Opinion

Carlborg v. Department of Navy

Court: District Court, S.D. California
Filed: Jul 17, 2025
Cited by: 0 cases
Authority: More cited than 38.0%

“Zemansky discussed 7 the search burden in a FOIA case, but the same standard applies to Privacy Act cases.”

How later courts described this case

“Zemansky discussed 7 the search burden in a FOIA case, but the same standard applies to Privacy Act cases.”
“The identity of one or two individual relatively 12 low-level government wrongdoers, released in isolation, does not provide information 13 about the agency’s own conduct.”
“[B]y agreeing to 10 || limit the Court’s involvement to deciding the parties’ dispute about [the agency’s] 11 || withholdings, [plaintiff] knowingly and voluntarily waived all other issues it might 12 ||reasonably have anticipated”
“Having 15 voluntarily narrowed the case to a set of agreed-upon issues, the plaintiff may be said to 16 have waived the others.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ROBERT S. CARLBORG, Case No.: 3:23-cv-02073-RBM-AHG

Plaintiff,

ORDER GRANTING DEFENDANTS’

v. MOTION FOR SUMMARY

12 JUDGMENT

DEPARTMENT OF NAVY and

13 DEPARTMENT OF DEFENSE,

[Doc. 22]

14 Defendants.

16 This action is brought under the Freedom of Information Act, 5 U.S.C. § 552 et seq.

17 (“FOIA”), and the Privacy Act of 1974, 5 U.S.C. § 552a et seq. Plaintiff Robert S. Carlborg

18 (“Plaintiff”), proceeding pro se, filed a Complaint against two federal agencies, the

19 Department of Navy and the Department of Defense (collectively, “Defendants”), based

20 on alleged violations of his right to access certain records (“Complaint”). (Doc. 1.)

21 Pending before the Court is Defendants’ Motion for Summary Judgment (“MSJ”).

22 (Doc. 22.) In the MSJ, Defendants argue that: (1) certain claims are barred under res

23 judicata; (2) their searches in response to Plaintiff’s requests were reasonable; and (3)

24 certain information was properly withheld under FOIA’s statutory exemptions. (Id. at 7.)1

25 Plaintiff filed an Opposition to the MSJ (“Opposition”) (Doc. 24), and Defendants filed a

1 The Court cites the paragraph numbers of the Complaint and the CM/ECF electronic

1 Reply (“Reply) (Doc. 25).

2 The Court finds the matter suitable for determination without oral argument pursuant

3 to Civil Local Rule 7.1(d)(1). For the reasons discussed below, Defendants’ MSJ is

4 GRANTED.

5 I. BACKGROUND2

6 Since 2016, Plaintiff has submitted numerous FOIA and Privacy Act requests for

7 records related to his involuntary discharge from the military in 2015. (Doc. 22 at 7.)

8 Several of these requests were the subject of litigation before the United States District

9 Court, District of Columbia captioned Carlborg v. Dep’t of the Navy, Case No. 1:18-cv-

10 1881 (DLF) (D.D.C. Aug. 10, 2018) (“Carlborg I”).3 Because Plaintiff’s legal challenges

11 in Carlborg I are pertinent to the resolution of the MSJ, the Court summarizes two of

12 Plaintiff’s requests at issue in Carlborg I and the resulting proceedings.

13 A. FOIA Requests From 2016–2018

14 Between 2016 and 2018, Plaintiff submitted several FOIA and Privacy Act requests

15 to Defendant Department of Navy (“Defendant Navy”). (Doc. 22-5, Ex. 5, Memorandum

16 Opinion in Carlborg I [“D.C. Order”] at 114.) The following two requests are particularly

17 relevant to the instant litigation.

18 1. The 2016 FOIA Request

19 On February 21, 2016, Plaintiff submitted a FOIA request for “a copy of any e-mail

20 sent or received between [nine officers] during the periods 30 Jun 2014–9 Oct 2015

23 2 This background section is taken from the Complaint, the Parties’ briefing, and the

judicially noticed court filings (see infra n.3). It is intended solely to provide context and

does not state the undisputed facts of the case. The facts material to Defendants’ MSJ,

25 disputed or undisputed, are discussed infra where appropriate.

3 The Court GRANTS Defendants’ Request for Judicial Notice (Doc. 22-4) and takes

27 judicial notice of the six court documents filed in Carlborg I (Doc. 22-5, Exs. 1–6). See

Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of a state court

1 regarding the conduct of the[ir] handling of” Plaintiff’s disciplinary case (the “2016 FOIA

2 Request”).4 (Doc. 22-3, Ex. 1 at 12–13; see D.C. Order [Doc. 22-5, Ex. 5] at 114.)

3 The Staff Judge Advocate for the Second Marine Expeditionary Force (“II-MEF”)

4 processed the 2016 FOIA Request and submitted an internal request for this data to the

5 Marine Corps Cyber Operations Group5 (“MCCOG”). (See Doc. 22-5, Ex. 2 at 11.) The

6 MCCOG searched the nine individuals’ e-mails for the specified time frame using the

7 search term “Carlborg.” (D.C. Order [Doc. 22-5, Ex. 5] at 117 (citation omitted).) It then

8 uploaded the results of that search onto a compact disc (the “2016 CD”). (See Doc. 22-5,

9 Ex. 2 at 11.) The II-MEF reviewed the records for information subject to withholding,

10 applied certain redactions, and released the redacted records to Plaintiff. (Id.)

11 2. The 2017 FOIA Request

12 On August 9, 2017, Plaintiff filed another FOIA request for “emails to or from [an]

13 officer that mentioned ‘Carlborg’ between March 1, 2015, and October 31, 2015,” as well

14 as responses to such emails (the “2017 Request”). (D.C. Order [Doc. 22-5, Ex. 5] at 115

15 (citations omitted).) The agency collected the officer’s “.pst” file, which stores “copies of

16 messages, calendar events, and other items within Microsoft software, such as Microsoft

17 Outlook.” (Id. at 115 (citation omitted).) After withholding certain information under 5

18 U.S.C. § 552(b)(5)–(6), the agency produced such records to Plaintiff. (Id.)

19 B. Carlborg I

20 On August 10, 2018, Plaintiff filed a civil action in the United States District Court,

21 District of Columbia (“D.C. Court”) challenging Defendant Navy’s responses to several

22 requests, including the 2016 and 2017 FOIA Requests. (Id. at 114.) There, Plaintiff alleged

23 that Defendant Navy improperly withheld certain materials responsive to the 2017 FOIA

4 The 2016 FOIA Request was assigned the tracking number DON-USMC-2016-003723.

(D.C. Order [Doc. 22-5, Ex. 5] at 117.)

5 The MCCOG was formerly known as the Marine Corps Network Operations and Security

1 Request and conducted inadequate searches in response to his requests, including the 2016

2 FOIA Request. (Id. at 114–17.) Plaintiff moved for partial summary judgment and

3 Defendant Navy filed a cross motion for summary judgment. (Id. at 114.)

4 On August 10, 2020, the D.C. Court granted summary judgment in favor of

5 Defendant Navy. (Id. at 114, 131.) As relevant to this action, the D.C. Court held that

6 Defendant Navy conducted an adequate search for records responsive to the 2016 FOIA

7 Request and properly invoked two statutory exemptions to withhold records responsive to

8 the 2017 FOIA Request. (Id. at 123–25, 128–130.) The D.C. Court also denied Plaintiff’s

9 request for an in camera review of the 2016 CD. (Id. at 124–25.) It reasoned that the

10 record did not contain evidence to support Plaintiff’s speculative claims that “someone

11 could have ‘manipulated, redacted and eliminate[d] files or documents unfavorable’ to

12 [Defendant] Navy before the material was processed under FOIA.” (Id. at 124.) On

13 Plaintiff’s appeal, the United States Court of Appeals for the District of Columbia Circuit

14 affirmed summary judgment in favor of Defendant Navy. (Doc. 22-5, Ex. 6 at 132–34.)

15 C. Recent Requests

16 Several months after the D.C. Court’s judgment, Plaintiff filed thirteen additional,

17 but related, FOIA and Privacy Act requests which are the subject of the present litigation.

18 (See Compl. ¶¶ 8–11.) In these Requests, Plaintiff seeks records from Defendants and their

19 component agencies including the United States Marine Corps (“USMC”), the Board for

20 Corrections of Naval Records (“BCNR”), and the Office of the Secretary of Defense

21 (“OSD”). (Id. ¶¶ 5–7.)

22 1. FOIA Requests 1, 3, and 4

23 On February 9, 2020, Plaintiff submitted a FOIA request “for a copy of e-mail

24 records pertaining to him” (“FOIA Request 1”). (Id. ¶ 12.) Defendants provided 161 pages

25 with redactions based on two statutory exemptions. (Id. ¶ 14.) Plaintiff filed an

26 administrative appeal challenging Defendants’ withholdings under such exemptions,

27 which was subsequently denied. (Id. ¶¶ 15–16.)

28 On September 29, 2021, Plaintiff submitted a FOIA request “for copies of e-mail

1 records pertaining to him” sent to or from 11 individuals between October 1, 2020 to the

2 date of the request which contain the term “Carlborg” in the subject line, e-mail body, or

3 in any attachment. (“FOIA Request 3”). (Id. ¶ 40; Doc. 22-3, Ex. 2 at 29.) Plaintiff also

4 requested that the agency provide the responsive records “in a .pdf file one per mailbox.”

5 (Doc. 22-3, Ex. 2 at 29.) Defendants provided Plaintiff with responsive records and

6 withheld certain information under 5 U.S.C. § 552(b)(6). (Compl. ¶ 41.) Plaintiff

7 administratively appealed Defendants’ withholdings, the format of the records, and the

8 adequacy of its search. (Id. ¶ 42.) Defendants partially granted his appeal as to the records’

9 format. (Id. ¶ 43.) Plaintiff again administratively appealed Defendants’ response on

10 remand for failure to comply with Plaintiff’s requested format, which was fully denied on

11 September 27, 2022. (Id. ¶¶ 45–47.)

12 On December 27, 2021, Plaintiff submitted a FOIA request “for copies of e-mail

13 records pertaining to him” sent to or from 16 individuals between August 1, 2014 to the

14 date of the request (“FOIA Request 4”). (Id. ¶ 48; Doc. 22-3, Ex. 2 at 149.) Similar to

15 FOIA Request 3, Plaintiff requested that the agency provide responsive records “in a .pdf

16 file one per mailbox.” (Doc. 22-3, Ex. 7 at 149.) After Defendants provided Plaintiff with

17 redacted records, Plaintiff filed an administrative appeal based on improper statutory

18 withholdings, the withholding of segregable non-exempt information, and formatting.

