On January 26, 2015, Plaintiff Glenn Bosworth (“Plaintiff”), a federal prisoner proceeding pro se, filed the operative Second Amended Complaint (“SAC”) alleging, as amended,[1] claims against the United States Department of Justice under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and Privacy Act (“PA”), 5 U.S.C. § 552a (collectively, “FOIPA”). (Dkt. No. 17). By this action, Plaintiff seeks “all records relating to [his] underlying case of conviction,” including specifically the “original unaltered recording” of his pre-indictment conversations with the FBI.[2](Id. ¶16).

On January 4, 2016, Defendant filed a Motion for Summary Judgment (“MSJ”). (Dkt. No. 32). Defendant argues that because the FBI has “released, or attempted to release,[3] all non-exempt information [sought by Plaintiff in his FOIPA request], Plaintiff's lawsuit should be dismissed as moot.” (Id. at 1). In support of the MSJ, Defendant filed a Statement of Uncontroverted Facts and Conclusions of Law (“SUF”); the declaration of David M. Hardy, Section Chief of the FBI's Record/Information Dissemination Section (“RIDS”) (“Hardy Decl.”); and the declaration of counsel Chung H. Han (“Han Decl.”). (Id.).

Plaintiff filed an Opposition to the MSJ on April 7, 2016 (“Opp.”). (Dkt. No. 45). In support of the Opposition, Plaintiff filed a Statement of Genuine Disputes of Material Fact (“SGD,” Dkt. No. 46),[4] Plaintiff's declaration (“Bosworth Decl.,” Dkt. No. 451) and, as an exhibit to the Opposition, the declaration of forensic audio expert Kent Gibson (“Gibson Decl.”). (Opp., Exh. A).

*2 On April 14, 2016, Defendant filed a Reply (Dkt. No. 47) and Evidentiary Objections to Plaintiff's and Gibson's declarations (“Evid. Obj.”). (Dkt. No. 48). Four days later, on April 18, 2016, Defendant filed a “Notice of Service by Federal Express” (the “Notice”) to confirm that the FBI had delivered to Plaintiff's son the CD “containing audio pursuant to Plaintiff's FOIPA request,” which the FBI had unsuccessfully attempted to deliver to Plaintiff's sister. (Dkt. No. 49).

Evidently in response to the Reply, on June 10, 2016, Plaintiff filed a document captioned “Motion and Notice to the Court and Appeal to the Office of Information Policy to the Evidence and Records that Were Provided on or about April 18, 2016” (the “Notice”). (Dkt. No. 50). Although the Notice is not entirely clear, Plaintiff appears to complain that the recording produced by Defendant and delivered to Plaintiff's son on April 18, 2016, was not an unredacted copy of the recordings sought by his FOIPA request.[5] (Id. at 2).

Defendant has established that the FBI's search was reasonably calculated to locate all responsive materials, and that the redactions to the documents and the audio CD were authorized by recognized exemptions to FOIA's disclosure requirements. Accordingly, it is recommended that the District Judge issue an Order: (1) accepting this Report and Recommendation; (2) granting Defendant's Motion for Summary Judgment; (3) denying Plaintiff's “Motion and Notice to the Court,” and (4) dismissing this action with prejudice.

Plaintiff submitted a FOIPA request to the FBI on May 21, 2012, requesting audio recordings of his phone calls and meetings with undercover FBI agent “Nancy,” who posed as the mother of an underage child; the video of his interrogation by the FBI that culminated in his arrest on December 18, 2008; the names, titles, and badge numbers of all federal agents involved in his investigation and arrest, as well as their “current contact information,” a description of their “complete chain of command,” and copies of their “oaths of office.” (Hardy Decl., Exh. A at 29-30). Hardy responded approximately one month later, on June 20, 2012, informing Plaintiff that his request did not contain sufficient information to conduct an accurate search and providing him with a blank form request. (Id., Exh. B). Plaintiff completed and returned the form. Plaintiff also asked that the agency send responsive materials to his sister at the address provided. (Id., Exh. C at 36). Hardy acknowledged receipt of the request on July 16, 2012. (Id., Exh. D).

