The opinion of the court was delivered by: John D. Bates United States District Judge
This matter is before the Court on defendant's motion for summary judgment.*fn2 Having considered the motion, plaintiff's opposition thereto and the entire record of the case, defendant's motion will be granted.
Plaintiff was arrested on June 18, 1992, and a grand jury indictment setting forth two charges against him was filed on June 30, 1992 "in the [United States District Court for the Southern District of New York], docket entry No. 62." Compl. at 5. A superseding indictment was filed "[o]n September 1, 1992, docket entry No. 80." Id. Subsequently, "[o]n April 15, 1993, [plaintiff] and twenty-two others were charged in a thirteen count superseding indictment charging various narcotics and firearms offenses." Jimenez v. United States, No. 96-cv-8679, 1998 WL 184339, at *1 (S.D.N.Y. Apr. 2, 1998).*fn3 This superseding indictment "was recorded upon the [court's] docket, docket entry No. 128," Compl. at 5, and set forth three charges against plaintiff in Counts One (conspiring to distribute and possession with intent to distribute crack cocaine), Two (engaging in a continuing criminal enterprise) and Eleven (using and carrying a firearm during and in relation to drug trafficking crimes). Jimenez, 1998 WL 184339, at *1. According to the plaintiff, this "EXISTENT and PUBLIC superseding indictment," see Compl., App. A (excerpt from docket sheet),*fn4 "was STOLEN" by the prosecutors and in its place a forged third superseding indictment was filed with the Clerk of Court, also as docket entry 128. Id. at 7 (emphasis in original); see id. at 1, 9 (alleging that "the existence and public superseding indictment . . . is being hidden in the U.S. Attorney [sic] Office for the S.D.N.Y.'s secrect [sic] files") (emphasis in original); see also id., App. B ( alleged forged indictment).*fn5 Ultimately, "[o]n October 25, 1993, plaintiff was convicted upon three counts . . . which were illegally charged in the forged third superseding indictment," and he now is serving a term of life imprisonment. Id. at 6.*fn6
A. FOIA Request No. 08-3341
On September 9, 2008, plaintiff submitted a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the Executive Office for United States Attorneys ("EOUSA"), a component of the United States Department of Justice ("DOJ"), for the following information:
The grand jury superseding indictment which was recorded upon the U.S. District Court for the S.D.N.Y.'s computer docket on April 15, 1993, docket entry No. 128 . . . in the possession of the U.S. Attorney [sic] Office for the S.D.N.Y., thus the legal indictment . . . prepared substantially to be relied upon in agency decisionmaking.
Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. and in Opp'n to Pl.'s "Mot. to Clarify Pl.'s Expungement Claim Presented in his Lawsuit" ("Def.'s Mem."), Boseker Decl., Ex. A (FOIA Request) at 2. The EOUSA received the request on October 1, 2008, Boseker Decl. ¶ 6, and the matter was assigned a tracking number, FOIA Request No. 08-3341, Def.'s Mem., Boseker Decl., Ex. B (Letter to plaintiff from William G. Stewart II, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated October 8, 2008) at 1.
A search of records maintained by the United States Attorney's Office for the Southern District of New York ("USAO/SDNY") yielded 17 boxes of records from which staff "retrieved and copied all the indictments and superseding indictments . . . found in the case file." Def.'s Mem., Smith Decl. ¶ 7. The "EOUSA released 26 pages of these indictments in their entirety." Id., Boseker Decl. ¶ 10; see id., Ex. D (Letter to plaintiff from W.G. Stewart II dated November 18, 2008); Compl., Addendum A (same).
Dissatisfied with this response, plaintiff brought an administrative appeal before the DOJ's Office of Information Policy ("OIP"). Compl. ¶ 3. According to plaintiff, the EOUSA released documents that he had not requested. Def.'s Mem., Boseker Decl., Ex. E (FOIA Appeal dated November 25, 2008) at 3. Rather than the "original indictment which was filed . . . on June 30, 1992, docket entry No. 62," and the "'alleged' 'superseding indictment'" which was filed . . . on September 1, 1992, docket entry No. 80," plaintiff "SPECIFICALLY . . . requested a copy of the legal and public superseding indictment which was recorded upon the U.S. District Court for the S.D.N.Y.'s computer docket on April 15, 1993, docket entry No. 128." Id. (emphasis in original). He reiterated his demand for the release of the document he requested. Id. at 4. The OIP determined that the "EOUSA's response was correct and that it conducted an adequate, reasonable search for records responsive to [his] request." Id., Ex. G (Letter to plaintiff from Janice Galli McLeod, Associate Director, OIP, dated September 22, 2009, regarding Appeal No. 99-0556); Compl., Addendum B (same).
B. FOIA Request No. 08-4421
On December 9, 2008, plaintiff sent to the EOUSA a "request . . . to remove from . . . the U.S. Attorney [sic] Office for the S.D.N.Y. and the U.S. District Court for the S.D.N.Y.'s files, a forged agency record third superseding indictment S-3." Def.'s Mem., Boseker Decl., Ex. H (Request for Expungement of a Forged Agency Record Third Superseding Indictment S-3 dated December 9, 2008). The EOUSA interpreted this request as one under the FOIA for release of agency records and under the Privacy Act, 5 U.S.C. § 552a, for amendment of agency records. Id., Boseker Decl. ¶¶ 16-17. The EOUSA assigned the matter a tracking number, FOIA Request No. 08-4421. Id. ¶ 18.
The EOUSA closed plaintiff's request on two grounds. Def.'s Mem., Boseker Decl. ¶ 18. First, it found that the FOIA "only applies to records already in existence and does not require an agency to conduct [re]search, create new records, or answer questions presented as FOIA requests." Id., Boseker Decl. ¶ 18; Compl., Addendum C (Letter to plaintiff from W.G. Stewart II dated January 8, 2009) at 1. Second, citing 28 C.F.R. § 16.81(a)(4), the EOUSA denied plaintiff's request for amendment of records because "criminal case files maintained by United States Attorneys' Offices are exempt from amendment-of-records provisions of the Privacy Act." Def.'s Mem., Boseker Decl. ¶ 18.
Plaintiff appealed this response to the OIP, and the OIP affirmed the agency's determination with respect to the FOIA request. Compl., Addendum D (Letter to plaintiff from J.G. McLeod dated August 10, 2009). Because the Office of Privacy and Civil Liberties ("OCPL") handled administrative appeals for expungement of agency records, the OIP forwarded plaintiff's appeal to that office for adjudication. See id. OCPL closed the administrative appeal "[i]nasmuch as this matter is presently the subject of judicial review." Notice [Dkt. #15], App. A (Letter to plaintiff from Kirsten J. ...