arguing that FBI’s contention that the documents “were produced or created as the result of a 

grand jury proceeding” is insufficient to justify withholding under Exemption 3. Opp’n at 8. He 

further argues that because he and his clients can predict the name of the individual whose 

interview is the subject of the redacted documents, withholding is not justified because the 

identity of the individual “is no secret.” Id. at 9. 

Exemption 3 protects grand jury information when the material would “tend to 

reveal some secret aspect of the grand jury’s investigation, including the identities of witnesses 

or jurors, the substance of testimony, the strategy or direction of the investigation, or the 

deliberations or questions of jurors.” Hodge, 703 F.3d at 580 (internal quotations omitted); see 

also Fund for Constitutional Gov’t, 656 F.2d at 869-70 (“Potential witnesses and potential 

documentary exhibits [in a grand jury proceeding], while less clearly within the rule, if disclosed 

would reveal the direction and strategy of the investigation.”); Boehm v. FBI, 983 F. Supp. 2d 

154, 157-60 (D.D.C. 2013). FBI explained that the withheld information includes the identity of 

a subpoenaed witness, as well as the information provided by that witness, which would enable 

others to identify him or her and disclose the substance of the testimony that individual gave or 

intended to give the grand jury. Therefore, the withholding of pages 77 and 78, and the 

redactions made under Exemption 3, constitute grand jury information that must be excluded 

from FOIA release. The fact that Mr. Marck believes he already knows the name of the thirdparty individual whose identity is being protected does not remove the mandatory protections 

provided to grand jury information. FBI has adequately shown that its withholdings and 

redactions under Exemption 3 were appropriate. Mr. Marck has produced no evidence of bad 

faith which might call FBI’s arguments into question. 
9 

2. Exemptions 6 and 7(C) 

Exemption 6 protects from disclosure “personnel and medical files and similar 

files the disclosure of which would constitute a clearly unwarranted invasion of personal 

privacy.” 5 U.S.C. § 552(b)(6). “The term ‘similar files’ is broadly interpreted, such that 

Exemption 6 protects from disclosure all information that ‘applies to a particular individual’ in 

the absence of a public interest in disclosure.” Lardner v. DOJ, 638 F. Supp. 2d 14, 23 (D.D.C. 

2009) (quoting Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)). The threshold 

is “fairly minimal,” and “[a]ll information which applies to a particular individual is covered by 

Exemption 6, regardless of the type of file in which it is contained.” Washington Post Co. v. 

HHS, 690 F.2d 252, 260 (D.C. Cir. 1982) (quoting State v. Washington Post, 456 U.S. at 602) 

(internal quotation marks omitted). 

Exemption 6 requires “a balancing of the individual’s right of privacy against the 

preservation of the basic purpose of the Freedom of Information Act to open agency action to the 

light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976); see also DOJ 

v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). The privacy interest at 

stake belongs to the individual, not the agency. See Reporters Comm., 489 U.S. at 763-65; Nat’l 

Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting an 

individual’s significant privacy interest “in avoiding the unlimited disclosure of his or her name 

and address”). It is the requester’s obligation to articulate a significant public interest sufficient 

to outweigh an individual’s privacy interest. See Nat’l Archives & Records Admin. v. Favish, 

541 U.S. 157, 172 (2004). 

Similarly, Exemption 7(C) protects from disclosure information in law 

enforcement records that “could reasonably be expected to constitute an unwarranted invasion of 
10 

personal privacy.” 5 U.S.C. § 552(b)(7)(C).5

 Courts apply a balancing test to determine whether 

personal information is exempt under 7(C). Courts “balance the privacy interests that would be 

compromised by disclosure against the public interest in release of the requested information.” 

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (internal citations 

omitted). 

 FBI claims that the three remaining redactions are justified under Exemptions 6 

and 7(C) because they include the “names and identifying information of FBI Special Agents.”6 

Hardy Decl. ¶ 43. FBI further explains that the special agents were responsible for “conducting 

interviews, coordinating with other law enforcement officials, and compiling the resulting 

information, as well as reporting on the status of the investigation”; and “[p]ublicity . . . 

regarding any particular investigation to which they have been assigned may seriously prejudice 

their effectiveness” or “result in reasonable but nonetheless serious disturbances to . . . their 

lives.” Id. ¶¶ 43-44. Mr. Marck argues that balancing the privacy interests against the “public 

interest in free and open information about potential Government misconduct” requires 

disclosure. Opp’n at 10. 

