THE PRIVACY ACT AS A FOIA EXEMPTION B(3) STATUTE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200220002-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 42
• Document Creation Date: December 22, 2016
• Document Release Date: December 8, 2008
• Sequence Number: 2
• Publication Date: September 12, 1984
• Content Type: MEMO

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674 FEDERAL REPORTER, 2d SERIES
ferently. As the opinion explains, the data
offered in this case was not sufficiently
reliable to support such an inference. See
majority op. at 69-71. In particular, plain-
tiff's attempt to control for "special de-
grees" in her regression analysis failed be-
cause of the haphazard method by which
such data were collected. See majority op.
at 70 n.21. See also Tr. V, p. 47 (Testimony
of Dr. Gastwirth). It does not follow, how-
ever, as the petitions for rehearing suggest,
that plaintiffs will be required to provide
job-specific data for every job requiring
special qualifications. Thus I assume that
in appropriate cases, plaintiffs may be able
to make out a prima facie case of disparate
treatment by employing reliable data that
aggregate across jobs requiring specialized
training. In each case, the critical question
is whether there is a reasonable basis for
inferring disparate treatment.
Frank Derek GREENTREE, Appellant,
U. S. CUSTOMS SERVICE, et al.
Frank Derek GREENTREE. Appella'fitl-'_
DRUG ENFORCEMENT ADMINISTRA-
TION, et al.
Nos. 81-1829, 81-1830.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 22, 1982.
Decided March 26, 1982.
Action was brought alleging that Unit-
ed States Customs Service's withholding of
certain investigatory information pertain-
ing to plaintiff was violation of Freedom of
Information Act. On parties' cross motions
for summary judgment, the United States
District Court for the District of Columbia,
John Lewis Smith, Jr., J., 515 F.Supp. 1145
granted defendant's motion for summary
judgment, and plaintiff appealed. The
Court of Appeals, Wald, Circuit Judge, held
that material unavailable under the Privacy
Act was not per,se unavailable under the
Freedom of Information Act.
Reversed and remanded.
1. Records X50
While the Privacy Act was designed to
provide individual with more control over
gathering, dissemination, and accuracy of
agency information about themselves, the
Freedom of Information Act was intended
to increase public's access to governmental
information. 5 U.S.C.A. ? 552a(aX4, 5),
(bx1, 9).
2. Records e-31, 55
Material unavailable under the Privacy
Act is not per se unavailable under the
Freedom of Information Act; applicable
section of Privacy Act represents congres-
sional mandate that Privacy Act not be
used as a barrieyto FOIA access. 5 U.S.
C.A. ? 552(bX3), 552a(bX3), 552a(b)(2), (q).
Appeals from the United States District
Court for the District of Columbia (D.C.
Civil Action Nos. 80-01869 and 80-1007).
Cornish F' Hitchcock, Washington, D. C.,
_. _wi.th. whom Richard ..Manning. Ricks, Wash-
ington. D. C., was on th.: brief,-for appel
lant.
Douglas Letter, Atty., Dept., of Justice,
Washington, D. C., with whom Charles F. C.
Ruff, U. S. Atty., Washington, D. C., at the
time the briefs were filed, and Leonard
Schaitman, Atty., Dept. of Justice, Wash-
ington, D. C., were on the brief, for appel-
lees. Kenneth M. Raisler and John C. Mar-
tin, Asst. U. S. Attys., Washington, D. C.,
also entered appearances, for appellees.
David C. Vladeck and Katherine A. Mey-
er, Washington, D. C., were on the brief, for
amicus curiae, Freedom of Information
Clearinghouse urging reversal.
Before BAZELON, Senior Circuit Judge,
and WALD and GINSBURG, Circuit
Judges.
Opinion for the Court' filed by Circuit
Judge WALD.
WALD, Circuit Judge:
This is a case of first impression in this
circuit. It questions whether the Privacy
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 y Act was designed to
ith more control over
ition, and accuracy of
about themselves, the
Lion Act was intended
access to governmental
C.A. ? 552a(aX4, 5),
tble under the Privacy
navailable under the
ition Act; applicable
't represents congres-
Privacy Act not be
FOIA access. 5 U.S.
x(bX3), 552a(b)(2), (q).
6nited States District
t of Columbia (D.C.
101869 and 80-1007).
Washington, D. C.,
anning Ricks, Wash-
the brief, for appel-
y., Dept. of Justice,
i whom Charles F. C.
tington, D. C., at the
filed, and Leonard
L of Justice, Wash-
the brief, for appel-
er and John C. Mar-
Washington, D. C.,
$, for appellees.
I Katherine A. Mey-
ere on the brief, for
in of Information
vet-sal.
mior Circuit Judge,
NSBURG, Circuit
t filed by, Circuit
impression in this
tether the Privacy
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GREENTREE v. U. S. CUSTOMS SERVICE
Cite as 674 F.2d 74 (1982)
Act, 5 U.S.C. ? 552a, is an exempting stat- ing to import several tons of marijuana into
ute within the meaning of subsection (bX3) the United States, appellant Greentree
("Exemption 3") of tiie Freedom of Infor- brought suit to enjoin state prosecution
mation Act ("FOIA"), 5 U.S.C. ? 5.52(bX3) ~......
n
P
f
q the a ute.... Nevertheless, the district. Court`'_, ?.;
Privacy Act.2` a t
n
d
so I ? . , argued to the district court
that the .district court may consider-appel
that the Privacy no tan Ezeriiption
3 Act was.
lant's FOIA request lade nde
st t
tl
e
v inces us that material unavailable under
empt from disclosure to the same individ-
the Privacy Act is not per se unavailable ual under FOIA Exemption 3. J.A. 28.