19 (Compl. ¶ 49.) Defendants partially granted the appeal as to the segregable information

20 and two statutory withholdings. (Id. ¶ 50.) Defendants denied the appeal as to the material

21 withheld under § 552(b)(6) but did not address the formatting issue. (Id. ¶ 51.)

22 2. The FOIA 2 Requests

23 Between November 2020 and July 2021, Plaintiff submitted five FOIA requests

24 seeking the contents of the 2016 CD that the MCCOG created while processing the 2016

25 FOIA Request (collectively, the “FOIA 2 Requests”).6 (Id. ¶¶ 17–39.) On November 4,

1 2020, Plaintiff filed the first of the FOIA 2 Requests for “a copy of e-mail records

2 pertaining to him provided to II MEF on [the 2016 CD] in April 2016 in response to [the

3 2016 FOIA Request].” (Id. ¶ 17.) Plaintiff specifically requested that “a search be re-

4 conducted of the [2016 CD] for any potentially responsive records previously withheld.”

5 (Doc. 22-3, Ex. 1 at 6–7.) The agency responded that it could not perform the search

6 because it was unable to locate the 2016 CD and that “due [to the 2016 CD] being over 4

7 years old, [it] may have been destroyed, per record keeping protocol.” (Id. at 4.)

8 On December 16, 2020, Plaintiff filed a second request for a “review and release of

9 all records from the copy of Work Order #212705 maintained by [the MCCOG] that were

10 produced in response to [the 2016 FOIA Request].” (Doc. 22-3, Ex. 10 at 183; see Compl.

11 ¶ 20.) “Work Order #212705” refers to the agency’s internal request used to generate the

12 search for the 2016 FOIA Request and create the 2016 CD. (See id., Ex. 3 at 63.)

13 Defendant Navy denied this Request as duplicative and stated that Plaintiff “essentially

14 asks II MEF to re-open and re-process the substance of [his] 2016 FOIA request.” (Id., Ex.

15 10 at 176; see id. at 178.) Defendant Navy asserted that it had “already fully processed

16 [his] 2016 FOIA request . . . , including searching for and releasing responsive materials[,]”

17 and the D.C. Court determined this search was “reasonably calculated to uncover all

18 relevant documents’ responsive to [his] requests.” (Id. (citation omitted).)

19 Plaintiff filed three more requests seeking the same “e-mail records pertaining to

20 him from the MCCOG copy” of the records responsive to the 2016 FOIA Request. (Compl.

21 ¶¶ 25, 28–29.) In response, Defendant Navy provided Plaintiff with an identical copy of

22 the records previously produced in response to the 2016 FOIA Request and denied the

23 other requests as duplicative. (Id. ¶¶ 26, 30.) Plaintiff administratively appealed Defendant

24 Navy’s responses. (Doc. 22-3, Ex. 10 at 179–80.) As part of his appeal, Plaintiff requested

25 that Defendant Navy “release additional materials not released in response to [the 2016

26 FOIA Request],” and that it “maintain an independent copy of all responsive materials

27 based on [his] suspicion that II-MEF has illegally destroyed records.” (Id. at 179.)

28 On May 19, 2021, Defendant Navy denied Plaintiff’s appeal and found that such

1 appeals were “an attempt to reopen matters that have previously been settled by your

2 administrative appeals and subsequent litigation.” (Id. at 180.) Defendant Navy also stated

3 that it was “reasonable for the [USMC] to decline to conduct new, additional searches for

4 responsive records to this or similarly worded requests for information. The [USMC] has

5 already conducted a search for these records, provided the requested materials, extensively

6 conducted administrative reviews of your request, and successfully defended the adequacy

7 of its search and response in federal court.” (Id., Ex. 3 at 180.)

8 3. FOIA Requests 5, 6, and 7

9 In 2022, Plaintiff submitted three more FOIA requests for information also related

10 to the 2016 FOIA Request and the 2017 FOIA Request.

11 a. FOIA Request 5

12 On April 11, 2022, Plaintiff requested “a copy of the file properties from the [2016

13 CD] created . . . in support of” the 2016 FOIA Request (“FOIA Request 5”).7 (Doc. 22-3,

14 Ex. 3 at 69; see Compl. ¶ 53.) Plaintiff specifically sought “a copy of the properties of

15 each file on the [2016] CD from the dialog box tab that includes name of file, size, and the

16 creation date which is registered for each file. The properties dialog box for each file on

17 the [2016] CD can be opened simultaneously and a screenshot taken of all of the open

18 dialog boxes.” (Doc. 22-3, Ex. 3 at 69.)

19 Defendant Navy initially provided Plaintiff with responsive records but withheld

20 certain portions of the records under 5 U.S.C. § 552(b)(6). (Id. at 72.) However, on May

21 23, 2022, however, Defendant Navy updated its response and asked Plaintiff to “discard

22 all responsive records previously provided for [FOIA Request 5 because] [t]hose records

23 were provided as a good faith assumption that [Plaintiff] desired the information from the

24 recreation of [the 2016 CD] that has been used for all search requests.” (Id. at 63.)

25 Plaintiff filed an administrative appeal as to Defendant Navy’s response and claimed

1 that the documents produced were “not the records that [he] requested” because he

2 requested “a copy of the properties of the files from the [2016 CD], however the location

3 listed for each of these files [was] from a shared network folder,” not from the 2016 CD.

4 (Id. at 65; see Compl. ¶ 55.) On August 8, 2022, Defendant Navy denied his appeal and

5 cited the same reasons for denying the FOIA 2 Requests such as the fact that the 2016 CD

6 no longer exists, that it had recreated the 2016 CD’s contents to respond to his recent

7 Requests, and that it had “successfully defended the adequacy of its search and response in

8 federal court.” (Id. at 58–59; see id., Ex. 10 at 179–80.)

9 b. FOIA Requests 6 and 7

10 On May 12, 2022, Plaintiff filed two FOIA requests. In the first request, Plaintiff

11 sought “a copy of the records that list what is within the eight individual .psts contained on

12 the [2016 CD] created in response to” his 2016 FOIA Request (“FOIA Request 6”). (Doc.

13 22-3, Ex. 4 at 92; see Compl. ¶ 57.) Plaintiff specified that he “is not requesting a copy of

14 the emails or the attachments from the .psts but [he] requests that these screenshots/.pdfs

15 capture every record from each .pst” according to his detailed formatting specifications.

16 (Id.) Plaintiff also requested “the same screenshots/.pdfs from the eight .psts that were

17 provided to II MEF by the FOIA officer from” the MCCOG. (Id. at 87.) In the second

18 request, Plaintiff sought “a copy of the records that list what is within the copy of the .pst

19 created in response to” the 2017 FOIA Request (“FOIA Request 7”). (Id. at 88; see Compl.

20 ¶ 61.) Plaintiff requested these records be produced according to the same specifications

21 outlined in FOIA Request 6. (Id.)

22 Defendants concurrently denied FOIA Requests 6 and 7 as duplicative of the 2016

23 FOIA Request and the 2017 FOIA Request, respectively. (Id. at 85.) For both Requests,

24 Defendants asserted that the “responsive records had already been provided to [Plaintiff]

25 in [his] elected form and format.” (Id. at 85, 96.) Plaintiff’s administrative appeals from

26 these denials were subsequently denied. (Id. at 88.) By requesting that the agency “create

27 screenshots using the Microsoft Outlook software program and existing agency records,”

28 Defendants reasoned that Plaintiff effectively requested the creation of “new records of

1 responsive records that [he] already received.” (Id.)

2 4. DON Request

3 On March 28, 2023, Plaintiff filed a FOIA Request “for a copy of records” in

4 Defendant Navy’s possession (the “DON Request”). (Compl. ¶ 79.) As of the date of the

5 Complaint, Plaintiff had not received a response to the DON Request. (Id. ¶ 81.)

6 D. The Privacy Act Requests

7 Between September and December 2022, Plaintiff filed two requests with

8 Defendants for records under the Privacy Act. (Compl. ¶¶ 65, 73.)

9 1. BCNR Requests

10 In September 2022, Plaintiff filed two requests for records to the BCNR under FOIA

11 and the Privacy Act (collectively, the “BCNR Requests”). Plaintiff filed a Privacy Act

12 request for “a copy of his record from a [system of records] maintained by the BCNR.”

13 (Id. ¶ 65.) He also filed a similar FOIA request for “a copy of records in [the BCNR’s]

14 possession.” (Id. ¶ 69.) In response to the BCNR Requests, Defendants provided Plaintiff

15 with responsive records and withheld certain portions under a FOIA statutory exemption.

16 (Id. ¶¶ 66, 70; see Doc. 22-1, Ex. 2 at 53–54.) One of these records was a document titled

17 “Recorder’s Log.” (See Doc. 22-1, Ex. 3 at 77.) The Recorder’s Log details the “Board of

18 Correction [cases] for two individuals, whose different cases were heard by the same board

19 on [May 19, 2022].” (Id.) In this record, Defendants redacted information “pertain[ing]

20 to a different third-party BCNR applicant” including the applicant’s name, the breakdown

21 of the Board’s voting on his case, whether a hearing was requested, and other case

22 comments. (Id.; see id., Ex. 2 at 53.) In his administrative appeal, Plaintiff argued that “a

23 FOIA exemption cannot be the sole justification for withholding under the [Privacy Act].”

24 (Compl. ¶ 67.) Defendants denied Plaintiff’s appeal. (Id. ¶¶ 68, 72.)

25 2. DOD Request

26 On December 10, 2022, Plaintiff submitted requests under the Privacy Act and FOIA

27 for “a copy of his record from a [system of records] maintained by the” OSD (the “DOD

28 Request”). (Id. ¶ 73.) Defendants provided Plaintiff with a copy of his records partially

1 redacted under 5 U.S.C. § 552(b)(6). (Id. ¶ 76.) Similar to the BCNR Request, Plaintiff

2 argued in his administrative appeal that “a FOIA exemption cannot be the sole justification

3 for withholding under the [Privacy Act].” (Id. ¶ 77.) Plaintiff has not yet received a

4 response to his appeal. (Doc. 24 at 9.)

5 E. Procedural History

6 On November 9, 2023, Plaintiff filed the instant Complaint challenging Defendants’

7 response to several of his FOIA and Privacy Act Requests filed after February 2020.