*3 Six months later, on January 31, 2013, Hardy wrote to Plaintiff informing him that although the FBI's Central Records System reflected that “there were records potentially responsive to the FOIPA” request Plaintiff had submitted, “the potentially responsive records were not in their expected location and could not be located after a reasonable search.” (Id., Exh. E at 39). The letter also stated that the FBI later conducted a second search, with the same result. (Id.). The letter explained the appeal procedures available to Plaintiff if he wished to challenge the decision to administratively close Plaintiff's request. (Id.).

On March 19, 2013, Plaintiff filed an appeal in which he asked the Office of Information Policy (“OIP”), to which the appeal was directed, to reopen his case and “forward all information generated to [his] attorney, Mr. Keith Bruno.” (Id., Exh. F at 40; see also Bosworth Decl. ¶ 20). The OIP acknowledged receipt of the appeal on April 5, 2013. (Hardy Decl., Exh. G). On May 30, 2013, Plaintiff sent the OIP a “Certification of Identity” authorizing the FBI to release records to his son at the address provided.[6](Opp., Exh. B; Bosworth Decl. ¶ 21). On December 3, 2013, the OIP informed Plaintiff that it was remanding his request back to the FBI to review and process records located after his appeal had been filed. (Id., Exh. H). Approximately five weeks later, on January 13, 2014, Plaintiff filed the instant federal action.

On September 3, 2014, Hardy released a CD with twenty-three pages of documents from Plaintiff's FBI file, with redactions, to Plaintiff in care of his sister. (Id., Exh. I; Bosworth Decl. ¶ 25). Plaintiff had his sister forward the CD to his son, who described the documents to Plaintiff and informed him that “all names had been redacted” from the documents produced. (Id.). The enclosure letter informed Plaintiff that “Deletions have been made to protect information which is exempt from disclosure, with the appropriate exemptions noted on the page next to the excision.” (Hardy Decl., Exh. I at 45). According to the letter, the redactions were made pursuant to FOIA Exemptions §§ 552(b)(6), (b)(7)(C), and (b)(7)(E).[7] Finally, the letter notified Plaintiff of his right to file an appeal and the procedures for doing so. (Id. at 46). Plaintiff states that he did not file an administrative appeal because the instant federal suit was already pending. (Bosworth Decl. ¶ 26). (stopped here 7/20)

On November 3, 2015, Hardy sent to Plaintiff, in care of his sister, an audio CD to which edits had been made pursuant to the same exemptions asserted in the production of documents. (Hardy Decl., Exh. J.). However, the letter and CD were returned to the FBI by Federal Express as undeliverable because Plaintiff's sister had moved and the address was no longer valid. (Id. ¶ 18). On April 18, 2016, the FBI delivered the package containing the audio CD to Plaintiff's son. (Notice at 1-2).

*4 The Freedom of Information Act requires federal agencies to disclose public information upon a properly made request. 5 U.S.C. § 552(a)(3)(A). “However, the agency need not disclose documents or information falling within any of nine statutory exemptions.” Prudential Locations LLC v. U.S. Dep't of Hous. & Urban Dev., 739 F.3d 424, 429 (9th Cir. 2013) (citing 5 U.S.C. § 552(b)(1)-(9)). “The agency bears the burden of justifying the withholding of information under an exemption.” Prudential Locations, 739 F.3d at 429 (citing 5 U.S.C. § 552(a)(4)(B)).

“ ‘The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.’ ” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). This purpose is accomplished by “ ‘open[ing] agency action to the light of public scrutiny.’ ” U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 772 (1989) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372 (1976)); see also U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994) (FOIA's “core purpose” is to contribute “significantly to public understanding of the operations or activities of the government”) (internal quotation marks and citation omitted).

FOIA provides in relevant part:

Id. § 552(a)(3)(A). Accordingly, a person seeking records under FOIA “must request specific information [from the agency] in accordance with published administrative procedures ....” U.S. v. Steele, 799 F.2d 461, 465-66 (9th Cir. 1986). The description of the material being sought must be “sufficiently detailed so that a professional employee of the agency, familiar with the general subject area, could reasonably be expected to find the desired documents.” Hudgins v. I.R.S., 620 F. Supp. 19, 21 (D. D.C. 1985) (quotation marks and internal citation omitted).

