Carlborg v. Dep’t of Navy, No. 23-02073, 2025 WL 1994678 (S.D. Cal. July 17, 2025) (Bermudez Montenegro, J.)

Carlborg v. Dep’t of Navy, No. 23-02073, 2025 WL 1994678 (S.D. Cal. July 17, 2025) (Bermudez Montenegro, J.)

Re: Request for records concerning plaintiff’s involuntary discharge from the military

Disposition:  Granting defendants’ motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  “The Court finds that Plaintiff’s claims arising from the FOIA 2 Requests are precluded under the doctrine of res judicata.”  “While Plaintiff’s claims based on FOIA Requests 3, 5–7 are not precluded, the Court [will address] the merits of these claims.”  “As Plaintiff’s present claims implicate multiple FOIA Requests, the Court addresses each FOIA Request to determine whether his claims in both actions arise from the same nucleus of facts and are therefore the same.” “The FOIA 2 Requests are various iterations of Plaintiff’s request for [a] copy of the same e-mail records ‘produced in response to [the 2016 FOIA Request].’”  “As the FOIA 2 Requests seek the same documents as the 2016 FOIA Request, and Plaintiff challenges the same conduct in response to those Requests, the Court finds that Plaintiff’s claims in [earlier litigation] and the present action are the same.”  “While Plaintiff’s claims are based on facially different FOIA Requests made years apart, the FOIA 2 Requests do not expand the scope of the 2016 FOIA Request.  Plaintiff seeks the same e-mail records from the same custodians within the same time frame.”  “The main difference is that Plaintiff now specifically seeks the [Marine Corps Cyber Operations Group (“MCCOG”)] copies of such records.”  “However, any documents in the MCCOG’s possession were necessarily covered by the MCCOG’s original search of its files in response to the 2016 FOIA Request.”  “As these claims arise from the same nucleus of facts, involve the same parties, and the D.C. Court entered a final judgment on the merits, the Court finds that Plaintiff cannot now relitigate the same claim with respect to the 2016 FOIA Request.”
  
  “In FOIA Request 3, Plaintiff requested ‘a copy of any email (with a copy of any attachments) sent to/from [11 individuals] from October 1, 2020 [to the date of the search].’”  “While FOIA Request 3 contains language similar to the 2016 FOIA Request, Plaintiff seeks e-mails sent or received over two years after he filed his D.C. complaint in 2018.” “Because Plaintiff could not have brought a claim in [his earlier litigation] based on documents post-dating the D.C. Court’s final order, such claims are not barred under the doctrine of res judicata.”  “In FOIA Request 5, Plaintiff requests ‘a copy of the file properties from the [2016] CD created . . . in support of [the 2016] FOIA Request.’”  “This Request references the 2016 FOIA Request and thus relates to the same responsive records.”  “However, Plaintiff seeks the file properties of such records, not the e-mail records themselves.”  “The Court finds there is sufficient nuance between the two claims to caution against treating them as the same because FOIA Request 5 seeks different records than those litigated in [the earlier litigation].”  “Plaintiff’s FOIA Request 6 seeks a copy of the records contained in the 2016 CD but in ‘screenshot’ format according to his listed specifications.” “Similarly, FOIA Request 7 seeks ‘a copy of the records that list what is within the copy of the .pst created in response to [the 2017 FOIA Request].’”  “Despite the fact that FOIA Requests 6 and 7 reference the 2016 and 2017 FOIA Requests respectively, they seek screenshots containing information that was not originally requested in the 2016 and 2017 FOIA Requests, such as the size of each file.”  “Additionally, Plaintiff's claims are based on different conduct than that previously challenged in [the earlier litigation].”  “Thus, Plaintiff’s claims concerning FOIA Requests 6 and 7 are not the ‘same’ as those litigated in [the earlier litigation].”
  