under FOIA. Therefore, we reverse the Both GreentCee, J.A. 39, and the govern-
decision of the district court and remand ment J A 29
o
n r- 1z
pretation. Our reading of the relevant subject of the records (first party requester)
statutes and their legislative history con- under the Privacy Act are automatically
ex
wnicn oars access under FOIA to informa-
tion "specifically exempted from disclosure
by [any other] statute."' Although the
government (assuming a position based
upon a longstanding policy), as well as ap-
pellant Greentree, urged otherwise, see
Joint Appendix (J.A.) at 29, 39, the district
court held that criminal law enforcement
information exempt from disclosure under
section (j)(2) of the Privacy Act, see n.15
infra, is automatically exempt under Ex-
emption 3 of FOIA. Greentree v. United
States Customs Service, 515 F.Supp. 1145
(D.D.C.1981); J.A. 41. The government has
now reversed its position and here supports
the decision of the district court. Even so,
we cannot accept the district court' ' t
1. BACKGROUND
After being indicted and convicted in fed-
eral district court in Louisiana for attempt-
I. Exemption 3 provides in full that access un-
der FOIA is barred if the material sought is
specifically exempted from disclosure by
statute (other than section 552b of this title),
provided that such statute (A) requires that
the matters be withheld from the public in
such a manner as to leave no discretion on
the issue, or (B) establishes particular criteria
for withholding or refers to particular types
of matters to be withheld.
5 U.S.C. ? 552(b)(3).
2. It may be, e.g., that appellant has, in any
event, requested material unavailable under
FOIA, as well as the Privacy Act. See, e.g.,
Exemption 7, 5 U.S.C. ? 552(b)(7), which ex-
empts
investigatory records compiled for law en-
forcement purposes, but only to the extent
that the production of such records would
(A) interfere with enforcement proceedings,
upon the same events
Greent
.
ree
sought to gather information relevant to his
civil action by filing FOIA and Privacy Act
requests with the Drug Enforcement Ad-
ministration ("DEA") and the United
States Customs Service ("Customs"). Rely-
ing upon specific exemptions both in FOIA
(not including Exemption 3) and in the Pri-
vacy Act, DEA and Customs refused to
release certain material. Pursuant to 5
U.S.C. ?? 552(aX4)(B) and 552a(gX1),
Greentree sued in federal district court.
Both agencies then moved for summary
judgment. In the case against Customs,
the district court, on its own initiative, re-
quested briefs on t* question of whether
records protected from disclosure to th
e
summary judgment to both DEA
and Customs on the ground that the Priva-
cy Act does qualify as a withholding stat-
ute.' In reaching this conclusion, the dis-
trict court relied upon the statutory lan-
guage and legislative history of the Privacy
(B) deprive a person of a right to a fair trial
or an impartial adjudication, (C) constitute
an unwarranted invasion of personal privacy,
(D) disclose the identity of a confidential
source and, in the case of a record compiled
by a criminal law enforcement authority in
the course of a criminal investigation, or-by
an agency conducting a lawful national se-
curity intelligence investigation, confidential
information furnished only by the confiden-
tial source, (E) disclose investigative tech-
niques and procedures, or (F) endanger the
life or physical safety of law enforcement
personnel ....
3. The district court therefore found it unneces.
sary to consider whether the material sought
was exempt under the other specific exemp-
tions of FOIA raised by the government. See
Affidavits of Salvatore E. Caramagno and
James P. Collier, J.A. 22, 68.
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75
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Act. Further, the district court's analysis
was supported by decisions from the fifth 4
and sevenths circuits, and by dictum in an
earlier opinion of this court .4 Nevertheless,
we cannot uphold the decision. The ques-
tion presented is a difficult one ,7 but we
believe that Congress did not intend the
Privacy Act to bar disclosure under FOIA
Exemption 3.
II. ANALYSIS
A. The Statutory Scheme
[1] Both FOIA and the Privacy Act evi-
dence Congressional concern with open
government, and especially, accessibility of
government records. Each seeks in differ-
ent ways to respond to the potential excess-
es of government. Each, therefore, has its
4. Painter v. Federal Bureau of Investigation,
615 F.2d 689 (5th Cir. 1980).
5. Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir.
1979), cert. denied, 444 U.S. 1013, 100 S.Ct.
662, 62 L.Ed.2d 642 (1980).
6. Duffin v. Carlson, 636 F.2d 709, 711 (D.C.Cir.
1980). -
7. Aware that our decision creates a split among
the circuits, see pp. 86 89 infra. we ap-
proach our task with special care.
8. The term "record" is defined as "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 con-
tains his name, or the identifying number, sym-
bol, or other identifying particular assigned to
the individual, such as a finger or voice print or
a photograph . . . . " 5 U.S.C. ? 552a(a)(4).
9. A "system of records" means "a record in a
system of records under the control of any
agency from which information is retrieved by
the name of the individual or by some identify-
ing number, symbol, or other identifying partic-
ular assigned to the individual ...." 5 U.S.C.
? 552a(a)(5).
10. 5 U.S.C. ? 552a(b)(9) (restriction on disclo-
sure inapplicable to "either House of Congress,
or, to the extent of matter within its jurisdic-
tion, any committee or subcommittee thereof,
any joint committee of Congress or subcommit-
tee of any such joint committee").