Courts routinely permit law enforcement agencies to redact the names and 

identifying information of their agents. See, e.g., Lesar v. DOJ, 636 F.2d 472, 487-88 (D.C. Cir. 

1980); Ford v. DOJ, 208 F. Supp. 3d 237, 250-51 (D.D.C. 2016). The only relevant public 

 

5

 Law enforcement records include both criminal and civil investigatory and non-investigatory 

materials. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002); North v. Walsh, 881 F.2d 

1088, 1098 (D.C. Cir. 1989). The investigation at issue in this case was conducted by FBI into 

potential fraud and, therefore, was conducted for law enforcement purposes. See Jefferson v. 

DOJ, 284 F.3d 172, 176-77 (D.C. Cir. 2002). 

6

 Due to the similarity between the standards for Exemption 6 and 7(C), the Court will consider 

them together. If the redactions satisfy the Exemption 7(C) test, there is no need to 

independently consider Exemption 6. 
11 

interest for purposes of Exemption 7(C) is that of shedding light on the agency’s performance of 

its statutory duties. Davis v. DOJ, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (citing Reporters 

Comm., 489 U.S. at 773). To obtain disclosure of private information, a FOIA requester must at 

a minimum “produce evidence that would warrant a belief by a reasonable person that the 

alleged Government impropriety might have occurred.” Favish, 541 U.S. at 174; see also 

Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011). Otherwise, the balancing requirement 

simply does not come into play. Favish, 541 U.S. at 175. “Unsubstantiated assertions of 

government wrongdoing . . . do not establish a meaningful evidentiary showing.” Boyd v. 

Criminal Div. of the Dep’t of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007) (citing Favish, 541 

U.S. at 175). 

Mr. Marck argues that the privacy interests at issue are outweighed by the “public 

interest in uncovering Government misconduct; specifically that, contrary to information 

repeated throughout Mr. Cocchiola’s trial, the government was investigating Suprema [Mr. 

Cocchiola’s company] long before . . . December 2001.” Opp’n at 11. Mr. Marck contends that 

the redacted pages “relate[] to Mr. [Steven] Fawcett’s cooperation with the government prior to 

December 19, 2001” and that from those documents “it can . . . be inferred that Mr. Fawcett 

traded information about Suprema—truthful or otherwise—for lenient treatment by the 

Government with respect to [his] own fraudulent scheme.” Id. Mr. Marck speculates that, 

through a suspicious deal with Mr. Fawcett, government misconduct occurred in the 

investigation and prosecution of Mr. Cocchiola, but provides no evidence that “warrant[s] a 

belief by a reasonable person” that any misconduct occurred. Favish, 541 U.S. at 174. His 

assumption that the redacted documents will show that Mr. Fawcett cooperated with the 

government prior to the date its investigation began is just that, an assumption. Additionally, 
12 

Mr. Marck provides no reason to believe that even if the document does show that Mr. Fawcett 

was interviewed prior to December 2001, it leads to the conclusion that FBI engaged in 

misconduct. Because “[u]nsubstantiated assertions of government wrongdoing . . . do not 

establish a meaningful evidentiary showing” sufficient to overcome the privacy interests 

protected by Exemption 7(C), Boyd, 475 F.3d at 388, Mr. Marck has not raised a sufficient 

challenge to the privacy interests at issue here and FBI’s withholdings and redactions under 

Exemptions 6 and 7(C) are justified. 

FBI also redacted information to protect the names and/or identities of third 

parties who “came into contact with the subjects of the investigations,” including third parties 

merely mentioned, third parties who provided information to the FBI, and commercial institution 

personnel. Mot. at 16; see also Hardy Decl. ¶¶ 31, 45-48. These individuals “were not of 

investigative interest to the FBI”; therefore, FBI argued that “[d]isclosure of these third parties’ 

names and identifying information in connection with the FBI’s investigation of criminal 

activities carries an extremely negative connotation.” Mot. at 16. Because this information is 

also covered by Exemption 3, the Court’s analysis will be brief. Third parties involved in law 

enforcement investigations have a strong privacy interest. See, e.g., Reporters Comm., 489 U.S. 

at 773 (holding that public interest is “not fostered by disclosure of information about private 

citizens that is accumulated in various governmental files but that reveals little or nothing about 

an agency’s own conduct”); Comput. Prof’ls for Social Responsibility v. U.S. Secret Serv., 72 

F.3d 897, 905 (D.C. Cir. 1996); Mack v. Dep’t of Navy, 259 F. Supp. 2d 99, 106-08 (D.D.C. 

