United States District Court, District of Columbia
Lowell Thomas Lakin, Forth Worth, TX, pro se.
Sean Joseph Vanek, U.S. Department of Justice, Washington, DC, for Defendant.
EMMET G. SULLIVAN, District Judge.
Plaintiff Lowell Thomas Lakin has sued the United States Department of Justice (" DOJ" or defendant) alleging violations of the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 and the Privacy Act, 5 U.S.C. § 552(a). Pending before the Court is defendant's motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies. In the alternative, the DOJ seeks summary judgment and asserts that there are no issues of material fact in dispute. For the reasons set forth below, defendant's motion for summary judgment will be GRANTED.
Plaintiff Lowell Thomas Lakin, who is currently incarcerated, sent a FOIA request on May 15, 2009 to the Executive Office for United States Attorneys (EOUSA) seeking records concerning himself. Def.'s Statement of Facts (" Def.'s SOF" ) ¶ 1. Specifically, plaintiff requested
any and all records contained within your system of records which either pertains to me or makes any reference to me in any way.
This request should be construed broadly to cover any and all records, whether generated by the United States Attorney for the Southern District of Illinois, or elsewhere, the Federal Bureau of Investigation, Homeland Security, or any other federal or State agency, whether specifically identified [by] me herein or not.
May 15, 2009 FOIA Request, ECF No. 11-4.
On September 8, 2009, EOUSA notified plaintiff that it was denying plaintiff's request because plaintiff had waived his right to request records pursuant to a February 24, 2008 plea agreement. Def.'s SOF ¶ 6. In that plea agreement, plaintiff stated that he " waive[d] all rights ... to request or receive from any Department or Agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitations, any records that may be sought under the [FOIA] or the Privacy Act of 1974...." Def.'s SOF ¶ 5. The EOUSA's letter informed plaintiff that he could file an administrative appeal with the Office of Information Policy (OIP) and that the appeal must be received within sixty days of EOUSA's September 8, 2009 letter. Def.'s SOF ¶ 7.
On November 17, 2009, OIP received a letter dated November 5, 2009 in which plaintiff sought to appeal the denial of his FOIA request. Def.'s SOF ¶ 8. On January 19, 2010, OIP notified plaintiff that it was closing plaintiff's appeal as untimely because the appeal was received ten days after the deadline for the appeal. Def.'s SOF ¶ 9. On February 1, 2010, plaintiff requested that the denial of his appeal be reconsidered, and the OIP denied that request on April 8, 2010. Def.'s SOF ¶ 10-11.
Defendant has moved to dismiss or, in the alternative, for summary judgment, alleging that the complaint fails to state a claim and that plaintiff has failed to exhaust his administrative remedies. Because the motion relies on materials outside the pleadings, the Court will construe defendant's motion as one for ...