8 (Compl. ¶¶ 6–11.) Plaintiff asserts eight causes of actions for: (1) failure to respond within

9 the statutory period under 5 U.S.C. § 552(a)(6)(C); (2) improper withholding of reasonably

10 segregable non-exempt information under 5 U.S.C. § 552(a)(8)(A)(ii); (3) improper

11 withholding of information under 5 U.S.C. § 552(b)(5) (“FOIA Exemption 5”); (4)

12 improper withholding of information under 5 U.S.C. § 552(b)(6) (“FOIA Exemption 6”);

13 (5) improper withholding of information under 5 U.S.C. § 552(b)(7)(C) (“FOIA Exemption

14 7”); (6) improper withholding of information under the Privacy Act; (7) failure to conduct

15 an adequate search under FOIA; and (8) failure to provide records in the format requested

16 under 5 U.S.C. § 552(a)(3)(B).

17 1. Joint Statements

18 On March 8, 2024, the Parties participated in an Early Neutral Evaluation (“ENE”)

19 before Magistrate Judge Allison H. Goddard. (Doc. 11 at 1; see Doc. 16.) Prior to the

20 ENE conference, the Parties filed a Joint Case Management Statement where they

21 “agree[d] that this case should be resolved via summary judgment briefing” on the

22 following three legal issues: (1) the adequacy of Defendants’ searches in response to

23 Plaintiff’s requests; (2) the propriety of Defendants’ withholdings under FOIA’s statutory

24 exemptions; and (3) the application of res judicata to Plaintiff’s claims. (Doc. 14 at 3–4.)

25 Shortly thereafter, the Parties were ordered to file a Joint Report providing an

26 “agreed-upon list” of representative withholdings and “other areas of dispute that need to

27 be submitted in a motion for summary judgment.” (Doc. 17 at 1–3.) In response, Plaintiff

28 identified 47 pages from the released records which represent the disputed withholdings,

1 or the “representative” withholdings, in each asserted category of statutory exemptions.

2 (See Doc. 22-1, Decl. of Katherine L. Parker [“Parker Decl.”], Ex. 1 at 5.) The Parties’

3 listed “areas of dispute” consisted of the same three issues previously asserted in the Joint

4 Case Management Statement. (See id.; see also Doc. 14 at 3–4.)

5 2. Motion for Summary Judgment

6 On November 20, 2024, Defendants filed the instant MSJ based on three previously

7 listed legal issues. (Doc. 22 at 7.) Additionally, “Defendants concede that [Exemption 7]

8 does not apply” to the representative withholding for this exemption. (Doc. 22 at 12 n.1.)

9 Defendants claim such withholdings are nonetheless justified under Exemption 6. (Id.)

10 In his Opposition, Plaintiff further narrowed the issues by stating that: (1) Count 1,

11 in part, “is no longer an issue for the Court” based on Defendants’ alleged delay in

12 processing the DON Request; (2) Count 2 for segregability “should be dismissed” because

13 “all reasonably segregable information has been released”; and (3) Count 3 should be

14 dismissed because “all withheld materials under [Exemption 5]” fell within its scope.

15 (Doc. 24 at 9–10.) As to Count 5 for improper withholding under Exemption 7, Plaintiff

16 notes Defendants’ concession and requests that “the Court consider this exemption waived

17 for all other” records responsive to FOIA Request 4. (Id. at 14.)

18 Accordingly, the following are DISMISSED: Count 1 (delayed processing) in part

19 as to the DON Request only;9 Count 2 (segregability); Count 3 (improper withholding

8 “Representative sampling is an appropriate procedure to test an agency’s FOIA

exemption claims when a large number of documents are involved.” In re DOJ, 999 F.2d

25 1302, 1318 (8th Cir. 1993) (quoting Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1151

(D.C. Cir. 1991)).

27 9 Count 1 applies to both the DON Request and the DOD Request. (Compl. ¶ 99.) In the

Opposition, Plaintiff only voluntarily dismisses Count 1 as to the DON Request but not the

1 under Exemption 5); and Count 5 (improper withholding under Exemption 7) . The

2 following causes of action remain: (1) Count 1 as to the DOD Request only; (2) Count 4

3 for improper withholdings under Exemption 6; (3) Count 6 for improper withholdings

4 under the Privacy Act; (4) Count 7 for failure to conduct an adequate search under FOIA;

5 and (5) Count 8 for failure to comply with requested formatting.

6 II. LEGAL STANDARD

7 A. FOIA

8 “FOIA entitles private citizens to access government records.” Minier v. CIA, 88

9 F.3d 796, 800 (9th Cir. 1996). Under FOIA “each agency, upon any request for records

10 which (i) reasonably describes such records and (ii) is made in accordance with published

11 rules stating the time, place, fees (if any), and procedures to be followed, shall make the

12 records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The “core purpose of

13 the FOIA [is to] contribut[e] significantly to public understanding of the operations or

14 activities of the government.” DOJ v. Reps. Comm. For Freedom of Press, 489 U.S. 749,

15 775 (1989) (internal quotation marks and citation omitted).

16 “While FOIA ‘establishes a judicially enforceable public right’ to secure access to

17 government records, it also ‘contemplates that some information may legitimately be kept

18 from the public.’” Minier, 88 F.3d at 800 (quoting Elec. Frontier Found. v. Office of the

19 Dir. of Nat’l Intelligence, 639 F.3d 876, 882–83 (9th Cir. 2010)). FOIA provides nine

20 exemptions that permit federal agencies to withhold information otherwise subject to

21 FOIA’s disclosure requirement. Id. at 883; see 5 U.S.C. § 552(b)(1)–(9). These

22 exemptions “reflect a recognition that ‘legitimate governmental and private interests could

23 be harmed by release of certain types of information.’” ACLU of N. Cal. v. DOJ, 880 F.3d

24 473, 483 (9th Cir. 2018) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152

27 10 Although Count 5 for improper withholdings under Exemption 7 has been dismissed, the

Court will nonetheless assess the propriety of the disputed withholdings for FOIA Request

1 (1989)). In keeping with FOIA’s goals, the nine exemptions must be construed narrowly.

2 Church of Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 742 (9th Cir. 1979).

3 “Where the government withholds documents pursuant to one of the enumerated

4 exemptions of FOIA, ‘the burden is on the agency to sustain its action.’” Minier, 88 F.3d

5 at 800 (quoting 5 U.S.C. § 552(a)(4)(B)).

6 B. The Privacy Act

7 FOIA and the Privacy Act are structurally similar. See Rojas v. FAA, 941 F.3d 392,

8 396 (9th Cir. 2019) (“Although FOIA and the Privacy Act are different in design and scope,

9 they both contemplate that members of the public will have access to public records,

10 subject to specified exemptions.”). “The Privacy Act governs the disclosure of, access to,

11 and amendment of records on individuals that are maintained by federal agencies.” Lane

12 v. Dep’t of Interior, 523 F.3d 1128, 1138 (9th Cir. 2008) (citing 5 U.S.C. § 552a). Like

13 FOIA, the Privacy Act “gives individuals a right to gain access to government records

14 concerning themselves ‘upon request.’” Id. (citing 5 U.S.C. § 552a(d)(1)); see 5 U.S.C.

15 §§ 552a(e)(4)(G), (f)(1). While “[they] substantially overlap . . . the two statutes are not

16 completely coextensive.” Greentree v. U.S. Customs Serv., 674 F.2d 74, 78 (D.C. Cir.

17 1982). The Privacy Act’s goal is to “protect the privacy of individuals through regulation

18 of the collection, maintenance, use, and dissemination of information by federal agencies.”

19 Rouse v. U.S. Dep’t of State, 567 F.3d 408, 413 (9th Cir. 2009) (cleaned up).

20 C. Summary Judgment

21 “Summary judgment is the procedural vehicle by which nearly all FOIA cases are

22 resolved.” Los Angeles Times Commc'ns, LLC v. Dep’t of Army, 442 F. Supp. 2d 880, 893

23 (C.D. Cal. 2006) (quoting Nat’l Res. Def. Council v. U.S. Dep’t of Defense, 388 F. Supp.

24 2d 1086, 1094 (C.D. Cal. 2005)). Summary judgment is appropriate “if the movant shows

25 that there is no genuine dispute as to any material fact and the movant is entitled to

26 judgment as a matter of law.” Fed. R. Civ. P. 56(a).

27 “Unlike the typical summary judgment analysis, in a FOIA case, we do not ask

28 whether there is a genuine issue of material fact, because the facts are rarely in dispute.”

1 Minier, 88 F.3d at 800 (citing Schiffer v FBI, 78 F3d 1405, 1409 (9th Cir 1996)). Rather,

2 to prevail on summary judgment in a right of access case under both the Privacy Act and

3 FOIA, “[t]he agency must: ‘demonstrate that it has conducted a search reasonably

4 calculated to uncover all relevant documents.’” Zemansky v. EPA, 767 F.2d 569, 571 (9th

5 Cir. 1985) (quoting Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)); see also

6 Lane v. Dep’t of Interior, 523 F.3d 1128, 1139 n.9 (9th Cir. 2008) (“Zemansky discussed

7 the search burden in a FOIA case, but the same standard applies to Privacy Act cases.”).

8 “[A]t the summary judgment stage, where the agency has the burden to show that it acted

9 in accordance with the statute, the [C]ourt may rely on a reasonably detailed affidavit,

10 setting forth the search terms and the type of search performed, and averring that all files

11 likely to contain responsive materials (if such records exist) were searched.” Chambers v.

12 Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (cleaned up). The agency’s affidavit

13 is “accorded a presumption of good faith, which cannot be rebutted by purely speculative

14 claims about the existence and discoverability of other documents.” SafeCard Servs., Inc.

15 v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (cleaned up).