11. 5 U.S.C. ? 552a(b)(1) (disclosure allowed
when ordered by a court of competent jurisdic-
tion).
own functions and limitations. 1 K. Davis,
Administrative Law Treatise ? 5:2 (2d
ed. 1978 & Supp. 1980); R. Bouchard &
J. Franklin, Guidebook to the Freedom
of Information and Privacy Acts 21-22
(1980). While the Privacy Act was de-
signed to provide individuals with more
control over the gathering, dissemina-
tion, and accuracy of agency informa-
tion about themselves, FOIA was in-
tended to increase the public's access to
governmental information. Id. The Priva-
cy Act limits access to any "record" 8 con-
tained in a "system of records" a without
the consent of the individual to whom the
record pertains unless disclosure is request-
ed by Congress,1? a court,11 an authorized
ager.:y,12 or cer*in specifically qualified
12. 5 U.S.C. ? 552a(b)(1), (3), (4), (6). (7), (10),
permits disclosure, without first party consent,
(1) to those officers and employees of the
agency which maintains the record who have
a need for the record in the performance of
their duties;
(3) fora fbutine use as defined in subsec-
tion (a)(7) of this section and described under
subsection (e)(4)(D) of this section;
(4 to the Bureau of the Census, for pur-
poses of planning or carrying out a census or
survey or related activity pursuant to the
provisions of title 13;
(6) to the National Archives of the United
States as a record which has sufficient his-
torical or other value to warrant its contin-
ued preservation by the United States
Government, or for evaluation by the Admin-
istrator of General Services or his designee to
determine whether the record has such value;
(7) to another agency or to an instrumen-
tality of any governmental jurisdiction within
or under the control of the United States for
a civil or criminal law enforcement activity if
the activity is authorized by law, and if the
head of the agency or instrumentality has
made a written request to the agency which
maintains the record specifying the particular
portion desired and the law enforcement ac-
tivity for which the record is sought;
(10) to the Comptroller General, or any of
his authorized representatives. in the course
of the performance of the duties of the Gen-
eral Accounting Office ... .
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pets(
over,
der 1
13.
ex(
tio:
 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
ations. 1 K. Davis,
reatise ? 5:2 (2d
); R. Bouchard &
to the Freedom
rivacy Acts 21-22
vacy Act was de-
viduals with more
Hering, dissemina-
agency informa-
a FOIA was in-
public's access to
ets. Id. The Priva-
any "record"8 con-
records" 9 without
idual to whom the
iselosure is request-
irt,ll an authorized
ecifically qualified
(3). (4), (6), (7). (10),
at first party consent,
and employees of the
; the record who have
n the performance of
as defined in subsec-
a and described under
this section;'
the Census,for p.ur-,,,
trying out a census or
city pursuant to the
schives of the United
a:h has sufficient his-
0 warrant its contin-
the United States
luation by the Admin-
ices or his: designee to
cord has such value:
c or to an instrumen.
Cal jurisdiction within
the United States for
nforcement activity if
ed by law, and if the
- instrumentality has
to the agency which
ecifying the particular
law enforcement ac-
ord is sought;
er General, or any of
tatives, in the course
he duties of the Gen-
0
?
GREENTREE v. U. S. CUSTOMS SERVICE
Cite as 674 F.2d 74 (1982)
section except subsections (b), (c)(I) and (2),
(e)(4)(A) through (F), (e)(6), (7); (9), (10),- and
(11), and (i) if the system of records is-
(I) maintained by the Central Intelligence
Agency: or
(2) maintained by an agency or component
thereof which performs as its principal func-
tion any activity pertaining to the enforce-
ment of criminal laws, including police ef-
forts to prevent, control, or reduce crime or
to apprehend criminals, and the activities of
prosecutors, courts, correctional, probation,
pardon, or parole authorities, and which con-
sists of (A) information compiled for the pur-
pose of identifying individual criminal offend-
ers and alleged offenders and consisting only
of identifying data and notations of arrests,
the nature and disposition of criminal
charges, sentencing, confinement, release,
and parole and probation status; (B) infor-
mation compiled for the purpose of a crimi-
nal investigation, including reports of infor-
mants and investigators, and associated with
an identifiable individual: or (C) reports
identifiable to an individual compiled at any
stage of the process of enforcement of the
criminal laws from arrest or indictment
through release from supervision.
At the time rules are adopted under this sub-
section, the agency shall include in the state-
ment required under section 553(c) of this title,
persons,13 or is required by FOIA.14 More- alia, national security and law enforce-
over, even first party access is limited un- ment.ls Similarly, public access to-informa-
der the Privacy Act for reasons of, inter Lion under FOIA is also limited; excluded
13. See 5 U.S.C. ? 552a(b)(5) and (8). which the reasons why the system of records is to be
exempt from the Privacy Act's access limita- exempted from a provision of this section.