If an agency refuses to produce requested information, FOIA permits an aggrieved party to file a civil action in federal district court requesting that the court order the agency to produce the information. See 5 U.S.C. § 552(a)(4)(B). However, a party whose request is refused “must exhaust his administrative remedies before filing a court action.” Gasparutti v. United States, 22 F. Supp. 2d 1114, 1116 (C.D. Cal. 1998). To state a cause of action under FOIA, a plaintiff must allege that a government agency has (1) improperly (2) withheld (3) agency records. Schiffer v. F.B.I., 78 F.3d 1405, 1408 (9th Cir. 1996); Gasparutti, 22 F. Supp. 2d at 1116 (court lacked subject matter jurisdiction over FOIA claim where plaintiff “failed to allege a request, refusal and exhaustion of his administrative remedies”).

Similarly, the Privacy Act of 1974, 5 U.S.C. § 552a, allows individuals the opportunity to review information about themselves that is maintained in federal agency records. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1119-20 (D.C. Cir. 2007). Individuals seeking information or records about themselves must file a request with the appropriate agency. See 5 U.S.C. § 552a(d). However, as relevant here, the Privacy Act broadly excludes from its disclosure requirements law enforcement records “compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual.” 5 U.S.C. 552a(j)(2)(B). Like FOIA, the Privacy Act authorizes suit by aggrieved parties when an agency refuses to comply with a proper request for disclosure. See id. § 552a(g)(1). As with FOIA claims, the party must exhaust administrative remedies before filing suit in federal court. Biondo v. Dep't of Navy, 928 F. Supp. 626, 630 (D. S.C. 1995). To state a Privacy Act claim, the plaintiff must show “(1) that a request for records was made; (2) that the request was denied; and (3) that such a denial or failure to act was improper under the Privacy Act.” Id. at 631.

*5 There is considerable overlap between FOIA and the Privacy Act and the claims that may be brought under them. As one court has explained,

Polk v. F.B.I., 2016 WL 80564, at *1 (N.D. Cal. Jan. 7, 2016); see also Pierce, 512 F.3d at 191 (FOIA and the Privacy Act overlap but “are not completely coextensive”).

Although discovery may in some circumstances be allowed in a FOIA case, “discovery is limited because the underlying case revolves around the propriety of revealing certain documents. Accordingly, in these cases courts may allow the government to move for summary judgment before the plaintiff conducts discovery.” Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (citation omitted; emphasis added) (citing with approval Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 63 (D. D.C. 2001) (“[D]iscovery is not typically a part of FOIA and Privacy Act cases, and whether to permit discovery is well within the sound discretion of the district court judge.”)); see also Lawyers' Comm. for Civil Rights of San Francisco Bay Area v. U.S. Dep't of the Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008) (“[D]istrict courts typically decide FOIA cases on summary judgment before a plaintiff can conduct discovery. Discovery is usually not permitted in a FOIA case if the government's affidavits were made in good faith and provide specific detail about the methods used to produce the information.”). Accordingly, courts generally require, as a prerequisite to allowing discovery, that the plaintiff impugn the government's declarations on summary judgment with evidence of bad faith or some other deficiency that renders the declarations insufficient. See, e.g., Van Strum v. E.P.A., 680 F. Supp. 349, 352 (D. Or. 1987) (“Summary judgment without discovery is appropriate where the plaintiff has made no showing of agency bad faith sufficient to impugn the agency affidavit. However, where plaintiff or the agency's response raises serious doubts as to the completeness and good faith of the agency's search, discovery is appropriate.”) (internal citations omitted).

Consequently, discovery is “sparingly granted” in FOIA cases, and “is most often limited ‘to investigating the scope of the agency search for responsive documents, the agency's indexing procedures, and the like.’ ” Lawyers' Comm. for Civil Rights, 534 F. Supp. 2d at 1131-32 (quoting O'Reilly, Federal Information Disclosure, § 8:20 (2007 Suppl.)). Even if the court determines that the government's declarations are insufficient, a court can order the government to submit additional declarations as an alternative to permitting discovery. See Pollard v. F.B.I., 705 F.2d 1151, 1154 (9th Cir. 1983).