  Regarding plaintiff’s claims of delay, the court relates that “[i]n his Opposition, Plaintiff requests that the Court ‘direct Defendant Department of Defense to provide a response’ to his administrative appeal of the DOD Request.”  “By filing the current lawsuit, however, Plaintiff has availed himself of the only remedy FOIA provides for an agency’s delay in processing a requestor’s FOIA request.”  “As the agency’s alleged delay in processing the administrative appeal does not provide grounds for denying summary judgment, there is nothing further for the Court to adjudicate on this issue.”
   
• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The court holds that “[i]n FOIA Request 3, Plaintiff sought e-mails and accompanying attachments sent to or from eleven named individuals which included [plaintiff’s last name as a term] that were sent or received from October 1, 2020 to the date of the search.”  “In response, Defendant Navy searched the eleven individuals’ e-mail boxes for [plaintiff’s last name].”  “By using Plaintiff’s name to search through the e-mail records of the specified individuals during the requested time frame, the Court finds that the agency satisfied its burden to show it conducted a search that was ‘reasonably calculated to discover the requested documents.’”
  
  “In FOIA Request 5, Plaintiff requested ‘a copy of the properties of each file on the [2016] CD from the dialog box tab that includes name of file, size, and the creation date which is registered for each file.’”  The court relates that “[i]n his administrative appeal, Plaintiff challenged the adequacy of the agency’s search on the grounds that the location listed for each of the released records was from a shared network, not from the 2016 CD as he requested.”  “However, as Plaintiff has been made aware, the 2016 CD no longer exists.”  “Thus, [the court finds that] Defendant Navy’s search constitutes ‘a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”
  
  “In FOIA Requests 6 and 7, Plaintiff seeks screenshots of records ‘created in response’ to the 2016 and 2017 FOIA Requests.”  “Defendant Navy determined that Plaintiff ‘effectively [asks the agency] to create new records of responsive records that [Plaintiff] had already received.’”  “While the agency may have provided screenshots on other occasions . . . , ‘FOIA imposes no duty on the agency to create records.’”  “In FOIA Request 6, Plaintiff provided the agency with lengthy instructions on how to create the requested records.”  “To produce Plaintiff’s requested screenshots, the agency would need ‘to open the software and create a screenshot, which would not otherwise exist from the last time the agency opened the software . . . .’”  “As such, Plaintiff's instructions confirm that the agency had not already ‘created and retained’ the requested records.”
   
• Exemption 6: The court relates that “Defendants assert that they applied Exemption 6 to redact the personally identifiable information (“PII”) of third parties and government employees from records responsive to Plaintiff’s FOIA and Privacy Act Requests.”  “As relevant here, ‘names and identifying information contained in [agency reports] meet the “similar file” requirement.’”  “The Vaughn Index describes the redactions applied to the representative withholdings under Exemption 6, which include the names, social security numbers, telephone numbers, e-mail addresses, military rank, and signatures of third parties and government employees.”  “Plaintiff maintains that he is entitled to this information because ‘the names and emails of the individuals withheld are those of government employees acting in their official capacity and disclosure is what the FOIA demands.’”  Regarding the privacy interest, “[t]he Court finds that these government employees maintain a privacy interest in their personal identities where such disclosure would affect their ‘control of information concerning [their] person[s]’ or expose them to harassment.”  “Supervisory employees, such as USMC majors, officers, colonels, may have less interest in personal privacy than lower-level employees but still retain a ‘nontrivial’ interest against disclosure of their identities and contact information.” “Moreover, private third party individuals have a greater privacy interest than government employees because their ‘identities are less closely connected to government functioning, which is the public interest recognized by FOIA.’”  “Finally, the Court notes that the Vaughn Index did not identify the role of certain employees whose PII was redacted in response to a prior FOIA request.”  “Although the Court ‘cannot fully evaluate the strength of [that] interest,’ such employees retain a nontrivial privacy interest in their personal identities.”  Regarding the public interest, the court finds that “[i]n this case, the identities of employees involved in processing the agency’s FOIA requests or in its internal investigations as BCNR members would reveal ‘little or nothing’ about Defendants’ conduct other than information already available to Plaintiff.” “Accordingly, the Court determines that these individuals’ interest in keeping their names and other PII private outweighs any public interest in the disclosure of this information . . . .”