tions disclosure (k) Specific exemptions.-The head of any
(5) to a recipient who has provided the agency may promulgate rules, in accordance
agency with advance adequate written assur- with the requirements (including general no-
ance that the record will be used solely as a tice) of sections 553(b)(1), (2), and (3), (c), and
statistical research or reporting record, and (e) of this title, to exempt any system of rec-
the record is to be transferred in a form that ords within the agency from subsections (c)(3),
is not individually identifiable; [and) (d), (e)(1), (e)(4)(G), (H), and (1) and (f) of this
is-
(8) to a section if the system of records is-
person pursuant to a showing of (I) subject to the provisions of section
compelling circumstances affecting the 552(b)(I) of this title;
health or safety of an individual if upon such (2) investigatory material compiled for law
disclosure notification is transmitted to the enforcement purposes, other than material
last known address of such individual .... within the scope of subsection (j)(2) of this
14. 5 U.S.C. ? 552a(b)(2) (expressly insuring section: Provided, however. That if any indi-
public access to any material available under vidual is denied any right, privilege, or bene-
FOIA). Cf. 5 U.S.C. ? 552a(g) ("No agency fit that he would otherwise be entitled by
shall rely on any exemption contained in sec- Federal law, or for which he would otherwise
tion 552 of this title [FOIA] to withhold from an be eligible, as a result ofr/he maintenance of
individual any record which is otherwise acces- such material, such material shall be provid-
sible to such individual under the provisions of ed to such individual, except to the extent
this section."). that the disclosure of such material would
15. 5 U.S.C. ? 552a(j) and (k): reveal the identity of a source who furnished
information to the Government under an ex-
(j) General exemptions. The head of any press promise that the identity of the source
agency may promulgate rues, in accordance
with the requirements would be held in confidence, or, prior to the
(including general no- effective date of this section, under an im-
tice) of sections 553(b)(l), (2), and (3), (c), and plied promise that"the identity of the source
(e) of this title, to exempt any system of rec- would be held in confidence;
ords..within the agency-from any part, of this .......
'
13)
maintained in connection with provid-
ing protective services to the President of -the
United States or other individuals-pursuant
to section 3056 of title 18;
(4) required by statute to be maintained
and used solely as statistical records;
(5) investigatory material compiled solely
for the purpose of determining suitability,
eligibility, or qualifications for Federal civil-
ian employment, military service, Federal
contracts, or access to classified information,
but only to the extent that the disclosure of
such material would reveal the identity of a
source who furnished information to the
Government under an express promise that
the identity of the source would be held in
confidence, or, prior to the effective date of
this section, under an implied promise that
the identity of the source would be held in
confidence;
(6) testing or examination material used
solely to determine individual qualifications
for appointment or promotion in the Federal
service the disclosure of which would com-
promise the objectivity or fairness of the test-
ing or examination process: or
(7) evaluation material used to determine
potential for promotion in the armed serv-
ices, but only to the extent that the disclosure
of such material would reveal the identity of
a source who furnished information to the
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76
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Act. Further, the district court's analysis
was supported by decisions from the fifth 4
and sevenths circuits, and by dictum in an
earlier opinion of this court .6 Nevertheless,
we cannot uphold the decision. The ques-
tion presented is a difficult one,7 but we
believe that Congress did not intend the
Privacy Act to bar disclosure under FOIA
Exemption 3.
II. ANALYSIS
A. The Statutory Scheme
[1] Both FOIA and the Privacy Act evi-
dence Congressional concern with open
government, and especially, accessibility of
government records. Each seeks in differ-
ent ways to respond to the potential excess-
es of government. Each, therefore, has its
4. Painter v. Federal Bureau of Investigation,
615 F.2d 689 (5th Cir. 1980).
5. Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir.
1979), cert. denied, 444 U.S. 1013, 100 S.Ct.
662, 62 L.Ed.2d 642 (1980).
6. Duffin v. Carlson, 636 F.2d 709, 711 (D.C.Cir.
1980).
7... Aware that our decision creates a split among
the circuits, see pp. 86 89 infra. we ap-
proach our task with special care.
8. The term "record" is defined as "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 con-
tains his name, or the identifying number, sym-
bol, or other identifying particular assigned to
the individual, such as a finger or voice print or
a photograph ...." 5 U.S.C. ? 552a(a)(4).
9. A "system of records" means "a record in a
system of records under the control of any
agency from which information is retrieved by
the name of the individual or by some identify-
ing number, symbol, or other identifying partic-
ular assigned to the individual ...... 5 U.S.C.
? 552a(a)(5).
10. 5 U.S.C. ? 552a(b)(9) (restriction on disclo-
sure inapplicable to "either House of Congress,
or, to the extent of matter within its jurisdic-
tion, any committee or subcommittee thereof,
any joint committee of Congress or subcommit-
tee of any such joint committee").
11. 5 U.S.C. ? 552a(b)(1) (disclosure allowed
when ordered by a court of competent jurisdic-
tion).
own functions and limitations. 1 K. Davis, p'rso
Administrative Law Treatise ? 5:2 (2d over,
ed. 1978 & Supp. 1980); R. Bouchard & der I
J. Franklin, Guidebook to the Freedom
of Information and Privacy Acts 21-22
(1980). While the Privacy Act was de-
signed to provide individuals with more
control over the gathering, dissemina-
tion, and accuracy of agency informa-
tion about themselves, FOIA was in-
tended to increase the public's access to
governmental information. Id. The Priva-
cy Act limits access to any "record" 8 con-
tained in a "system of records" 9 without
the consent of the individual to whom the
record pertains unless disclosure is request-
ed by Congress,1? a court,11 an authorized
agency,12 or cerain specifically qualified
12. 5 U.S.C. ? 552a(b)(1), (3), (4), (6). (7), (10),
permits disclosure, without first party consent,
(1) to those officers and employees -ef -the-
agency which maintains the record who have
a need for the record in the performance of
their duties;
(3) foe a routine use as defined in subsec.
tion (a)(7) of this section and described under
subsection (e)(4)(D) of? this- section;
(4) to the Bureau of the Census for pur-
poses of planning or carrying out a census or
survey or related activity pursuant to the
provisions of title 13;
(6) to the National Archives of the United
States as a record which has sufficient his-
torical or other value to warrant its contin-
ued preservation by the United States
Government, or for evaluation by the Admin-
istrator of General Services or his designee to
determine whether the record has such value;
(7) to another agency or to an instrumen-
tality of any governmental jurisdiction within
or under the control of the United States for
a civil or criminal law enforcement activity if
the activity is authorized by law, and if the
head of the agency or instrumentality has
made a written request to the agency which
maintains the record specifying the particular
portion desired and the law enforcement ac-
tivity for which the record is sought:
(10) to the Comptroller General, or any of
his authorized representatives, in the course
of the performance of the duties of the Gen-
eral Accounting Office ....