*6 “[S]ummary judgment is the procedural vehicle by which nearly all FOIA cases are resolved.” Animal Legal Defense Fund v. Food and Drug Admin., 819 F.3d 1102, 1110 (9th Cir. 2016) (per curiam concurrence) (quoting Office of Information Policy, U.S. Dep't of Justice, Guide to Freedom of Information Act: Litigation Considerations 104(2013)). Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, because of the “unique nature” of FOIA cases, Minier v. Central Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996), the summary judgment standard for FOIA claims “is slightly different than for other types of cases ....” Animal Legal Defense Fund, 819 F.3d at 1106 (quoting Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012)). As the Ninth Circuit has explained, “[u]nlike the typical summary judgment analysis, in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute.” Minier, 88 F.3d at 800. Instead, “the standard for summary judgment in a FOIA case generally requires a two-stage inquiry.” Los Angeles Times Commc'ns, LLC v. Dep't of Army, 442 F. Supp. 2d 880, 893 (C.D. Cal. 2006) (citing Minier, 88 F.3d at 800).

First, the court considers whether the agency has established that it fully discharged its obligations by conducting an adequate search for responsive materials. Zemansky v. E.P.A., 767 F.2d 569, 571 (9th Cir. 1985). According to the Ninth Circuit, the agency must:

Id. (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)); see also Kowack v. U.S. Forest Serv., 766 F.3d 1130, 1132 (9th Cir. 2014) (in granting summary judgment in a FOIA case, courts may “rely solely on government affidavits so long as the affiants are knowledgeable about the information sought and the affidavits are detailed enough to allow the court to make an independent assessment” of the adequacy of the search); Wilderness Soc'y v. U.S. Dep't of the Interior, 344 F. Supp. 2d 1, 20 (D. D.C. 2004) (the agency's declarations must describe the resources searched and show that the search was “reasonably calculated to uncover all relevant documents”). “Affidavits submitted by an agency to demonstrate the adequacy of its FOIA response are presumed to be in good faith.” Hamdan v. U.S. Dep't of Justice, 797 F.3d 759, 772 (9th Cir. 2015).

Second, if the agency has met its burden of proving that the search was adequate, the court next considers whether the agency has shown that any withheld information falls within an authorized exemption. 5 U.S.C. § 552(a)(4)(B); Animal Legal Defense Fund, 819 F.3d at 1108 (agency seeking to withhold information under a FOIA exemption “has the burden of proving that the information falls under the claimed exemption”) (quoting GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1112 (9th Cir. 1994)); see also U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (“The burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seems to withhold an entire document.”). “FOIA's nine exemptions” are “construe[d] narrowly.” Animal Legal Defense Fund, 819 F.3d at 1107 (quoting Shannahan v. I.R.S., 672 F.3d 1142, 1148 (9th Cir. 2012)). Accordingly, the government “may not rely upon conclusory and generalized allegations of exemptions,” but must provide “reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption.” Kamman v. I.R.S., 56 F.3d 46, 48 (9th Cir. 1995) (internal quotation marks and citations omitted). Courts generally “accord substantial weight to an agency's declarations regarding the application of a FOIA exemption.” Shannahan, 672 F.3d at 1148. The Ninth Circuit instructs that “[u]ltimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” Hamdan, 797 F.3d at 774 (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

*7 Defendant argues that Bosworth's entire declaration is “irrelevant” and that specific paragraphs “lack foundation,” contain “speculation,” are “hearsay,” violate the “best evidence rule,” or constitute “improper lay opinion.” (Dkt. No. 48 at 1). Defendant also argues that Gibson's declaration, apparently in its entirety, is irrelevant, speculative, and hearsay, lacks foundation, and violates the best evidence rule. (Id.).

Objections based on relevance or the inadmissibility of the form of evidence are generally improper on summary judgment. As one court explained,

Bohnert v. Roman Catholic Archbishop of San Francisco, 136 F. Supp. 3d 1094, 1111 (N.D. Cal. 2015) (declining to consider on summary judgment objections that evidence “lacks foundation, is irrelevant, is inadmissible hearsay, or is responsive to leading questions”).

