                                                                           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                             NOT FOR PUBLICATION                            MAR 03 2010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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