Peter Pototsky v. Department of Homeland Securit

FILED
NOT FOR PUBLICATION MAR 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PETER POTOTSKY, No. 09-15247
Plaintiff - Appellant, D.C. No. 4:07-cv-00144-DCB
v.
MEMORANDUM *
DEPARTMENT OF HOMELAND
SECURITY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Pototsky’s
request for oral argument is denied.
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09-15247
Peter Pototsky appeals pro se from the district court’s summary judgment
for the Department of Homeland Security in his action under the Freedom of
Information Act, 5 U.S.C. § 552, et seq. (“FOIA”) and the Privacy Act, 5 U.S.C. §
552a, et seq. (“Privacy Act”), seeking redacted material and relief in connection
with an encounter Pototsky, an airplane pilot, had with employees of the United
States Customs and Border Patrol. We have jurisdiction under 28 U.S.C. § 1291.
We review for clear error the district court’s findings of fact, and de novo its
conclusions of law regarding the applicability of a FOIA exemption. Lane v. Dep’t
of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008). We affirm.
The district court did not clearly err by concluding Exemption 7 applies. The
redacted material “could reasonably be expected to constitute an unwarranted invasion
of personal privacy” and “would disclose techniques and procedures for law
enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7), (C) and (E);
Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1047-48 (9th Cir. 1999) (affirming
summary judgment under Exemption 7(C) even though the individuals’ names had
already been disclosed in earlier publicity); Bowen v. U.S. Food and Drug Admin., 925
F.2d 1225, 1228-29 (9th Cir. 1991) (affirming summary judgment under Exemption
7(E) because requested information would compromise future law enforcement
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investigations); see also Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1088 (9th
Cir. 2002) (stating that whether disclosure of the requested information would reveal
anything about the agency’s decisional process “is a fact-based inquiry where deference
to the district court’s findings is appropriate.”) (citation and internal quotation marks
omitted).
The district court did not clearly err by concluding that Pototsky failed to exhaust
administrative remedies under the Privacy Act. See 5 U.S.C. § 552a(g)(1)(A); Hewitt v.
Grabicki, 794 F.2d 1373, 1377-78 (9th Cir. 1986) (denying Privacy Act claim for
failure to exhaust administrative remedies).
AFFIRMED.
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