However, an objection alleging that the proffered evidence is improper lay opinion testimony, which goes to the content of the evidence, may be appropriate on summary judgment. See, e.g., Smith v. Pacific Bell Tel. Co., Inc., 649 F. Supp. 2d 1073, 1088 (E.D. Cal. 2009). Lay opinion testimony is permissible only under the following conditions:

United States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) (quoting Fed. R. Evid. 701). Defendant's “improper lay opinion testimony” objections are directed to two paragraphs of Plaintiff's declaration in which Plaintiff describes the contents of Defendant's Statement of Undisputed Facts and Defendant's Answer to the SAC. (Evid. Obj. at 1) (citing Bosworth Decl.¶¶ 13-14). To the extent that these statements can be considered evidence at all, as opposed to argument, they contain either non-technical information properly within the knowledge of the declarant, in which case the objections are meritless, and/or information that was not material to the resolution of the MSJ, in which case the objections are irrelevant. See Lake v. First Nat. Ins. Co. of America, 2010 WL 4807059, at *7 n.4 (N.D. Cal. Nov. 18, 2010) (overruling evidentiary objections as moot where it was not necessary for the court to consider the challenged exhibits). Accordingly, Defendant's evidentiary objections are OVERRULED.

“FOIA requires an agency responding to a request to ‘demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents.’ ” Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 986 (9th Cir. 2009) (quoting Zemansky, 767 F.2d at 571 (internal quotation marks omitted)). This showing may be made by “reasonably detailed, nonconclusory affidavits submitted in good faith.” Id. (internal quotation marks omitted). As one court has explained,

Vietnam Veterans of Am. Connecticut Greater Hartford Chapter 120 v. Dep't of Homeland Sec., 8 F. Supp. 3d 188, 206 (D. Conn. 2014); see also Int'l Counsel Bureau v. U.S. Dep't of Def., 101 F. Supp. 3d 48, 51 (D. D.C. 2015) (agency affidavits should “identify the searched files and describe at least generally the structure of the agency's file system which makes further search difficult”) (internal quotation marks and citation omitted).

Hardy's declaration describes at length the FBI's Central Records System (“CRS”), the general indices available to locate records, how the indices are organized, and how they are updated. (Hardy Decl. ¶¶ 19-22). Hardy explains that “the CRS is the principal records system searched by [the Records/Information Dissemination Section] to locate information responsive to most FOIA requests, because the CRS is where the FBI indexes information about individuals, organizations, and events for future retrieval.” (Id. ¶ 27). Hardy also describes the FBI's integrated, nationwide electronic case management system, “Automated Case Support” or “ACS,” that allows the government to search an automated CRS index known as the “Universal Index,” or “UNI,” based on identifying information such as an individual's name, date of birth, Social Security Number, race, sex, locality and address, among other terms. (Id. ¶ 24). According to Hardy, “a UNI index search in ACS is capable of locating FBI records created before its 1995 FBI implementation to the present day,” and covers “approximately 112 million searchable records” that are “updated daily with newly indexed material.”[8] (Id.).

To respond to Plaintiff's request, the FBI conducted an index search using manual indices at the Los Angeles Field Office and FBI headquarters, and “a CRS search via the UNI application of ACS” using the terms “Bosworth, Glenn Elvin,” “Bosworth, Glenn E,” and “Bosworth, Glenn” to identify the main files as well as any cross-reference files concerning Plaintiff. (Id. ¶ 26). The FBI also conducted searches using Plaintiff's date of birth and Social Security Number. (Id.). According to Hardy, as a result of these searches, the FBI “located one main investigative file responsive to Plaintiff's FOIPA request.” (Id.). The file consisted of fourteen documents and a media file, which the FBI produced to Plaintiff, subject to certain redactions. (Id.). Hardy states that the searches conducted were comprehensive in “nature and scope,” (id. ¶ 27), and that there is “no indication from the information located as a result of the [ ] search of the manual and automated indices of the CRS that responsive material would reside in any other FBI system or location.” (Id. ¶ 27).

*9 Plaintiff's Opposition raises several arguments, none of which directly challenge the adequacy of the FBI's search for responsive materials. Plaintiff does not argue that any other documents or materials exist that the FBI failed to locate or refused to produce. At most, Plaintiff suggests that there is something suspect in the production because he was originally told that his file could not be found. (Opp. at 11-12). However, the FBI's initial inability to locate Plaintiff's file was rendered moot once the file was actually found. The FBI thoroughly addressed in Hardy's declaration the resources available and the steps it took to locate responsive materials. Plaintiff does not offer any basis for the Court to conclude that additional materials may exist that have not been disclosed, or that the FBI's search was inadequate.