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13.
ex(
tioi
 nations. 1 K. Davis,
Treatise ? 5:2 (2d
30); R. Bouchard &
)k to the Freedom
Privacy Acts 21-22
rivacy Act was de-
lividuals with more
ithering, dissemina-
)f agency informa-
es, FOIA was in-
ie public's access to
ion. Id. The Priva-
o any "record" 8 con-
.f records" 9 without
ividual to whom the
disclosure is request-
lurt," an authorized
specifically qualified
). (3), (4), (6). (7), (10),
out first party consent,
and employees of the
ns the record who have
in the performance of
e as defined in subsec-
on and described under
f this section;
A the. Census for pur-
arrying out a census or
tivity pursuant to the
Archives of the United
tich has sufficient his-
to warrant its contin-
e the United States
aluation by the Admin-
vices or his designee to
record has such value;
cy or to an instrumen-
?ntal jurisdiction within
d the United States for
enforcement activity if
zed by law, and if the
5r instrumentality has
;t to the agency which
pecifying the particular
,e law enforcement ac-
cord is sought;
fler General, or any of
ntatives, in the course
the duties of the Gen-
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GREENTREE v. U. S. CUSTOMS SERVICE 77
Cite as 674 F.2d 74 (1982)
persons,'3 or is required by FOIA.'4 More-
over, even first party access is limited un-
der the Privacy Act for reasons of, inter
13. See 5 U.S.C. ? 552a(b)(5) and (8). which
exempt from the Privacy Act's access limita-
tions disclosure
(5) to a recipient who has provided the
agency with advance adequate written assur-
ance that the record will be used solely as a
statistical research or reporting record, and
the record is to be transferred in a form that
is not individually identifiable; [and]
(8) to a person pursuant to a showing of
compelling circumstances affecting the
health or safety of an individual if upon such
disclosure notification is transmitted to the
last known address of such individual ....
14. 5 U.S.C. ? 552a(b)(2) (expressly insuring
public access to any material available under
FOIA). Cf. 5 U.S.C. ? 552a(g) ("No agency
shall rely on any exemption contained in sec-
tion 552 of this title (FOIA] to withhold from an
individual any record which is otherwise acces-
sible to such individual under the provisions of
this section.").
15. 5 U.S.C. ? 552a(j) and (k):
(j) General exemptions.-The head of any
agency may promulgate ru!es, in accordance
with the requirements (including general no-
tice) of sections 553(b)(1), (2), and (3), (c), and
(e) of this title, to exempt any system of rec-
ords within the agency from any part of this
section except subsections (b), (c)(1) and (2),
(e)(4)(A) through (F), (e).(6), (7), (9), (10), and
(11), and (i) if the system of records is-
(1) maintained by the Central Intelligence
Agency; or
(2) maintained by an agency or component
thereof which performs as its principal func-
tion any activity pertaining to the enforce-
ment of criminal laws, including police ef-
forts to prevent, control, or reduce crime or
to apprehend criminals, and the activities of
prosecutors, courts, correctional, probation,
pardon, or parole authorities, and which con-
sists of (A) information compiled for the pur-
pose of identifying individual criminal offend-
ers and alleged offenders and consisting only
of identifying data and notations of arrests.
the nature and disposition of criminal
charges, sentencing, confinement, release,
and parole and probation status; (B) infor-
mation compiled for the-purpose of a crimi-
nal investigation, including reports of infor-
mants and investigators, and associated with
an identifiable individual; or (C). reports.
identifiable to an individual compiled at any
stage of the process of enforcement of the
criminal laws from arrest or indictment
through release from supervision.
At the time rules are adopted under this sub-
section, the agency shall include in the state-
ment required under section 553(c) of this title,
alia, national security and law enforce-
ment.15 Similarly, public access to informa-
tion under FOIA is also limited; excluded
the reasons why the system of records is to be
exempted from a provision of this section.
(k) Specific exemptions.-The head of any
agency may promulgate rules, in accordance
with the requirements (including general no-
tice) of sections 553(b)(1), (2), and (3), (c), and
(e) of this title, to exempt any system of rec-
ords within the agency from subsections (c)(3),
(d), (e)(l), (e)(4)(G), (H), and (1) and (f) of this
section if the system of records is-
(1) subject to the provisions of section
552(b)(I) of this title;
(2) investigatory material compiled for law
enforcement purposes, other than material
within the scope of subsection (j)(2) of this
section: Provided, however, That if any indi-
vidual is denied any right, privilege, or bene-
fit that he would otherwise be entitled by
Federal law, or for which he would otherwise
be eligible, as a result,f the maintenance of
such material, such material shall be provid-
ed to such individual, except to the extent
that the disclosure of such material would
reveal the identity of a source who furnished .--
information to the Government under an ex-
press promise that the identity of the source
would be held in confidence, or, prior to the
effective date of this section, under an im-
plied promise tltatjhe identity of the source
would be held in confidence;
(3) maintained in connection with provid-
ing protective services to the President of the
United States or other individuals pursuant
to section 3056 of title 18;
(4) required by statute to be maiptained
and used solely as statistical records;
(5) investigatory material compiled solely
for the purpose of determining suitability,
eligibility, or qualifications for Federal civil-
ian employment, military service, Federal
contracts, or access to classified information,
but only to the extent that the disclosure of
such material would reveal the identity of a
source who furnished information to the
Government under an express promise that
the identity of the source would be held in
confidence, or, prior to the effective date of
this section, under an implied promise that
the identity of the source would be held in
confidence;
(6) testing or examination material used
solely to determine individual qualifications
for appointment or promotion in the Federal
service the disclosure of which would com-
promise the objectivity or fairness of the test-
ing or examination process; or
(7) evaluation material used to determine
potential for promotion in the armed serv-
ices, but only to the extent that the disclosure
of such material would reveal the identity of
a source who furnished information to the
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?