2003). Mr. Marck fails to provide more than a speculative public interest and, therefore, cannot 

overcome the privacy interest of the third parties and commercial institution personnel. 
13 

3. Exemption 7(D)7

Exemption 7(D) protects from disclosure those records or information compiled 

for law enforcement purposes that: 

could reasonably be expected to disclose the identity of a 

confidential source . . . [who] furnished information on a 

confidential basis, and, in the case of a record or information

compiled by a criminal law enforcement authority in the course of a 

criminal investigation . . . , information furnished by a confidential 

source. 

5 U.S.C. § 552(b)(7)(D). A source’s confidentiality is determined on a case-by-case basis, and a 

court must determine “whether the particular source spoke with an understanding that the 

communication would remain confidential.” DOJ v. Landano, 508 U.S. 165, 172 (1993). “A 

source is confidential within the meaning of exemption 7(D) if the source provided information 

under an express assurance of confidentiality or in circumstances from which such an assurance 

could be reasonably inferred.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995). The 

nature of the investigation and the informant’s relation to it are the most important factors in 

determining whether implied confidentiality exists. Landano, 508 U.S. at 179-80. 

FBI redacted the “name, identifying information about, and information provided 

by a third party” who “provided accurate and reliable information concerning the activities of 

subjects who were of investigative interest to the FBI or other law enforcement agencies.” 

Hardy Decl. ¶ 52. FBI “inferred that the individual provided information to the FBI only 

because they believed their cooperation with, and the information they provided, would remain 

confidential.” Id. Based on the individual’s relationship to the targets, FBI argues that “[t]he 

 

7

 All of the information protected by FBI under Exemption 7(D) was also protected under 

Exemptions 3, 6, and 7(C). Therefore, even if Exemption 7(D) were found not to apply, all of 

the information was properly withheld under another exemption. 
14 

disclosure of the identity of this source and the information provided could have disastrous 

consequences because disclosure could subject the third party, as well as their family, to 

embarrassment, humiliation, and/or physical or mental harm.” Id. Mr. Marck argues that 

Exemption 7(D) only applies if FBI demonstrates that the source was provided an express grant 

of confidentiality, or provides “evidence supporting a determination that the particular source 

spoke with an understanding that the communication would remain confidential.” Opp’n at 13 

(internal citation omitted). Inferring that the source believed the information was protected, Mr. 

Marck states, is not sufficient. 

Mr. Marck correctly argues that an agency must do more than simply state that a 

source provided information on a confidential basis. See Citizens for Responsibility & Ethics in 

Washington v. DOJ, 746 F.3d 1082, 1101 (D.C. Cir. 2014). However, implied or inferred 

assurances of confidentiality are also recognized by the D.C. Circuit. See Williams, 69 F.3d at 

1159. If an agency does not “present probative evidence that the source did in fact receive an 

express grant of confidentiality,” then it must “point to more narrowly defined circumstances that 

support the inference of confidentiality.” Citizens for Responsibility & Ethics in Washington, 

746 F.3d at 1101. Courts in this Circuit consider four factors in assessing implied assurances of 

confidentiality: 

the character of the crime at issue, the source’s relation to the crime, 

whether the source received payment, and whether the source has an 

ongoing relationship with the law enforcement agency and typically 

communicates with the agency only at locations and under 

conditions which assure the contact will not be noticed. 

Roth v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011). 

The crimes at issue included conspiracy to defraud the United States; bank fraud; 

fraud by wire, radio, or television; and securities violations. See Ex. A, Opp’n [Dkt. 26-3] at 3. 

The investigation resulted in criminal convictions and a sentence for Mr. Cocchiola of 180 
15 

months’ incarceration. See Opp’n at 3. The seriousness of the offense and the resulting 

punishment weigh in favor of finding cooperator confidentiality. Additionally, Mr. Hardy’s 

declaration specifically describes the close relationship between the source and the target, 

explaining that the source was “in a position to have ready access to and/or knowledge about 

targets and others involved in fraudulent activities.” Hardy Decl. ¶ 52. Finally, the source was 

subpoenaed to testify before the grand jury, which supports a finding of implied confidentiality 

to the pre-subpoena information he gave to FBI. The Court, therefore, finds that the information 

was properly withheld under Exemption 7(D). 