Plaintiff argues repeatedly that he has been denied the opportunity to conduct discovery. However, as the Court explained in its Order Denying Plaintiff's Motion to Reopen Discovery, issued on February 5, 2016, (Dkt. No. 36), discovery in FOIPA cases is “ ‘is only appropriate when an agency has not taken adequate steps to uncover responsive documents,’ and will be denied ‘where an agency's declarations are reasonably detailed, submitted in good faith, and the court is satisfied that no factual dispute exists.’ ” Lawyers' Comm. for Civil Rights, 534 F. Supp. 2d at 1131-32 (quoting O'Reilly, Federal Information Disclosure, § 8:20 (2007 Suppl.)). Even though Plaintiff complains about his inability to conduct discovery, the fact that no discovery has been served by either party does not, by itself, show that the FBI's search was somehow inadequate.

Plaintiff also argues that the FBI improperly attempted to deliver the audio CD to his sister, without confirming her address, and without attempting to deliver the CD to his son or his former lawyer. (Opp. at 16-20). However, even assuming, without deciding, that the FBI's earlier failure to produce the requested audio CD could have provided grounds to defeat summary judgment, the FBI has by now accomplished service of the CD on Plaintiff's son, as Plaintiff admits. (See Notice at 1-2). Because Plaintiff is in constructive possession of the audio recordings and documents found in his file, his arguments based on the failure to deliver the audio CD are moot, and will not defeat summary judgment.

Plaintiff additionally contends that the audio recording produced to his counsel during the underlying criminal proceedings was altered. (See Opp. at 4-10). However, this argument, based on the government's prior conduct, simply does not address whether the FBI presently conducted a search reasonably calculated to uncover all relevant documents that it currently possesses, and does not defeat summary judgment. Accordingly, the Court concludes that Defendant has established the adequacy of the search.

To be entitled to summary judgment, Defendant must also show that any redactions to the materials produced to Plaintiff are authorized by a recognized exemption. With respect to the redaction of documents in Plaintiff's file, Hardy explains in a detailed, document-by-document analysis, that the FBI redacted the “names and identifying information of FBI Special Agents and support personnel” pursuant to FOIA privacy Exemptions 6 and 7(C). (Hardy Decl. at pp. 17-27). With respect to the redaction of the audio CD, Hardy explains that redactions were made under Exemptions 6, 7(C) and 7(E) to protect the identity of the FBI Special Agent who was part of the undercover operation and under Exemptions 6 and 7(C) to excise statements that were made by an unidentified third party who was inadvertently recorded and that are entirely irrelevant to this action. (Id. ¶ 39 & p. 27) (explaining that the statements were picked up due to the party's proximity to Plaintiff in a public place, and that the speaker was not of “investigative interest” to the FBI). The remaining redactions were made under Exemption 7(E) to protect non-public details about the undercover operation itself, including information concerning the “type of device utilized in the surveillance conducted by the FBI ....” (Id. ¶ 41 & pp. 26-27).

*10 “A broad range of personal privacy interests are cognizable under FOIA.” Prudential Locations, 739 F.3d at 430. “Exemption 6 allows an agency to withhold ‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’ ” Prudential Locations, 739 F.3d at 429 (quoting 5 U.S.C. § 552(b)(6)). According to the Supreme Court, “the phrase ‘similar files' was [intended by Congress] to have a broad, rather than a narrow, meaning.” U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 600 (1982). As such, “[a]ll information that applies to a particular individual meets the threshold requirement of Exemption 6 protection regardless of the class of file.” Church of Scientology Int'l v. I.R.S., 845 F. Supp. 714, 724 (C.D. Cal. 1993); see also Washington Post Co., 456 U.S. at 601 (information about an individual does “not lose the protection of Exemption 6 merely because it is stored by an agency in records other than ‘personnel’ or ‘medical’ files”).

In determining whether an agency has properly withheld records or information under Exemption 6, the court first asks “whether the document qualifies under the heading of ‘personnel and medical files and similar files,’ ” and if so, “whether production of the document, or information contained therein, ‘would constitute a clearly unwarranted invasion of personal privacy.’ ” Prudential Locations, 739 F.3d at 429 (quoting Electronic Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 639 F.3d 876, 886 (9th Cir. 2010) & Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1024 (9th Cir. 2008)). “To withhold information under Exemption 6, an agency must show that ‘some nontrivial privacy interest’ is at stake.” Prudential Locations, 739 F.3d at 430 (quoting Dep't of Def., 510 U.S. at 501) (emphasis in original). If there is a nontrivial privacy interest, then “the agency must balance the individual's interest in personal privacy against the public's interest in disclosure.” Prudential Locations, 739 F.3d at 430.