16 If an agency withholds information responsive to a FOIA request, it also bears the

17 burden to prove that the information falls within a one of the nine FOIA exemptions to the

18 disclosure requirement. See Dobronski v. FCC, 17 F.3d 275, 277 (9th Cir. 1994); see also

19 Chambers, 568 F.3d at 1003 (“[T]he court may rely on a reasonably detailed affidavit” in

20 reviewing a Privacy Act disclosure claim). To satisfy this burden on summary judgment,

21 “agencies are typically required to submit an index and ‘detailed public affidavits,’”

22 commonly referred to as a Vaughn index. Yonemoto v. Dep’t of Veterans Affs., 686 F.3d

23 681, 688 (9th Cir. 2011) (quoting Lion Raisins v. Dep’t of Agric., 354 F.3d 1072, 1082 (9th

24 Cir. 2004)).11 “A Vaughn Index must: (1) identify each document withheld; (2) state the

27 11 This term derives from the seminal case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)

(rejecting an agency’s conclusory affidavit which stated that requested FOIA documents

1 statutory exemption claimed; and (3) explain how disclosure would damage the interests

2 protected by the claimed exemption.” Citizens Comm’n on Human Rights v. FDA, 45 F.3d

3 1325, 1326 n. 1 (9th Cir. 1995). Such submissions must be “from ‘affiants who are

4 knowledgeable about the information sought’ and ‘detailed enough to allow court[s] to

5 make an independent assessment of the government’s claim of exemption.’” Yonemoto,

6 686 F.3d at 688 (cleaned up) (quoting Lion Raisins, 354 F.3d at 1079). “[S]ummary

7 judgment on the basis of such agency affidavits is warranted if the affidavits describe the

8 documents and the justifications for nondisclosure with reasonably specific detail,

9 demonstrate that the information withheld logically falls within the claimed exemption,

10 and are not controverted by either contrary evidence in the record nor by evidence of

11 agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

12 III. DISCUSSION

13 Defendants move for summary judgment on the following grounds: “(1) the doctrine

14 of res judicata bars much of Plaintiff’s action, (2) Defendants’ searches for records were

15 reasonable, (3) Defendants properly withheld information pursuant to [FOIA]’s statutory

16 exemptions, and (4) Defendants did not violate the Privacy Act.” (Doc. 22 at 7.) In support

17 of the MSJ, Defendants filed a declaration from Captain William D. Barnett, the II-MEF

18 Adjutant and FOIA Coordinator (Doc. 22-2, Declaration of Captain William D. Barnett

19 [“Barnett Decl.”] ¶ 3), a declaration from Assistant U.S. Attorney Katherine L. Parker

20 (Doc. 22-1, “Parker Decl. ¶ 1), and the Vaughn Index (Id., Ex. 3 [“Vaughn Index”] at 56–

21 77.) The Court addresses each argument in turn.

22 A. Res Judicata

23 Defendants argue that Plaintiff’s claims challenging the searches conducted in

24 response to the FOIA 2 Requests and FOIA Requests 3, 5–7 are barred by the doctrine of

25 res judicata. (Doc. 22 at 9.) Specifically, Defendants contend that Plaintiff’s attempts to

26 “obtain [the 2016] CD” are precluded because he “fully litigated his entitlement to [the

27 2016] CD and the records on that CD” in Carlborg I. (Id.)

28 Res judicata, or claim preclusion, applies “when the earlier suit (1) involved the

1 same claim or cause of action as the later suit, (2) reached a final judgment on the merits,

2 and (3) involved identical parties or privies.” Mpoyo v. Litton Electro-Optical Sys., 430

3 F.3d 985, 987 (9th Cir. 2005) (cleaned up). Claim preclusion “prevents parties from raising

4 issues that could have been raised and decided in a prior action—even if they were not

5 actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 590 U.S.

6 405, 411–12 (2020). Here, the Parties do not dispute that Carlborg I involved the same

7 parties as the present action and a final judgment on the merits. Thus, the question is

8 whether Carlborg I and the present case involve the “same cause of action.”

9 1. Same Claims

10 Defendants argue that Plaintiff’s claims in Carlborg I and the present action involve

11 the “same transactional nucleus of facts, and the same rights, which is the creation of a CD

12 of records in response to Plaintiff’s 2016 FOIA request, and Plaintiff’s claimed right to

13 access that information.” (Doc. 22 at 10 (internal quotation marks omitted.)

14 The Ninth Circuit considers four factors in determining whether there is an identity

15 of claims between the present and previous cases:

16 (1) whether rights or interests established in the prior judgment would be

destroyed or impaired by prosecution of the second action; (2) whether

substantially the same evidence is presented in the two actions; (3) whether

18 the two suits involve infringement of the same right; and (4) whether the two

suits arise out of the same transactional nucleus of facts.

20 Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005) (cleaned up).

21 The fourth factor “is the most important” and is outcome determinative. Id.; see Int’l Union

22 of Operating Engineers-Employers Constr. Indus. Pension, Welfare, & Training Trust

23 Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993) (holding an action may be barred under

24 res judicata without reaching the other factors where two claims arise out of the same

25 transactional nucleus of fact).

26 In the FOIA context, federal courts have determined that “two suits involve the same

27 nucleus of facts when they seek the same documents.” Elec. Priv. Info. Ctr. v. IRS, 575 F.

28 Supp. 3d 84, 92 (D.D.C. 2021) (citing Negley v. FBI, 169 Fed. App’x 591, 593–94 (D.C.

1 Cir. 2006)); see Gonzalez-Lora v. DOJ, 169 F. Supp. 3d 46, 53 (D.D.C. 2016) (holding res

2 judicata and collateral estoppel barred second challenge to the agency’s response to

3 identical FOIA request); Roman v. Nat’l Reconnaissance Off., 952 F. Supp. 2d 159, 164

4 (D.D.C. 2013) (finding res judicata precluded FOIA requester’s second suit contesting the

5 agency’s search where a prior suit involved request for identical documents). When two

6 FOIA cases involve requests for the same documents, such cases necessarily implicate the

7 “infringement of the same right” to the same documents, or the third relevant factor. See

8 Benavides v. U.S. Marshals Serv., 990 F.2d 625, 625 (5th Cir. 1993) (affirming preclusion

9 where the requestor “claimed the right to obtain documents that were generated pursuant

10 to his arrest” in a prior suit and then sought “the same documents from the [agency] in the

11 present lawsuit that he sought in the [prior] suit.”) (emphasis added); see also Brodheim v.

12 Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (“If two actions involve the same injury to the

13 plaintiff and the same wrong by the defendant, then the same primary right is at stake even

14 if in the second suit the plaintiff pleads different theories of recovery, seeks different forms

15 of relief and/or adds new facts supporting recovery.”) (emphasis added) (cleaned up).

16 As Plaintiff’s present claims implicate multiple FOIA Requests, the Court addresses

17 each FOIA Request to determine whether his claims in both actions arise from the same

18 nucleus of facts and are therefore the same.

19 a. FOIA 2 Requests

20 The FOIA 2 Requests are various iterations of Plaintiff’s request for the MCCOG’s

21 copy of the same e-mail records “produced in response to [the 2016 FOIA Request].” (Doc.

22 22-3, Ex. 10 at 183.) As the FOIA 2 Requests seek the same documents as the 2016 FOIA

23 Request, and Plaintiff challenges the same conduct in response to those Requests, the Court

24 finds that Plaintiff’s claims in Carlborg I and the present action are the same.

25 While Plaintiff’s claims are based on facially different FOIA Requests made years

26 apart, the FOIA 2 Requests do not expand the scope of the 2016 FOIA Request. Plaintiff

27 seeks the same e-mail records from the same custodians within the same time frame. The

28 main difference is that Plaintiff now specifically seeks the MCCOG’s copies of such

1 records. (See Compl. ¶¶ 20, 25.) However, any documents in the MCCOG’s possession

2 were necessarily covered by the MCCOG’s original search of its files in response to the

3 2016 FOIA Request. (Id. ¶¶ 20–21 (alleging the MCCOG “conducted the 2016 RECORDS

4 search producing the [2016] CD” and forwarded its “copy of the records . . . for review and

5 response.”); see Doc. 22 at 10 (“[The MCCOG] searched for emails and provided them on

6 a CD to the [II-MEF], which reviewed the CD for responsive emails.”).) Plaintiff is

7 therefore seeking the same documents in the present lawsuit that he sought in Carlborg I.

8 See also Allnutt v. DOJ, 99 F. Supp. 2d 673, 678 (D. Md. 2000), aff’d sub nom. Allnut v.

9 Handler, 8 F. App’x 225 (4th Cir. 2001) (“[W]hen the initial request is so broad as to

10 encompass nearly all documents relating to a particular issue, the methodology of the first

11 search has been explained by the agency and held to be adequate, and the citizen was

12 granted access to all responsive documents, the Court will not require the agency to prove

13 for a second time that its search methods were reasonable.”).

14 Instead of asserting a new claim, Plaintiff challenges the same alleged conduct

15 forming the basis of his prior claims. In Carlborg I, Plaintiff alleged that Defendant Navy’s

16 search in response to the 2016 FOIA Request was inadequate because it failed to produce

17 certain responsive records. (See D.C. Order [Doc. 22-5] at 123.) Here, Plaintiff alleges

18 that Defendant Navy’s search is inadequate because it provided Plaintiff with an “identical

19 copy” of the same records he previously received in response to the 2016 FOIA Request.

20 (Compl. ¶¶ 25–26.) Plaintiff therefore challenges the same conduct for which he

21 previously sought redress. See Sikes v. U.S. Dep’t of Navy, 896 F.3d 1227, 1236 (11th Cir.

22 2018) (“[I]f [Defendant] Navy had responded to [the plaintiff’s] identical [FOIA Request]

23 by giving him those same [pages of records]” that were determined to be a complete

24 response to a duplicate request in the prior action, “[the plaintiff] might be barred from

25 arguing that [Defendant] Navy should have given him anything more.”). Indeed, Plaintiff

26 concedes that the FOIA 2 Requests are meant to capture additional e-mail records that he

27 claims exist but the agency did not produce in response to the 2016 FOIA Request. (See

28 Doc. 24 at 8 (“This was the start of Plaintiff’s quest . . . to obtain the records in these date

1 gaps that [the FOIA response coordinator] said existed and which [Defendant Navy] said

2 did not.”).) The factual basis for Plaintiff’s claims in both actions is therefore the same—

3 Plaintiff seeks the e-mail records relating to his involuntary discharge that he claims

4 Defendant Navy has but Defendant Navy claims it does not. See Kemp v. Grippen, No.

5 06-C-0076, 2007 WL 870123, at *6 (E.D. Wis. Mar. 20, 2007) (“[T]he post-judgment

6 requests did not create any new cause of action. The ‘core of operative facts’ remained the

7 same: [the plaintiff] is seeking medical records that he claims the [agency] has but the

8 [agency] claims it does not.”). Thus, Plaintiff’s present claims concerning the FOIA 2

9 Requests and his prior claims concerning the 2016 FOIA Request in Carlborg I constitute

10 the same claim for purposes of claim preclusion.