78
?
0
674 FEDERAL REPORTER, 2d SERIES
from FOIA's disclosure requirements are
national security and internal agency mat-
ters, matters "specifically exempt" by other
statutes, confidential business information,
deliberative internal communications within
the executive branch, information about in-
dividuals disclosure of which would consti-
tute a "clearly unwarranted invasion of per-
sonal privacy," certain investigatory records
compiled for law enforcement purposes, rec-
ords relating to the examination of finan-
cial institutions and records containing oil
well information.16
It is readily apparent from the foregoing
review that the Privacy Act and FOIA sub-
stantially overlap. However, it is apparent
also that the two statutes are not complete-
ly coextensive; each provides or limits ac-
cess to material not opened or closed by the
other. For example, while both restrict
access to investigatory material, they do so
to a different degree and under different
conditions. Compare 5 U.S.C. ? 552(bX7)
Government under an express promise that
the identity of the source would be held in
confidence, or, prior to'the effective date of
this section, under an implied promise that
the identity of the source would be held in
confidence.
At the time rules are adopted under this sub-
section, the agency shall include in the state-
ment required under section 553(c) of this title,
the reasons why the system of records is to be
exempted from a provision of this section.
16. 5 U.S.C. ? 552(b) provides that FO1A does
not "apply" to matters that are:
(1)(A) specifically authorized under crite-
ria established by an Executive order to be
kept secret in the interest of national defense
or foreign policy and (B) are in fact properly
classified pursuant to such Executive order;
(2) related solely to the internal personnel
rules and practices of an agency;
(3) specifically exempted from disclosure
by statute (other than section 552b of this
title), provided that such statute (A) requires
that the matters be withheld from the public
in such a manner as to leave no discretion on
the issue, or (B) establishes particular criteria
for withholding or refers to particular types
of matters to be withheld;
(4) trade secrets and commercial or finan-
cial information obtained from a person and
privileged or confidential;
(5) inter-agency or intra-agency memoran-
dums or letters which would not be available
with 5 U.S.C. ?? 552a(j)(2) and (k)(2) and
(5).
The present case questions the relation-
ship between section (jX2) of the Privacy
Act and Exemption 3 of FOIA. After hold-
ing that the material sought was unavaila-
ble to Greentree under section (jX2) of the
Privacy Act, the district court began its
statutory analysis of this question by exam-
ining the language of section (bX2) of the
Privacy Act:
No agency shall disclose any record which
is contained in a system of records by any
means of communication to any person,
or to another agency, except pursuant to
a written request by, or with the prior
written consent of, the individual to
whom the recd pertains, unless disclo-
sure of the record would be-
(2) required under section 552-of this-.
title [FOIA]
5 U.S.C. ? 552a(b)(2). The court summarily
rejected the argument that this provision
by law to a party other than an. agency.in
litigation with the agency;
(6) personnel and medical files and similar
files the disclosure of which would constitute
a clearly unwarranted invasion of personal
privacy; 1
(7) investigatory records compiled for law
enforcement purposes, but only to the extent
that the production of such records would
(A) interfere with enforcement proceedings,
(B) deprive a person of a right to a fair trial
or an impartial adjudication, (C) constitute
an unwarranted; invasion of personal privacy,
(D) disclose the identity of a confidential
source and, in the case of a record compiled
by a criminal law enforcement authority in
the course of a criminal investigation, or by
an agency conducting a lawful national se-
curity intelligence investigation, confidential
information furnished only by the confiden-
tial source. (E) disclose investigative tech-
niques.and procedures, or (F) endanger the
life or physical safety of law enforcement
personnel;
(8) contained in or related to examination,
operating, or condition reports prepared by,
on behalf of, or for the use of an agency
responsible for the regulation or supervision
of financial institutions; or
(9) geological and geophysical information
and data, including maps, concerning wells.
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 a(jx2) and (kX2) and
luestions the relation-
(jX2) of the Privacy
of FOIA. After hold-
sought was unavaila-
!r section (JX2) of the
trict court began its
,his question by exam-
- section (bX2) of the
!lose any record which
tern of records by any
cation to any person,
y, except pursuant to
oy, or with the prior
f, the individual to
ertains, unless disclo-
vould be-
?r section 552 of this
The court summarily
t that this provision
aher than an agency in
ency:
medical files and similar
'which-would constitute
d invasion of personal
cords compiled for law
s, but only to the extent
of such records would
%forcement proceedings,
of a right to a fair trial
dication, (C) constitute
lion of personal privacy,
otity of -'a confidential
se of a record compiled
tforcement authority in
inal investigation, or by
g a lawful national se-
vestigation, confidential
i only by the confiden-
lose investigative tech-
es. or (F) endanger the
ty of law enforcement
related to examination,
)n reports prepared by.
the use of an agency
;gulation or supervision
as; or
geophysical information
naps, concerning wells.
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0 ?