Exemption 7 also protects certain private information from disclosure. “Exemption 7 applies to ‘records or information compiled for law enforcement purposes.’ ” Prudential Locations, 739 F.3d at 434 (quoting 5 U.S.C. § 552(b)(7)). “Such records are exempt from a FOIA request, but only if they satisfy the criteria of at least one of six subcategories of Exemption 7 –Exemptions 7(A) through 7(F).” Prudential Locations, 739 F.3d at 434.

Exemption 7(C) specifically protects from disclosure law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Accordingly, Exemption 7(C), like Exemption 6, recognizes a personal privacy interest, and is subject to the same balancing test that weighs “the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure.' ” Lewis v. F.A.A., 83 F. Supp. 3d 949, 958 (D. Or. 2015) (quoting Lahr, 569 F.3d at 973). However, the Supreme Court instructs that due to differences in the wording of Exemptions 6 and 7(C), “the standard for evaluating a threatened invasion of privacy interests resulting from the disclosure of records compiled for law enforcement purposes [under Exemption 7(C) ] is somewhat broader than the standard applicable to personnel, medical, and similar files [under Exemption 6].” Reporters Comm., 489 U.S. at 756 (footnotes omitted).

Protectable privacy interests include an agent's interest in keeping his or her name from being publicly disclosed. As the Ninth Circuit has explained:

*11 Prudential Locations, 739 F.3d at 433; compare Forest Serv. Emps., 524 F.3d at 1024 (citing with approval cases from other circuits holding that names of agency personnel may be withheld from responses to FOIA requests under Exemption 6), with Electronic Frontier Foundation, 639 F.3d at 887 (the “clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence” outweighs the lobbyists' privacy concerns and warrants disclosure of lobbyists' names “to shed light on which companies and which individuals influence government decision making”).

Here, the FBI properly protected the privacy interests of its employees by redacting their names and other identifying information. As Hardy's declaration explains, disclosure of the names and contact information of FBI agents would subject them to “unofficial questioning as to the conduct of this or other investigations” and could threaten their personal safety, as targeted individuals sometimes “carry a grudge which may last for years” and “may seek revenge on the agents and other federal employees involved in a particular investigation.” (Hardy Decl. 537). Similarly, the identities of support personnel are also properly redacted because if their identities were known, they “could become targets of harassing inquiries for unauthorized access to investigations.” (Id. ¶ 48). Furthermore, the public's interest in the information is slight to non-existent. Knowing whether a particular agent participated in a routine criminal investigation would not increase the public's understanding of the FBI's operations and activities, and thus does not reach FOIA's core purpose. Fed. Labor Relations Auth., 510 U.S. at 495. Similarly, the FBI properly redacted the statements of an unidentified third party from the audio CD. The FBI had no interest in this individual and she had no role in any investigation. (Hardy Decl. 539). The statements did not relate to any matters relevant to this investigation, but were inadvertently picked up by FBI's microphone while taping Plaintiff's conversation with an undercover agent. (Id.). The third party's interest in keeping her statements private greatly outweighs the public's interest in learning their contents.

Accordingly, the Court concludes that the redactions of names, personal identifying information, and the statements of an unknown third party were authorized pursuant to Exemptions 6 and 7(C).

Exemption 7(E) allows agencies to withhold information compiled for law enforcement purposes when the release “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). For information to fall within this Exemption, the agency must establish that the records were compiled for a law enforcement purpose and reveal law enforcement techniques or guidelines that, if disclosed, could reasonably be expected to risk circumvention of the law. Gordon v. F.B.I., 388 F. Supp. 2d 1028, 1035 (N.D. Cal. 2005). Even when the identity of techniques has been disclosed, withholding under Exemption 7(E) is justified if the manner and circumstances of the techniques are not generally known or the disclosure of additional details could reduce their effectiveness. Council on American-Islamic Relations, California v. F.B.I., 749 F. Supp. 2d 1104, 1123 (S.D. Cal. 2010) (citing Bowen v. U.S. Food & Drug Admin., 925 F.2d 1225, 1228-29 (9th Cir. 1991)).

