This matter is before the Court on Defendant's motion for summary judgment. Having considered Defendant's motion, Plaintiff's opposition, Defendant's reply, and the record in this case, the Court will grant Defendant's motion.
Pursuant to the Freedom of Information Act (FOIA"), 5 U.S.C. § 552, Plaintiff submitted requests for information to the Drug Enforcement Administration ("DEA"), a component of the United States Department of Justice. Plaintiff mailed a FOIA request to the DEA on March 25, 2000. Compl., ¶ 5; Defendant's Motion to Dismiss, Declaration of Leila I. Wassom ("Wassom Decl."), ¶¶ 4, 6 and Ex. A, C.*fn1 His request sought the arrest files of"coconspirators/government witnesses," DEA field reports, investigative reports, agent notes, and the amounts of money paid to each coconspirator/government witness for his assistance.*fn2 Compl., Attach. (FOIA Request). The DEA acknowledged receipt of Plaintiff's request by letter dated April 4, 2000. Wassom Decl., ¶ 5. Because Plaintiff requested information regarding third parties, the DEA instructed Plaintiff to provide proof of death or a privacy waiver for each person. Wassom Decl., ¶¶ 5, 7 and Ex. B, D. On June 6, 2000, Plaintiff appealed the DEA's response to the Justice Department's Office of Information and Privacy ("OIP"). Wassom Decl., ¶ 8 and Ex. E. The OIP remanded the matter, and directed the DEA to release non-exempt records pertaining to three third parties for whom Plaintiff supplied proof of death: Melvin Davis, Michael V. Brown, and Joseph C. Mathis.*fn3 The DEA opened a request file for each third party, assigned a number to each file, and began its search for responsive records. Wassom Decl., ¶ 11.
The DEA informed Plaintiff that Melvin Davis had not been the subject of a DEA investigation, but he was mentioned in three DEA files. Wassom Decl., ¶ 13 and Ex. I. The DEA notified Plaintiff that it would charge a search fee estimated at $112.00, and Plaintiff agreed to pay search fees. Wassom Decl., ¶ 14 and Ex. J (Letter from Plaintiff dated October 23, 2000). The DEA then conducted its search, and found 63 pages of records responsive to Plaintiff's FOIA request for information about Melvin Davis. Wassom Decl., ¶ 20. By letter dated June 8, 2001, the DEA notified Plaintiff that it would release records to him upon payment of $84.00. Wassom Decl. ¶ 19, and Ex. K. The DEA has not released these records because it has not received Plaintiff's payment.*fn4 Wassom Decl., 21.
Defendants move to dismiss the complaint on the ground that Plaintiff failed to exhaust his administrative remedies. A requester may seek judicial review of his FOIA request only after having exhausted all administrative remedies. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990). An agency may assess fees for the search for and duplication of documents requested under FOIA, and may require advance payment before processed records are released. 5 U.S.C. § 552(a)(4)(A); see 28 C.F.R. § 16.11 (2001)."Exhaustion [of administrative remedies] does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees." Oglesby v. Dep't of Army, 920 F.2d at 66; see also Trueblood v. Dep't of the Treasury, 943 F.Supp. 64, 68 (D.D.C. 1996). Commencement of a civil action pursuant to FOIA does not relieve a requester of his obligation to pay any required fees. See Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.), cert. denied, 516 U.S. 843 (1995). A FOIA suit is subject to dismissal for lack of subject matter jurisdiction if a plaintiff fails to exhaust all administrative remedies. See Dettmann v. United States Dep't of Justice, 802 F.2d 1472, 1477 (D.C.Cir.1986).
Plaintiff was aware that fees may be charged in connection with his FOIA request. The DEA notified Plaintiff that fees would be assessed, and informed him of the estimated search fee. When the DEA completed its search, it notified Plaintiff by letter dated June 8, 2001 of the balance due, provided instructions for making payment, and indicated its intention to forward the records to Plaintiff upon receipt of payment. Although Plaintiff did not receive the DEA's June 8, 2001 letter, Plaintiff now certainly is aware of his obligation to pay the search fee. Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, ¶ 5.
Because Plaintiff has not paid required fees in connection with his FOIA request, Plaintiff has not exhausted his administrative remedies. For this reason, the Court will dismiss this action. An order consistent with this Memorandum Opinion is issued this same date.
ROSEMARY M. COLLYER United States District Judge
For the reasons stated in the accompanying Memorandum Opinion, on this 22nd day of January 2003, it is hereby
ORDERED that Defendants' Motion to Dismiss [Dkt. #19] is GRANTED, and it is FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. This is a final ...