GREENTREE v. U. S. CUSTOMS SERVICE 79
Cite as 674 F.2d 74 (1982)
indicated that the Privacy Act was not de- ter. However, we are not it liberty to limit
signed to affect obligations under FOIA, the safeguards of (h)(2), which extend to
concluding that the notion merely "begs the requests by "any person." Our under-
question ... of whether information ex- standing of the extent of (h)(2)'s coverage is
empt under the Privacy Act can, in fact, be reenforced by the very language of section
required to be disclosed under FOIA." (j) of the Privacy Act. The authority
Greentree, 515 F.Supp. at 1147. For the granted an agency head by that section is,
district court, that question was resolved by with exceptions not relevant here, specifi-
FOIA Exemption 3. cally limited to exempting "any system of
Since the Privacy Act does refer to par- records within the agency from any part of
ticular types of matters to be withheld- this section .... " 5 U.S.C. ? 552a(j) (empha-
all material generated by the exempt sys- sis added). In context, the words "this sec-
tems-the Privacy Act is, by the plain tion" can only refer to section 552a, i.e., the
language of FOIA, within the (bX3) stat- Privacy Act. The specific exceptions to the
utory exemption. general exemption, "subsections (b), (c)(1)
Id. at 1147. and (2), (e)(4)(A) through (F), (e)(6), (7), (9),
Our statutory analysis both begins at a and (11), and (i)," are subsections of the
different point and reaches a different con- Privacy Act.19 This portion of the statute
elusion. Under our analysis, there is no thus appears to beieelf-contained: the gen-
need to determine whether section (jX2) of eral exemptions, as well as the specific ex-
the Privacy Act meets any of the alterna- ceptions, limit only other provisions of the
tive qualifications of an Exemption 3 stat- Privacy Act itself.
ute.17 Further, we see no need to dwell
long upon the apparent circularity of sec- Further, were we to accept the govern-
long
(b)(2) of the Privacy Act in mandating ment's argument, a so-called "third party
disclosure of only that which is "required" anomaly" would result. That is, a third
by FOIA (including its Exemption 3).18 party might gain access to material under
Frankly, we are unimpressed 'kith tie cfiF- FOIA about an individual unavailablii -'to
covery that section (b)(2).is somewhat circu that individual himself, because of:?Privacy
lar. Why was that section inserted into the Act section 0)(2). Such a result would com-
Privacy Act at all if that act were meant to port with neither logic nor comS7ton sense.
be a FOIA 3 withholding statute? We If such material were allowed into the pub-
must conclude, contrary to the district lie domain, how could it he kept from the
court, that section (bX2) of the Privacy Act party whom it concerned? Obviously, any
represents a Congressional mandate that such harrier to first party access could easi-
the Privacy Act not be used as a barrier to ly be circumvented by the first party's sim-
FOIA access. ply locating someone else to act as a third
The government acknowledges that sec- party FOIA requester.
tion (b)(2) of the Privacy Act does safe- The government acknowledges the anom-
guard FOIA access to the public, but it asks aly, but suggests that it would arise too
us to deny that access to first party reques- rarely to justify concern:
17. See generally, Note, The Effect of the 1976 is circular 1 h f
n t
f
Amendment to Exemption Three of the Free-
dom of Information Act, 76 Colum.L.Rev. 1028,
1043-46 (1976).
.
e ace o
the disclaimer, the
government's efforts to mesh the two bills
when faced with litigation over the nondis-
closure of records to
t
pro
ect privacy may
18. Indeed, the Senate Staff, considering a simi- meet considerable difficulty.
lac
bl
"
"
pro
em of
circularity
between the Priva-
cy Act and Exemption 6 prophetically ob-
served:
Since the FOI Act itself authorizes the refusal
of disclosure where this would constitute an
Memorandum, reprinted in 120 Cong.Rec. 40412
Legislative History of the Privacy Act of 1974,
S. 3418 (Public Law 93-579), Source Book on
Privacy 875 (1976) (hereinafter Source Book).
"unwarranted invasion of privacy" the priva- 19. The specific exemption section, 5 U.S.C.
cy bill's disclaimer of any intent to affect FOI ? 552a(k), is similarly limited. See n.?15 supra.
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80
674 FEDERAL REPORTER, 2d SERIES
In the vast majority of cases, a third
party would be prevented from obtaining
access to records about another individual
covered by the Privacy Act (particularly
if they are law enforcement records) be-
cause of the FOIA privacy exemptions
(FOIA Exemptions 6 and 7(c)). Under
the balancing test used to implement
these exemptions, such an invasion of pri-
vacy is permitted only where it is out-
weighed by a countervailing strong public
interest in disclosure. Dept. of Air Force
v. Rose, 425 U.S. 352, 370-76 [96 S.Ct.
1592, 1603-06, 48 L.Ed.2d 11] (1976).
Moreover, a "third party anomaly" can
only occur where records can and actually
have been exempted from access under
the Privacy Act, but are nonetheless
available through the FOIA. Thus, put-
ting aside its value for academic discus-
sion, the "third party anomaly" is in actu-
ality a minor problem at best.
Government's Brief at 36 n.18.
We find both parts of the government's
response unsatisfactory. First, we are not
convinced that by balancing "an invasion of-
privacy" against a "strong public interest in
disclosure" under FOIA, third party access
will be barred when the third party is hand
chosen by a first party who has, in effect,
waived all privacy interests. Even the Pri-
vacy Act allows third party access to mate-
rial, normally protected from public access,
with the consent of the individual to whom
the material pertains. 5 U.S.C. ? 552a(b).