11 Plaintiff further argues that res judicata is inapplicable because new evidence,

12 namely a 2021 e-mail exchange between Plaintiff and a FOIA coordinator, demonstrates

13 the existence of additional records and “highlights the lack of good faith” by Defendant

14 Navy. (Doc. 24 at 6.) In the e-mail exchange, the FOIA coordinator who processed the

15 FOIA 2 Requests informed Plaintiff that there were “a significant number of files”

16 maintained for the 2016 FOIA Request within a specific time frame. (Doc. 24 at 7

17 (emphasis in original); see id., Ex. 2 at 22.) Plaintiff contends that this statement: (1)

18 contradicts Defendant Navy’s declaration in Carlborg I that no further records responsive

19 to the 2016 FOIA Request exist; and (2) supports his claim that the 2016 CD reviewed

20 while processing his FOIA Request “was not the original CD provided to the [II-MEF] in

21 2016 [and] a fabricated CD with records removed was put in its place.” (Id. at 6–7 n.1.)

22 However, these statements do not negate the preclusive effect of res judicata on the

23 current action. See Vahora v. Valley Diagnostics Lab’y, Inc., Case No. 1:19-cv-00912-

24 DAD-SKO, 2020 WL 42242, at *7 (E.D. Cal. Jan. 3, 2020), report and recommendation

25 adopted in part sub nom. Vahora v. Valley Diagnostic Lab’y Inc., 2020 WL 1061470 (E.D.

26 Cal. Mar. 5, 2020) (“Newly discovered evidence typically does not prevent the application

27 of res judicata.”). While Plaintiff seems to suggest that this new evidence demonstrates

28 the D.C. judgment was obtained through fraud (see Doc. 24 at 6), the Ninth Circuit has not

1 recognized a fraud exception to res judicata. See Costantini v. Trans World Airlines, 681

2 F.2d 1199, 1202 (9th Cir. 1982) (“We need not decide whether there is a fraudulent

3 concealment exception to the law of res judicata because no fraudulent concealment has

4 been properly presented.”). To the extent there is a fraud exception to res judicata, it is

5 nonetheless inapplicable in this case because Defendant Navy’s prior denial did not prevent

6 Plaintiff from knowing that he may have a viable claim based on the alleged existence of

7 additional responsive records in Carlborg I. See id. at 1203 n.12 (noting the fraudulent

8 concealment exception applies only “where defendant’s misconduct prevented plaintiff

9 from knowing, at the time of the first suit, either that he had a certain claim or else the

10 extent of his injury.”). In fact, the D.C. Court considered and rejected Plaintiff’s similar

11 arguments that the agency’s search was inadequate because it failed to produce certain

12 documents from the same time frame. (See Doc. 22-5, Ex. 6 at 133.)

13 As these claims arise from the same nucleus of facts, involve the same parties, and

14 the D.C. Court entered a final judgment on the merits, the Court finds that Plaintiff cannot

15 now relitigate the same claim with respect to the 2016 FOIA Request.

16 b. FOIA Request 3

17 In FOIA Request 3, Plaintiff requested “a copy of any email (with a copy of any

18 attachments) sent to/from [11 individuals] from October 1, 2020 [to the date of the

19 search].” (Doc. 22-3 at 172; see Compl. ¶ 40.) While FOIA Request 3 contains language

20 similar to the 2016 FOIA Request, Plaintiff seeks e-mails sent or received over two years

21 after he filed his D.C. complaint in 2018.

22 Because Plaintiff could not have brought a claim in Carlborg I based on documents

23 post-dating the D.C. Court’s final order, such claims are not barred under the doctrine of

24 res judicata. See Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955) (“While

25 the [prior] judgment precludes recovery on claims arising prior to its entry, it cannot be

26 given the effect of extinguishing claims which did not even then exist and which could not

27 possibly have been sued upon in the previous case.”); Howard v. City of Coos Bay, 871

28 F.3d 1032, 1040 (9th Cir. 2017) (“[C]laim preclusion does not apply to claims that accrue

1 after the filing of the operative complaint [in the prior action].”).

2 c. FOIA Request 5

3 In FOIA Request 5, Plaintiff requests “a copy of the file properties from the [2016]

4 CD created . . . in support of [the 2016] FOIA Request.” (Doc. 22-3 at 69.) This Request

5 references the 2016 FOIA Request and thus relates to the same responsive records.

6 However, Plaintiff seeks the file properties of such records, not the e-mail records

7 themselves. (See id. (“Specifically, [Plaintiff] request[s] a copy of the properties of each

8 file on the [2016] CD from the dialog box tab that includes name of file, size, and the

9 creation date which is registered for each file.”).) The Court finds there is sufficient nuance

10 between the two claims to caution against treating them as the same because FOIA Request

11 5 seeks different records than those litigated in Carlborg I.

12 d. FOIA Requests 6 and 7

13 Plaintiff’s FOIA Request 6 seeks a copy of the records contained in the 2016 CD but

14 in “screenshot” format according to his listed specifications. (See Doc. 22-3, Ex. 4 at 83,

15 87; Compl. ¶ 57.) Similarly, FOIA Request 7 seeks “a copy of the records that list what is

16 within the copy of the .pst created in response to [the 2017 FOIA Request].” (Doc. 22-3,

17 Ex. 4 at 88.) Defendant Navy denied both Requests as duplicative of the 2016 and 2017

18 FOIA Requests and did not conduct a search because “it would yield no new results.”

19 (Barnett Decl. [Doc. 22-2] ¶¶ 24–25, 28–29.)

20 Despite the fact that FOIA Requests 6 and 7 reference the 2016 and 2017 FOIA

21 Requests respectively, they seek screenshots containing information that was not originally

22 requested in the 2016 and 2017 FOIA Requests, such as the size of each file. See Stevens

23 v. Broad. Bd. of Governors, No. 18-CV-5391, 2021 WL 1192672, at *3 (N.D. Ill. Mar. 30,

24 2021) (“A screenshot is a representation of a program in action . . . [and] is not, then,

25 comparable to producing the same document on either a CD-ROM or a flash drive.”).

26 Additionally, Plaintiff’s claims are based on different conduct than that previously

27 challenged in Carlborg I. In Carlborg I, Plaintiff’s claims arose from Defendant Navy’s

28 searches and withholdings in response to the 2016 and 2017 FOIA Request. In contrast,

1 Plaintiff’s current claims are based on Defendant Navy’s failure to conduct any search or

2 produce any records in response to FOIA Requests 6 and 7 (see Compl ¶¶ 58, 62). See

3 Sikes, 896 F.3d at 1236 (holding a FOIA requestor was not precluded from challenging the

4 Navy’s failure to provide any records in response to the plaintiff’s second, albeit duplicate,

5 request). Thus, Plaintiff’s claims concerning FOIA Requests 6 and 7 are not the “same”

6 as those litigated in Carlborg I. See Negley, 589 F. App’x at 729 (“[Two different FOIA]

7 requests might seek information related to a common nucleus of operative facts . . . but the

8 suits are in response to distinct FOIA requests and the alleged failures of the [agency]

9 flowing from those requests.”).

10 2. Conclusion

11 The Court finds that Plaintiff’s claims arising from the FOIA 2 Requests are

12 precluded under the doctrine of res judicata. While Plaintiff’s claims based on FOIA

13 Requests 3, 5–7 are not precluded, the Court turns to the merits of these claims. For the

14 reasons discussed infra, the Court concludes that summary judgment is warranted

15 independently on the merits.

16 B. Adequacy of the Searches (Count 7)

17 An adequate search is one that is “reasonably calculated to uncover all relevant

18 documents.” Pomares v. Dep’t of Veterans Affs., 113 F.4th 870, 879 (9th Cir. 2024). “The

19 adequacy of the agency’s search is judged by a standard of reasonableness, construing the

20 facts in the light most favorable to the requestor.” Citizens Comm’n on Hum. Rts., 45 F.3d

21 at 1328. “[T]he issue ‘is not whether there might exist any other documents possibly

22 responsive to the request, but rather whether the search for those documents was

23 adequate.’” Hamdan v. DOJ, 797 F.3d 759, 770–71 (9th Cir. 2015) (quoting Lahr v. Nat’l

24 Transp. Safety Bd., 569 F.3d 964, 987 (9th Cir. 2009)) (emphasis in original). “In

25 demonstrating the adequacy of the search, the agency may rely upon reasonably detailed,

26 nonconclusory affidavits submitted in good faith.” Zemansky, 767 F.2d at 571 (quoting

27 Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).

28 Defendants argue that their searches in response to Plaintiff’s FOIA 2 Requests and

1 FOIA Requests 3, 5, 6, and 7 were reasonable and adequate. (Doc. 22 at 11–12.) In

2 support of their contentions, Defendants provide the Captain William D. Barnett’s

3 (“Barnett”) declaration. (Barnett Decl. [Doc. 22-2].) He is responsible for analyzing and

4 responding to “FOIA requests for documents within the control and possession of II MEF

5 Command Element and the Major Subordinate Commands.” (Id. ¶ 3.) The Court relies on

6 the “reasonably detailed, nonconclusory” statements in Barnett’s declaration to determine

7 whether Defendants’ searches in response to Plaintiff’s multiple FOIA Requests were

8 reasonable. See Zemansky, 767 F.2d at 571 (internal quotation marks omitted); see also

9 Lahr, 569 F.3d at 990 (“An affidavit from an agency employee responsible for supervising

10 a FOIA search is all that is needed to satisfy the personal knowledge requirement of Federal

11 Rule of Civil Procedure 56(e).”) (cleaned up).

12 1. FOIA Request 3

13 In FOIA Request 3, Plaintiff sought e-mails and accompanying attachments sent to

14 or from eleven named individuals which included the term “Carlborg” that were sent or

15 received from October 1, 2020 to the date of the search. (Doc. 22-3 at 172; Barnett Decl.

16 [Doc. 22-2] ¶ 13.) In response, Defendant Navy searched the eleven individuals’ e-mail

17 boxes for the keyword “Carlborg.” (Barnett Decl. [Doc. 22-2] ¶ 15.)

18 As Defendants note, “Plaintiff does not address this evidence and has not identified

19 any alleged deficiencies in Defendants’ search efforts.” (Doc. 25 at 4.) Additionally, by

20 using Plaintiff’s name to search through the e-mail records of the specified individuals

21 during the requested time frame, the Court finds that the agency satisfied its burden to show

22 it conducted a search that was “reasonably calculated to discover the requested

23 documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

24 2. FOIA Request 5

25 In FOIA Request 5, Plaintiff requested “a copy of the properties of each file on the

12 As the Court concluded that Plaintiff’s claims concerning the FOIA 2 Requests are

1 [2016] CD from the dialog box tab that includes name of file, size, and the creation date

2 which is registered for each file.” (Doc. 22-3 at 69, 77; see Barnett Decl. [Doc. 22-2] ¶ 17.)