B. Segregability 

If a record contains information that is exempt from disclosure, any reasonably 

segregable information must be released after deleting the exempt portions, unless the nonexempt portions are inextricably intertwined with exempt portions. See 5 U.S.C. § 552(b); see 

also Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999). 

A court errs if it “simply approve[s] the withholding of an entire document without entering a 

finding on segregability, or the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 

1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v. Dep’t of the Army, 611 F.2d 

738, 744 (9th Cir. 1979)). To demonstrate that all reasonably segregable material has been 

released, the agency must provide a detailed justification rather than conclusory statements. 

Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). 

Mr. Marck argues that the extent of the redactions on pages 76-79 and 101-102 

demonstrate that FBI failed to segregate non-exempt information. He points specifically to 

pages 77 and 78, which were withheld in full. See Opp’n at 14. FBI responds that it “took 

seriously its obligation to segregate material that could be released from material that must be 

withheld under the applicable Exemptions.” Reply at 2-3. 
16 

To enable a court to perform a review of segregability the agency must provide 

“not only a detailed justification of the reasons for withholding information, but also a 

description of the document from which the information was redacted.” Chesapeake Bay 

Found., Inc. v. U.S. Army Corps of Eng’rs, 677 F. Supp. 2d 101, 109 (D.D.C. 2009); see also 

Mead Data Cent., 566 F.2d at 260-61. In his declaration, Mr. Hardy describes how the six pages 

were processed to determine if non-exempt information were segregable from that protected by 

an exemption. For the pages redacted in part, he explains that the “pages comprise a mixture of 

material that would be segregated for release and material that was withheld as release would 

trigger foreseeable harm to one or more interests protected by the cited FOIA exemptions.” 

Hardy Decl. ¶ 54(A). As to the two pages withheld in full, he explains that any “non-exempt 

information on these pages was so intertwined with exempt material, that no information could 

be reasonably segregated for release” and that “[a]ny further segregation of this intertwined 

material would employ finite resources only to produce disjointed words, phrases, or sentences, 

that taken separately or together, would have minimal or no informational content.” Id. ¶ 54(B). 

“FOIA requires only separation of what is reasonably segregable, permitting the agency to avoid 

committing significant time and resources to the separation of disjointed words, phrases, or even 

sentences which taken separately or together have minimal or no information content.” 

Wadelton v. Dep’t of State, 106 F. Supp. 3d 139, 155 (D.C. Cir. 2015). While Mr. Marck may 

desire fewer redactions, the Court finds that FBI has adequately explained that all segregable 

information has been provided and only exempt information was redacted. 

C. In Camera Review 

Trial courts are afforded broad discretion to “examine the contents of” requested 

records “in camera to determine whether such records or any part thereof shall be withheld.” 5 

U.S.C. § 552(a)(4)(B); see also Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998). 
17 

However, “‘[i]f the affidavits provide specific information sufficient to place the documents 

within the exemption category, if this information is not contradicted in the record, and if there is 

no evidence in the record of agency bad faith, then summary judgment is appropriate without in 

camera review of the documents.’” Quiñon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) 

(quoting Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979)). 

Mr. Marck asks the Court to review in camera the six pages of records at issue to 

determine if FBI properly applied the FOIA exemptions and if there is non-exempt information 

that should be released. Because this case is not one where the agency’s declarations are 

“‘insufficiently detailed to permit meaningful review of exemption claims,’” in camera review is 

unnecessary. Plunkett v. DOJ, No. 11-341, 2015 WL 5159489, at *12 (D.D.C. Sept. 1, 2015) 

(quoting Quiñon, 86 F.3d at 1228) (declining in camera review because agency’s affidavits 

sufficiently explained its reasons for redacting information under FOIA exemptions). 

IV. CONCLUSION 

For the foregoing reasons, the Court will grant FBI’s motion for summary 

judgment and deny Mr. Marck’s motion for in camera review. A memorializing Order 

accompanies this Opinion. 

Date: June 5, 2018 /s/ 

 ROSEMARY M. COLLYER 

 United States District Judge