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Ivey v. United States Department of Justice Executive Office for Us Attorneys

United States District Court, N.D. New York

February 6, 2015

KENNETH J. IVEY, Plaintiff,

KENNETH J. IVEY, Watertown Correctional Facility, Watertown, New York, Plaintiff pro se.

WILLIAM F. LARKIN, AUSA, OFFICE OF THE UNITED, STATES ATTORNEY, Syracuse, New York, Attorneys for Defendant.


MAE A. D'AGOSTINO, District Judge.


Plaintiff pro se Kenneth J. Ivey (hereinafter "Plaintiff"), an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), amended by the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, seeking records from the Executive Office for United States Attorneys ("EOUSA"), a component of the United States Department of Justice. See Dkt. No. 1.

Presently pending is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of Plaintiff's claim. See Dkt. No. 33.


On May 8, 2013, Plaintiff filed a FOIA request seeking "disclosure of all criminal bonds, bonding, or otherwise...." Dkt. No. 35 at 18. Randy Wilson, an employee of the U.S. Department of Justice ("DOJ"), sent Plaintiff a letter on May 31, 2013, informing him that his FOIA request had been referred to the DOJ office "most likely to have the records." Id. at 22. However, Plaintiff received no further correspondence from the DOJ regarding his initial FOIA request.

On June 28, 2013, Plaintiff filed an administrative appeal because he had not received further response to his May 8, 2013 request from the EOUSA. Dkt. No. 33-4 at 10. The Office of Information Policy ("OIP") informed Plaintiff in a letter dated August 8, 2013, that they received Plaintiff's administrative appeal on July 18, 2013. Id. at 11. Subsequently, OIP responded to Plaintiff's appeal on September 18, 2013, informing him that "EOUSA ha[d] no record of having received a FOIA request from [Plaintiff]...." Id. at 14. However, since Plaintiff included a copy of his request with the appeal, EOUSA opened a new FOIA request, and OIP informed Plaintiff that further inquiries about the request should be directed to EOUSA. Id. OIP also informed Plaintiff that his administrative appeal could not be processed because there had not "been an adverse determination" to his original request. Id.

As a result of OIP's referral of Plaintiff's initial request, on September 4, 2013, EOUSA informed Plaintiff that he "must provide a notarized example of his[] signature or a certification of identity under penalty of perjury[, ]" and that he must specify the U.S. Attorney's Office where he believed his requested records would be held. Id. at 12. On September 14, 2013, Plaintiff submitted a new FOIA request, which included a certificate of identity and his specification that responsive records were located in the Southern District of New York. Id. at 15. Plaintiff's request was received on September 30, 2013. Id.

On April 14, 2014, EOUSA informed Plaintiff that "[a] search for records located in... the Northen District of New York... revealed no responsive records regarding the above subject." Id. at 20. However, Plaintiff disputes that he received this final determination from EOUSA. Dkt. No. 35 at 11.

On August 1, 2013, before receiving a final determination from EOUSA, Plaintiff filed an action under 5 U.S.C. § 552. See Dkt. No. 1. He asks that this Court find EOUSA acted unlawfully by failing to respond to Plaintiff's FOIA request within the twenty day time frame. Dkt. No. 1 at 1.

Following EOUSA's final determination in April, Dkt. No. 33-4 at 20, Defendant submitted the motion for summary judgment currently before this Court. See Dkt. No. 33. Defendant supports its motion with declarations from Attorney Advisor David Lucyznski (hereinafter "Luczynski") with EOUSA, and Bernadette Markowski (hereinafter "Markowski"), a Legal Assistant for the United States Attorney's Office for the Northern District of New York ("NDNY"). Dkt. No. 33-4 at 1-6; Dkt. No. 33-5 at 1-3. Defendant claims that these declarations show that "EOUSA conducted a more than adequate search" for responsive records, which do not exist, and therefore Defendant is entitled to judgment as a matter of law. Dkt. No. 33-1 at 2.

Plaintiff's response in opposition to Defendant's motion argues that Defendant misstated Plaintiff's initial complaint. Dkt. No. 35 at 4. Plaintiff argues that the primary basis of his claim is Defendant's "fail[ure] to comply with the statutory provisional requirements of time[liness] set forth in 5 U.S.C. § 552(a)(6)(A)...." Id. at 8. Plaintiff also argues that Defendant violated 5 U.S.C. § 552(a)(7)(A), and ...

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