*12 The FBI properly redacted from the audio CD the identity of the undercover agent, including her code name, and other information revealing the techniques and devices used in the undercover operation. Hardy credibly explains that while “it is publicly known that the FBI and other law enforcement agencies engage in different types of surveillance,” the disclosure of nonpublic details “about the type of device used [in the surveillance]” as well as “when, how, and under what circumstances” the surveillance procedure is used, “would allow current and future subjects of FBI investigations and other potential criminals to develop and utilize countermeasures to defeat or avoid different types of surveillances, thus rendering the techniques useless to the FBI and other enforcement agencies.” (Hardy Decl. ¶ 41). Hardy's declaration, including his explanation of the appropriateness of redactions, is entitled to a presumption of good faith, and Plaintiff has provided no basis to defeat that presumption.

Accordingly, the Court concludes that the redactions of the undercover agent's code name, and other information revealing the techniques and devices used in the undercover operation, were authorized pursuant to Exemption 7(E).

Defendant has satisfied its burden to establish that the FBI's search was adequate and that the redactions to the materials produced were authorized. Because the FBI has provided Plaintiff all of the information to which he is entitled, there is nothing left that the Court can order Defendant to produce. Accordingly, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) granting Defendant's Motion for Summary Judgment; (3) denying Plaintiff's “Motion and Notice to the Court”; and (4) dismissing this action with prejudice.

DATED: July 22, 2016.

On June 8, 2015, the Court sua sponte dismissed Defendants (1) United States Attorney General Eric Holder, (2) the FBI, and (3) FBI Director James Comey as improperly named and redundant Defendants. (Dkt. No. 18).

In January 2009, Plaintiff entered into a plea agreement in which he admitted to violating one count of 18 U.S.C. § 2422(b), use of a facility of interstate commerce, i.e., the internet, to induce a minor to engage in criminal sexual activity. See Bosworth v. United States, C.D. Cal. Case No. 13-8352 ODW, Dkt. No. 2 at 2 (memorandum in support of 28 U.S.C. § 2255 motion); id., Exh. B at 15 (executed plea agreement). Plaintiff was sentenced on October 22, 2010 to a term of 108 months. Id. at 2. The Court takes judicial notice of Plaintiff's other actions pending in this Court. See In re Korean Air Lines Co., Ltd., 642 F.3d 685, 689 n.1 (9th Cir. 2011) (a court may take judicial notice of a court's own records in other cases and the records of other courts).

As further discussed below, on September 3, 2014, the FBI provided Plaintiff, via his sister, a CD with copies of twenty-three pages (comprising fourteen documents) from his investigation file. (See Hardy Decl., Dkt. No. 32, Exh. I). On November 3, 2015, the FBI attempted to serve Plaintiff, again via his sister, with an audio CD of requested recordings. (Id., Exh. J at 49). However, the CD was returned to the FBI by Federal Express as undeliverable because Plaintiff's sister had moved and the address was no longer valid. (Id. ¶ 18).

Although functionally a Statement of Genuine Disputes, Plaintiff captioned his statement as a “Statement of Uncontroverted Facts and His Opposition to Defendant's Statement of Uncontroverted Facts.” (Dkt. No. 46).

In his Notice, Plaintiff asks the Court to deny Defendant's MSJ, order Defendant to “admit or deny the re-recording, editing, altering, falsifcation of and fabrication of the audio recording,” and to “[t]ransfer the case at this juncture to the United States District Court Judge ....” (Dkt. No. 50 at 4-5).

Neither Plaintiff's March 2013 appeal nor his May 2013 Certification of Identity explicitly withdrew the prior designation of his sister as the preferred recipient of documents responsive Plaintiff's FOIPA request.

As further discussed below, these FOIA Exemptions protect from disclosure personal private information and information disclosing law enforcement techniques and procedures that could be used to circumvent the law. Although the FBI's letter indicates that the documents would be exempt from disclosure in their entirety under the Privacy Act, 5 U.S.C. § 552a(j)(2), it clarifies that no documents were withheld on that ground. (Hardy Decl., Exh. I at 46).

Plaintiff was arrested and indicted in 2008, long after the FBI's implementation of the ACS electronic storage and retrieval system. (Hardy Decl. ¶ 7).