3 The agency searched the II-MEF’s local digital files for the term “WO212705,” or the

4 internal work order number used to create the 2016 CD. (Barnett Decl. [Doc. 22-2] ¶¶ 17–

5 19.) It then located “eight .pst files that were previously received from [the] MCCOG in

6 the 2016 FOIA [R]equest,” and prepared the screenshots in the format Plaintiff requested.

7 (Id. ¶¶ 19–21.) The Court finds Defendant Navy’s search was reasonably calculated to

8 uncover all documents responsive to FOIA Request 5.

9 In his administrative appeal, Plaintiff challenged the adequacy of the agency’s search

10 on the grounds that the location listed for each of the released records was from a shared

11 network, not from the 2016 CD as he requested. (Doc. 22-3 at 58; see Compl. ¶ 55.)

12 However, as Plaintiff has been made aware, the 2016 CD no longer exists. (See Doc. 22-

13 3, Ex. 1 at 59 (“As an initial matter, the [2016] CD, which you have requested on multiple

14 occasions, no longer exists. This fact was relayed to [Plaintiff.]”).) As the II-MEF was

15 “the last organization to have been in possession of” the 2016 CD (Doc. 22-3, Ex. 1 at 4),

16 the agency searched for records in a location likely to yield responsive material. See

17 Colgan v. DOJ, Civil Action No. 14-cv-740 (TSC), 2020 WL 2043828, at *5 (D.D.C. Apr.

18 28, 2020) (“To conduct an adequate search, an agency must . . . aver that all files likely to

19 contain responsive materials (if such records exist) were searched.”) (cleaned up). Thus,

20 Defendant Navy’s search constitutes “a good faith effort to conduct a search for the

21 requested records, using methods which can be reasonably expected to produce the

22 information requested.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402

23 (D.C. Cir. 2017).

24 3. FOIA Requests 6 and 7

25 In FOIA Requests 6 and 7, Plaintiff seeks screenshots of records “created in

26 response” to the 2016 and 2017 FOIA Requests. Defendant Navy determined that Plaintiff

27 “effectively [asks the agency] to create new records of responsive records that [Plaintiff]

28 had already received.” (Doc. 22-3, Ex. 4 at 88–89.) Plaintiff contends that his Requests

1 for screenshots “is not creating a record as it is the only way of providing a copy of the

2 record.” (Doc. 24 at 8.)

3 While the agency may have provided screenshots on other occasions (see id.),

4 “FOIA imposes no duty on the agency to create records.” Forsham v. Harris, 445 U.S.

5 169, 186 (1980); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,

6 152 (1980) (“The Act does not obligate agencies to create or retain documents; it only

7 obligates them to provide access to those which it in fact has created and retained.”). Based

8 on this precedent, courts have found that an agency is not required to produce screenshots.

9 See Brown v. Perez, 835 F.3d 1223, 1237 (10th Cir. 2016), as amended on reh’g (Nov. 8,

10 2016) (“[F]or the government to produce the requested printouts, it would have to open the

11 software, input the relevant data, and recreate a screen image that could be captured and

12 produced. Because FOIA does not require an agency to create records, [it] need not

13 undertake that process.”); Stevens, 2021 WL 1192672, at *3 (holding an agency is not

14 required to take screenshots of a software program as a screenshot is not a “form” of the

15 program); Colgan v. DOJ, No. 14-cv-740 (TSC), 2020 WL 2043828, at *10 (finding an

16 agency was not required to produce screenshots of a search screen because it “is not

17 retained as a record”).

18 In FOIA Request 6, Plaintiff provided the agency with lengthy instructions on how

19 to create the requested records. (See Doc. 22-3, Ex. 4 at 85 (providing FOIA Request 6 in

20 its entirety); id. at 88 (requesting records responsive to FOIA Request 7 be created in the

21 same manner as specified in FOIA Request 6).) To produce Plaintiff’s requested

22 screenshots, the agency would need “to open the software and create a screenshot, which

23 would not otherwise exist from the last time the agency opened the software . . . .” Colgan,

24 2020 WL 2043828, at *10 (emphasis added). As such, Plaintiff’s instructions confirm that

25 the agency had not already “created and retained” the requested records. See Kissinger,

26 445 U.S. at 152. FOIA Requests 6 and 7 are therefore beyond the scope of FOIA.

27 4. Conclusion

28 For these reasons, the Court determines that no genuine issue of material fact

1 precludes summary judgment on the adequacy of Defendants’ searches. Defendants’ MSJ

2 is therefore GRANTED as to Count 7.

3 C. FOIA Withholdings (Count 4)

4 As set forth above (see Sec. I.E.2), Defendants’ withholdings under Exemption 6 are

5 the only remaining withholdings in dispute. Defendants assert that they applied Exemption

6 6 to redact the personally identifiable information (“PII”) of third parties and government

7 employees from records responsive to Plaintiff’s FOIA and Privacy Act Requests. (Doc.

8 22 at 12–17.) Exemption 6 protects from disclosure “personnel and medical files and

9 similar files the disclosure of which would constitute a clearly unwarranted invasion of

10 personal privacy.” 5 U.S.C. § 552(b)(6). As relevant here, “names and identifying

11 information contained in [agency reports] meet the ‘similar file’ requirement.” Forest

12 Serv. Emps. for En’t Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1024 (9th Cir. 2008).

13 Where redacted information is a “similar file” covered by Exemption 6, “a court

14 must balance the public interest in disclosure against the [privacy] interest Congress

15 intended the [e]xemption to protect.” DOJ v. Reporters Comm. for Freedom of the Press,

16 489 U.S. 749, 763 (1989). Courts in the Ninth Circuit employ a two-step burden shifting

17 analysis to determine whether the information was properly withheld. Rojas, 941 F.3d at

18 404. “First, the agency must show that there is a nontrivial privacy interest against

19 disclosure.” Pomares, 113 F.4th at 883 (citing Rojas, 941 F.3d at 405). “[I]f the agency

20 makes that showing, the requester must show that the public interest in disclosure

21 outweighs the asserted privacy interest.” Id. To do so, the requester “must show some

22 nexus between the specific requested information and unveiling agency misconduct[.]”

23 Lahr, 569 F.3d at 978.

24 The Vaughn Index describes the redactions applied to the representative

25 withholdings under Exemption 6, which include the names, social security numbers,

26 telephone numbers, e-mail addresses, military rank, and signatures of third parties and

27 government employees. (See, e.g., Vaughn Index [Doc. 22-1, Ex. 3] at 73–76; Barnett

28 Decl. [Doc. 22-2] ¶¶ 35, 38, 44.) Plaintiff maintains that he is entitled to this information

1 because “the names and emails of the individuals withheld are those of government

2 employees acting in their official capacity and disclosure is what the FOIA demands.”

3 (Doc. 24 at 10.) The Court considers the Vaughn Index and addresses the challenged

4 Exemption 6 withholdings as well as the sufficiency of the Defendants’ justifications for

5 its withholdings.13

6 1. Privacy Interest

7 “[T]he standard for recognizing a nontrivial privacy interest is not demanding. An

8 agency must show that the disclosure would affect employees’ ‘control of information

9 concerning their persons’ or expose them to harassment.” Pomares, 113 F.4th at 884

10 (quoting Rojas, 941 F.3d at 405) (cleaned up); see Cameranesi v. U.S. Dep’t of Def., 856

11 F.3d 626, 638 (9th Cir. 2017) (“Disclosures that would subject individuals to possible

12 embarrassment, harassment, or the risk of mistreatment constitute nontrivial intrusions into

13 privacy under Exemption 6.”).

14 Plaintiff relies on passing references in a Supreme Court case to argue that the term

15 “private citizen” does not include government employees and should therefore “not [be]

16 afforded privacy protection under [E]xemption (b)(6) for their official work.” (Doc. 24 at

17 10–11 (citing Reporters Comm., 489 U.S. at 774.) The Supreme Court, however, has

18 already rejected such contentions. See U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 489

19 (1994) (holding disclosure of federal civil service employees’ home addresses constitutes

20 a “clearly unwarranted invasion” of their personal privacy interests under Exemption 6).

21 Further, the Ninth Circuit has recognized that government employees “have a nontrivial

22 privacy interest” in keeping information, such as their names and contact information, from

23 being disclosed. Pomares, 113 F.4th at 884; see also Forest Serv. Emps. for Env’t Ethics,

24 524 F.3d at 1025 (“[N]either the employees’ status as civil servants nor [the agency’s]

25 disciplinary decisions strip them of their privacy interests under Exemption 6.”). While

1 “individuals do not waive all privacy interests in information relating to them simply by

2 taking an oath of public office, . . . their privacy interests are somewhat reduced.” Lahr,

3 569 F.3d at 977.

4 In this case, Defendants redacted the names and contact information pertaining to

5 third party private individuals and several government employees involved in the agency’s

6 internal FOIA or BCNR investigations such as: (1) “uniformed and civilian” lawyers for

7 the USMC and the Navy, including lawyers for the Judge Advocate General (“JAG”) and

8 the Office of the Government Counsel (“OGC”) (see, e.g., Doc. 22-1, Ex. 3 at 56–62

9 (addressing FOIA Request 1), 67 (addressing FOIA Request 4)); (2) civilian FOIA

10 personnel (id. 67–68 (addressing FOIA Request 4)); (3) BCNR members with a civilian

11 paygrade below “Senior Excepted Service” (id. at 72 (addressing the BCNR Request); see

12 Doc. 22 at 13); and (4) majors, officers, colonels, and lieutenant colonels (id. at 63

13 (addressing FOIA Request 4); id. at 73–76 (addressing FOIA Request 3)). Defendants

14 argue that disclosure of these employees’ PII “could result in the risk of annoyance,

15 harassment, and interruption in their performance of their work functions.” (Id. at 71.)

16 The Court finds that these government employees maintain a privacy interest in their

17 personal identities where such disclosure would affect their “control of information

18 concerning [their] person[s]” or expose them to harassment. Rojas, 941 F.3d at 405

19 (quoting Reps. Comm., 489 U.S. at 763); see Halpern v. FBI, 181 F.3d 279, 297 (2d Cir.

20 1999) (holding that government employees have an interest against the disclosure of their

21 identities to the extent that disclosure might subject them to embarrassment or harassment

22 in their official duties or personal lives). Supervisory employees, such as USMC majors,

23 officers, colonels, may have less interest in personal privacy than lower-level employees

24 but still retain a “nontrivial” interest against disclosure of their identities and contact

25 information. See Pomares, 113 F.4th at 884; see also Dobronski v. FCC, 17 F.3d 275, 280

26 (9th Cir.1994) (“[L]ower level officials . . . generally have a stronger interest in personal

27 privacy than do senior officials.”).

28 Moreover, private third party individuals have a greater privacy interest than

1 government employees because their “identities are less closely connected to government

2 functioning, which is the public interest recognized by FOIA.” Pomares, 113 F.3d at 884;

3 Common Cause v. Nuclear Regul. Comm’n, 674 F.2d 921, 938 (D.C Cir. 1982)

4 (“[Exemption 6] provides greater protection to private individuals”). In a record responsive

5 to the BCNR Request, for example, Defendants redacted the name and case information of

6 a third party individual whose “Board for Correction” case was heard by the same board

7 on the same day as Plaintiff. (Vaughn Index [Doc. 22-1, Ex. 3] at 77; see Doc. 22-1, Ex. 2

8 at 53–54.) As Defendants note, “the perception that one is seeking a records correction can

9 create the impression that there was something derogatory or negative in the record.” (Id.)

10 Private individuals, such as this third party applicant, have a cognizable privacy interest in

11 their identities. See Reporters Comm., 489 U.S. at 780 (“When the subject of [the records]

12 is a private citizen . . . the privacy interest . . . is at its apex.”).

13 Finally, the Court notes that the Vaughn Index did not identify the role of certain

14 employees whose PII was redacted in response to a prior FOIA request. (See Vaughn Index

15 [Doc. 22-1, Ex.3] at 72–73.) Although the Court “cannot fully evaluate the strength of

16 [that] interest,” such employees retain a nontrivial privacy interest in their personal

17 identities. See Pomares, 113 F.4th at 884 (“[T]he standard for recognizing a nontrivial

18 privacy interest is not demanding.”).

19 2. Public Interest

20 As Defendants have shown a nontrivial privacy interest in the redacted information,

21 the burden shifts to Plaintiff to “show that the public interest in disclosure outweighs the

22 asserted privacy interest.” Pomares, 113 F.4th at 883. However, Plaintiff argues that he

23 should not be required to make this showing because “[t]here is no public interest

24 determination as it was never part of the FOIA language.” (Doc. 24 at 13–14.) Plaintiff

25 further contends he has “no requirement [under FOIA] other than to adequately describe

26 the records for the agency to conduct a search.” (Id.) The Court disagrees and finds that

27 Plaintiff’s purported statutory interpretation runs contrary to Supreme Court precedent.

28 In adopting Exemption 6, “Congress sought to construct an exemption that would

1 require a balancing of the individual’s right of privacy against the preservation of the basic

2 purpose of [FOIA] to open agency action to the light of public scrutiny.” U.S. Dep’t of Air

3 Force v. Rose, 425 U.S. 352, 372 (1976) (emphasis added) (cleaned up). As such, the

4 Supreme Court has determined that “[w]here the privacy concerns . . . are present, the

5 exemption requires the person requesting the information to establish a sufficient reason

6 for the disclosure.” Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004)

7 (emphasis added).14

8 As Defendants have identified cognizable privacy interests, the burden shifts to

9 Plaintiff to establish that invasion of those privacy interests is not “clearly unwarranted”

10 based on any existing public interest in disclosure of the redacted information. Lahr, 569

11 F.3d at 973. “[T]he only relevant public interest in the FOIA balancing analysis is the

12 extent to which disclosure of the information sought would shed light on an agency’s

13 performance of its statutory duties or otherwise let citizens know what their government is

14 up to.” Rojas, 941 F.3d at 405 (quoting Bibles v. Or. Nat. Desert Ass’n, 519 U.S. 355,

15 355–56 (1997)). In determining the public’s interest in knowing a government employee’s

16 identity, courts consider the employee’s rank and whether such information would likely

17 disclose official misconduct. See Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984) (reasoning

18 the “level of responsibility held by a federal employee . . . [is an] appropriate

19 consideration[] for determining the extent of the public’s interest in knowing the identity

20 of that censured employee”).

21 In this case, the identities of employees involved in processing the agency’s FOIA

22 requests or in its internal investigations as BCNR members would reveal “little or nothing”

23 about Defendants’ conduct other than information already available to Plaintiff. See

14 Although Favish discusses Exemption 7, its reasoning is nonetheless applicable. See

Cameranesi, 856 F.3d at 638 (“[B]ecause both Exemption 7(C) and Exemption 6 ‘require

27 balancing the public interest with personal privacy, cases interpreting the interest in

personal privacy with regard to one of the two exemptions are useful in the context of the

1 Davidson v. Dep’t of State, 206 F. Supp. 3d 178, 200 (D.D.C. 2016). Although Plaintiff

2 does not attempt to assert any public interest in such disclosure, he suggests that an e-mail

3 record from the 2016 FOIA Request may “potentially [be] a violation of [his] medical

4 privacy rights under the Health Insurance Portability and Accountability Act” because “one

5 of [his] medical documents” was forwarded to an employee “who may or may not have

6 had a legal reason” to view it. (Doc. 24 at 12.) Plaintiff, however, does not identify these

7 documents or allege “more than a bare suspicion” of wrongdoing to overcome the

8 presumption of legitimacy accorded to Defendants’ conduct. See Favish, 541 U.S. at 174

9 (“[T]he requester must produce evidence that would warrant a belief by a reasonable person

10 that the alleged Government impropriety might have occurred.”); see also Beck v. DOJ,

11 997 F.2d 1489, 1493 (D.C. Cir. 1993) (“The identity of one or two individual relatively

12 low-level government wrongdoers, released in isolation, does not provide information

13 about the agency’s own conduct.”).15

14 As these employees’ identities and contact information would not shed light on

15 Defendants’ performance of their statutory duties, and Plaintiff makes no argument

16 asserting a public interest in knowing such information, the general public’s interest in such

17 disclosure is minimal at best. See Pomares, 113 F.4th at 885 (“[E]mail addresses may add

18 to the risk of privacy invasion with little additional benefit to the public interest.”); see,

19 e.g., Davidson, 206 F. Supp. 3d at 200 (finding there was “no public interest” in knowing

20 “the names and contact information” of State Department employees because it would

21 reveal “little or nothing more about the Department’s conduct”); Kearns v. FAA, 312 F.

22 Supp. 3d 97, 112 (D.D.C. 2018) (finding the public’s interest in disclosing “the names,

23 other identifying information, and personal data” of third parties involved in internal

15 The Court also notes that Plaintiff is precluded from raising this argument because the

referenced document was produced in response to the 2016 FOIA Request and he could

27 have raised the issue in Carlborg I. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under

res judicata, a final judgment on the merits of an action precludes the parties or their privies

1 investigations was “nil” because it would not “shed light on the [agency’s] performance of

2 its statutory duties”).

3 Accordingly, the Court determines that these individuals’ interest in keeping their

4 names and other PII private outweighs any public interest in the disclosure of this

5 information and GRANTS the MSJ as to Count 4 on the representative withholdings

6 asserted in the Vaughn Index.

7 D. Privacy Act (Count 6)

8 As an example of an improper withholding under the Privacy Act, Plaintiff identified

9 a record titled “Recorder’s Log” which was produced in response to the BCNR Request.

10 (See Doc. 22-1, Ex. 2 at 53.) Defendants redacted information under Exemption 6

11 pertaining to a third party individual such as the individual’s name, the board’s votes as to

12 the individual’s application to correct his or her military record, and other information

13 related to the individual’s case. (Vaughn Index [Doc. 22-1, Ex. 3] at 77; see Doc. 22-1,

14 Ex. 2 at 53.) Plaintiff now challenges these withholdings as improper under the Privacy

15 Act, arguing that the redacted information “does not meet the statutory criteria of a record

16 [under the Privacy Act] and therefore it cannot be withheld.” (Doc. 24 at 15; see Compl.

17 ¶¶ 67, 77 (“[A] FOIA exemption cannot be the sole justification for withholding under the

18 [Privacy Act].”).) Defendants respond that release of this information would violate the

19 Privacy Act because “the redacted information pertains to a different third-party BCNR

20 applicant[,] . . . does not apply [to Plaintiff,]” and “is not in a system of records pertaining

21 to” Plaintiff. (Vaughn Index [Doc. 22-1, Ex. 3] at 77.)

22 The Court already determined that Defendants properly withheld such information

23 under Exemption 6. (See Sec. III.C.1). However, “[i]f a FOIA exemption covers the

24 documents, but a Privacy Act exemption does not, the documents must be released under

25 the Privacy Act.” See Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d

26 1181, 1184 (D.C. Cir. 1987); 5 U.S.C. § 552a(g) (“No agency shall rely on any exemption

27 contained in [FOIA] to withhold . . . any record which is otherwise accessible to such

28 individual under the provisions of this section.”). The Court must therefore determine

1 whether the Privacy Act allows Plaintiff access to the redacted information.

2 The Privacy Act allows any individual to obtain access to “his record or to any

3 information pertaining to him” that are within a “system of records” maintained by a

4 federal agency.” 5 U.S.C. § 552a(d)(1). However, unlike FOIA, “[t]he Privacy Act . . .

5 does not have disclosure as its primary goal.” Henke v. U.S. Dep’t of Com., 83 F.3d 1453,

6 1456 (D.C. Cir. 1996). As such, the Privacy Act prohibits agencies from disclosing “any

7 record which is contained in a system of records . . . except pursuant to a written request

8 by, or with the prior consent of, the individual to whom the record pertains.” 5 U.S.C.

9 § 552a(b) (emphasis added).

10 The Privacy Act defines a record as:

11 any item, collection, or grouping of information about an individual that is

maintained by an agency, including, but not limited to, his education, financial

transactions, medical history, and criminal or employment history and that

13 contains his name, or the identifying number, symbol, or other identifying

particular assigned to the individual, such as a finger or voice print or a

photograph.

16 5 U.S.C. § 552a(a)(4) (emphasis added). To qualify as a record “subject to restrictive

17 disclosure, [the material] must reflect some quality or characteristic about [the individual].”

18 Unt v. Aerospace Corp., 765 F.2d 1440, 1449 (9th Cir. 1985); see Pierce v. Dep’t of U.S.

19 Air Force, 512 F.3d 184, 188 (5th Cir. 2007) (“To be a Privacy Act record, the information

20 must be both (1) ‘about’ the individual and (2) linked to that individual by name or

21 identifying particular.”); Boyd v. Sec’y of the Navy, 709 F.2d 684, 686 (11th Cir. 1983) (“A

22 record must reflect some quality or characteristic of the individual involved.”) (citing

23 S.Rep. No. 1183; 93d Cong., 2d Sess.).

24 Here, Defendants redacted a “grouping of information” that identifies the third-party

25 individual by name and details that individual’s application history to correct his or her

26 military records. (See Vaughn Index [Doc. 22-1, Ex. 3] at 77.) Plaintiff does not dispute

27 that the unredacted portions of the Recorder’s Log constitute his record as it fully discloses

28 information about his own application. For the same reasons, the redacted information

1 constitutes a record pertaining to the third-party individual, not Plaintiff.

2 Plaintiff relies on a single case where the Eighth Circuit held that the Privacy Act

3 requires disclosure of all material in a requester’s record even if it contains information

4 that does not pertain to the requester. (Doc. 24 at 16 (citing Voelker v. IRS, 646 F.2d 332,

5 334 (8th Cir. 1981).) Courts in the Ninth Circuit, however, have determined that “[u]nder

6 the Privacy Act, an individual may gain access to nonexempt records only if they concern

7 him or her.” Exner v. FBI, 612 F.2d 1202, 1207 (9th Cir. 1980) (Pregerson, J., concurring)

8 (emphasis added); see Schulze v. FBI, No. 1:05-CV-0180AWIGSA, 2010 WL 2902518, at

9 *12 (E.D. Cal. July 22, 2010) (holding Privacy Act claims could not be maintained for

10 “withholding records pertaining to third persons”); Gordon v. FBI, 388 F. Supp. 2d 1028,

11 1046 (N.D. Cal. 2005) (“The Privacy Act gives an individual access to records which

12 pertain to him and are found in a system of records maintained by an agency.”) (emphasis

13 added); Oram v. Wilkie, No. C21-75RSM, 2021 WL 5014537, at *3 (W.D. Wash. Oct. 28,

14 2021) (“Critically, the Privacy Act only authorizes disclosure of a record if it pertains to

15 the requester.”); accord Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1121 (D.C. Cir.

16 2007) (holding the Privacy Act grants “parties access only to their own records, not to all

17 information pertaining to them that happens to be contained in a system of records.”).

18 As in this case, “when materials pertain to both a Privacy Act requester and other

19 individuals from whom the agency has received no written consent permitting disclosure,

20 the Privacy Act’s prohibition on disclosing information without written consent ‘must take

21 precedence,’ and the portions of the record pertaining to those third parties must be

22 withheld.” Mobley v. CIA, 924 F. Supp. 2d 24, 57 (D.D.C. 2013) (quoting Sussman, 494

23 F.3d at 1121); see Carlborg v. Dep’t of the Navy, No. 18-CV-1881 (DLF), 2020 WL

24 4583270, at *7 (D.D.C. Aug. 10, 2020), aff’d sub nom. Carlborg v. United States Dep’t of

25 the Navy, No. 20-5311, 2021 WL 1049467 (D.C. Cir. Mar. 8, 2021) (quoting the same).

26 Because the redacted information is a record pertaining to an individual that is not Plaintiff,

27 and Plaintiff does not provide evidence of that individual’s consent to such disclosure, this

28 is the type of disclosure the Privacy Act prohibits. See 5 U.S.C. § 552a(b). Defendants

1 have therefore properly withheld this information under the Privacy Act. Accordingly,

2 Defendants’ MSJ is GRANTED as to Count 6.

3 E. Remaining Claims

4 Plaintiff argues that the Court should grant him judgment as to Count 1 for delay in

5 processing as to the remaining DOD Request only and Count 8 for failure to provide

6 records in the format requested. (Doc. 24 at 10, 16.) Defendants respond that Plaintiff

7 “waived” these issues through the ENE process and such issues are therefore improperly

8 before the Court. (Doc. 25 at 2.)

9 1. Count 1—Statutory Delay

10 As a preliminary matter, the Court finds that Plaintiff’s statutory delay claims, based

11 on the DOD Request, are moot. In his Opposition, Plaintiff requests that the Court “direct

12 Defendant Department of Defense to provide a response” to his administrative appeal of

13 the DOD Request. (Doc. 24 at 9.) By filing the current lawsuit, however, Plaintiff has

14 availed himself of the only remedy FOIA provides for an agency’s delay in processing a

15 requestor’s FOIA request. See Citizens for Resp. & Ethics in Washington v. Fed. Election

16 Comm’n, 711 F.3d 180, 189–90 (D.C. Cir. 2013) (holding the only remedy for an agency’s

17 delayed processing of a FOIA request is the ability to file suit without first exhausting

18 administrative remedies). Indeed, Plaintiff challenged Defendants’ withholdings in

19 response to the DOD Request. (See Compl. ¶ 77.) However, as discussed supra, the Court

20 found that such withholdings were proper under Exemption 6 and the Privacy Act. As the

21 agency’s alleged delay in processing the administrative appeal does not provide grounds

22 for denying summary judgment, there is nothing further for the Court to adjudicate on this

23 issue. See Yonemoto, 686 F.3d at 689 (holding that an agency’s production of all non-

24 exempt information, “however belatedly, moots FOIA claims.”).

25 2. Count 8—Format

26 As to Count 8, the Court finds that Plaintiff agreed to narrow the scope of the

27 litigation and therefore waived this claim. “[W]aiver is the intentional relinquishment or

28 abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (cleaned

1 up). “Courts generally enforce stipulations that narrow the issues in a case.” Sinicropi v.

2 Milone, 915 F.2d 66, 68 (2d Cir. 1990); see United States v. Burch, 156 F.3d 1315, 1321

3 (D.C. Cir. 1998) (“[I]n the absence of an affirmative indication that Congress intended to

4 preclude or to limit the waiver of statutory protections . . . voluntary agreements to waive

5 [those] protections are presumptively enforceable”). “Just as a party may agree to narrow

6 the case during a pretrial conference, a FOIA plaintiff may agree to do so in a written status

7 report.” Am. Ctr. for L. & Just. v. DOJ, 325 F. Supp. 3d 162, 168 (D.D.C. 2018) (citing

8 Genereux v. Raytheon Co., 754 F.3d 51, 57–59 (1st Cir. 2014)). The common law concept

9 of waiver still applies in such cases, which “includes inferences from the words and actions

10 of the parties.” Cayuga Nation v. U.S. Dep’t of Interior, No. CV 20-2642 (ABJ), 2022 WL

11 888178, at *4 (D.D.C. Mar. 25, 2022) (quoting Molton, Allen & Williams, Inc. v. Harris,

12 613 F.2d 1176, 1179 (D.C. Cir. 1980)).

13 In this case, both Parties expressly agreed to narrow the scope of this litigation prior

14 to briefing the instant MSJ. See Am. Ctr. for L. & Just., 325 F. Supp. 3d at 168 (“Having

15 voluntarily narrowed the case to a set of agreed-upon issues, the plaintiff may be said to

16 have waived the others.”). In the Joint Case Management Statement, “the [P]arties agree[d]

17 that this case should be resolved via summary judgment briefing on the [three] issues

18 listed.” (Doc. 14 at 4.) The Parties’ agreement is again reflected in the subsequent Joint

19 Report where they reiterated the same three legal issues in their “[a]greed-upon list of other

20 areas of dispute to be submitted via summary judgment.” (See Parker Decl. [Doc. 22-1],

21 Ex. 1 at 5.) As there was no further mention of the formatting issue or any other areas of

22 dispute in either agreement, Defendants had no notice to prepare argument or otherwise

23 address such issues in the MSJ.

24 While courts may decline to enforce such waivers “where it would be unjust to do

25 so,” the Court finds that enforcing Plaintiff’s waiver in this case would not be unjust or

26 unreasonable. See id. at 169–70 (noting cases where courts declined to enforce waivers

27 such as a criminal defendant’s waiver of the right to appeal where there is a “colorable

28 claim of ineffective assistance of counsel” and in FOIA litigation where “a showing of

1 || good cause is required to reintroduce an issue that has been explicitly waived”) (quoting

2 || United States v. Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015); Shapiro v. DOJ, No. 13-

3 11555 (RDM), 2016 WL 3023980, at *6—7 (D.D.C. May 25, 2016)). Indeed, Plaintiff

4 ||received records responsive to FOIA Requests 3 and 4, albeit in a single PDF file as

5 ||}opposed to individual PDFs as requested, and had several opportunities to discuss any

7 Parties’ agreement to limit the Court’s involvement to only three issues, and Defendants’

8 ||reliance thereon, the Court finds that Plaintiff knowingly and voluntarily waived his right

9 || to raise such issues. See Am. Ctr. for L. & Just., 325 F. Supp. 3d at 168 (“[B]y agreeing to

10 || limit the Court’s involvement to deciding the parties’ dispute about [the agency’s]

11 || withholdings, [plaintiff] knowingly and voluntarily waived all other issues it might

12 ||reasonably have anticipated”); see also Marcotte v. Palos Verdes Peninsula Unified Sch.

13 || Dist., No. CV 08-1671 PSG (PLAx), 2009 WL 1873024, at *14 (C.D. Cal. June 29, 2009)

14 || (finding the plaintiff waived additional claims where she “only identif[ied] one claim in

15 || the Joint Status Report, [and] indicated her intent to pursue only that claim at trial.’’).

16 IV. CONCLUSION

17 Based on the foregoing reasons, Defendants’ MSJ (Doc. 22) is GRANTED. The

18 || Clerk of Court is instructed to enter judgment accordingly and to close this case.

19 IT IS SO ORDERED.

20 || DATE: July 17, 2025

21 ex Bormads, Monae

9 HON. RUTH BERMUDEZ MONTENEGRO

UNITED STATES DISTRICT JUDGE

'6 Tn denying Plaintiffs administrative appeal of FOIA Request 3, the agency reasoned that

“reproducing the records in separate files would entail executing a new review of

27 approximately 2.3 gigabits of data over the course of roughly an additional 40 to 50 hours”

which it deemed “an undue burden to provide records already in the possession of”

Plaintiff. (Doc. 22-3, Ex. 2 at 21.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.