Second, while we agree that the anomaly
would occur only when records were ex-
empt under the Privacy Act but publicly
available under FOIA-indeed, as we un-
derstand it, that is the definition of the
"third party anomaly"-we are not com-
20. In making its argument, the Government
draws upon dictum in a recent decision of this
court, per MacKinnon, J.:
Congress indicated in its latest enactment,
i.e., the Privacy Act, that "it would not be.
appropriate to allow individuals to see their
own intelligence or investigative files" con-
taining "sensitive and usually confidential in-
formation." ... From the Privacy Act's pro-
hibition it can be strongly argued that Con-
gress foreclosed disclosure of the same confi-
dential information under the Freedom of In-
formation Act. Why would Congress in one
forted by the reminder. Since the district
court did not address itself to whether the
material sought here would be publicly
available under FOIA, we must assume that
we are now confronted with a rare case.
The "third party anomaly," therefore, does
indeed suggest to us that Congress could
not have intended section (iX2) of the Pri-
vacy Act to serve as a withholding statute
under FOIA Exemption 3.
The district court and the government,
however, have raised a different "anoma-
ly," which. they say will result if an individ-
ual denied access to his records under sec-
tion (jx2) of the Privacy Act is allowed to
obtain at least some of that material under
FOIA?0 By allo0ing first party requesters
to pursue alternative access routes, it is
suggested that section (jx2) would be "ren-
der[ed] meaningless." Green tree, ---515-
F.Supp. at 1148; Government's Brief at 17.
We consider this to be a false anomaly,
readily recognized as such by noting that
the exemptions of the Privacy Act and
FOIA differ in -purpose and, therefore,. in
scope. Although both section (iX2) of the
Privacy.Act.and Exemption 7 of FOIA limit
access to law enforcement records, they do
so to a different extent. Unless section
(jx2) is implemented, first party access un-
der the Privacy Act to law enforcement
records would be broader than such access
under FOIA. Access under FOIA can be
restricted if production of records would
(A) interfere with enforcement proceed-
ings, (B) deprive a person of a right to a
fair trial or an impartial adjudication, (C)
constitute an unwarranted invasion of
personal privacy, (D) disclose the 'identity
of a confidential source and, in the case
Act categorically prohibit disclosure of infor-
mation furnished by informants and in anoth-
er Act compel disclosure of the same confi-
dential information?
Duffin v. Carlson, 636 F.2d 709, 711 (D.C.Cir.
1980). While we cannot accept the govern-
ment's ultimate argument that anything ex-
empted from first party access under the Priva-
cy Act is also exempted from FOIA access, we
do agree that confidential information supplied
by informants which is inaccessible under the
Privacy Act may be inaccessible under FOIA, 5
U.S.C. ? 552(b)(7)(D), as well.
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: district
ther the
publicly
ime that
re case.
-re, does
3s could
the Pri-
statute
rnment,
`anoma-
individ-
Jer sec-
)wed to
.1 under
luesters
s, it is
oe "ren-
515
f at 17.
iomaly,
Ig that
ct. and
ore, in
of the
A limit
hey do
section
ass un-
ement
access
an be
would
-oceed-
ittoa
on, (C)
ion of
!entity
e case
f infor-
anoth-
confi-
'.C.Cir.
:overn-
:tg ex-
Priva-
ss, we
ipplied
ter the
OIA. 5
GREENTREE v. U. S. CUSTOMS SERVICE
Cite as 674 F.2d 74 (1982)
of a record compiled by a criminal law B. The Legislative History
enforcement authority in the course of a
criminal investigation, or by an agency
conducting a lawful national security in-
telligence investigation, confidential in-
formation furnished only by the confiden-
tial source, (E) disclose investigative tech-
niques and procedures, or (F) endanger
the life or physical safety of law enforce-
ment personnel... .
5 U.S.C. ? 552(bX7). On the other hand,
although personal privacy, 5 U.S.C.
? 552a(b), and confidential sources, 5 U.S.C.
? 552a(kX2), could be protected under the
Privacy Act even if section (jx2) exempting
authority were not exercised, a law enforce-
ment agency might be subject to other on-
erous and, in some instance, impractical re-
quirements. For instance, sections (eXl)-
(3), (ex4XG)-(I), (eX5) and (e)(8) of the Pri-
vacy Act would impose the following re-
quirements on law enforcement agencies:
(1) to maintain only such records abouti::an.
individual as necessary to accomplish a ptir-
pose required by statute or executive order,
(2) to get information directly from the
individual to the greatest extent practicable
when information may be adverse, (3) when
it seeks information from an individual, to
tell him its authority and whether disclo-
sure is mandatory or voluntary, the purpose
for which the information will be used, the
routine rues which may be made of it, and
the effects on him of not providing the
information, (4) to maintain records accu-
rately and fairly, and (5) to try to serve
notice on an individual when any record
about him is disclosed under compulsory
legal process.2' Considering the wider ac-
".and administrative rigors of the Priva-
cy Act, we have no difficulty understanding
Why,;. Congress allowed law enforcement
agencies to restrict individual access to
whole systems of records under the Privacy
et, while allowing the public, including the
material
d
un
o r van
.
21. Section (q) of the Privacy Act, 5 U.S.C.
4 552a(q). forbids an agency from relying on
any of the censoring devices of FOIA. There-
fore unless subsection (j)(2) authority is exer-
We agree with the district court that the
legislative history of the Privacy Act is not
without ambiguities. Contrary to the dis-
trict court, however, we feel that, on bal-
ance, the legislative history supports our
interpretation that section (jx2) of the Pri-
vacy Act ought not be considered a FOIA
withholding statute for first party reques-
ters.
In support of its decision that section
(j)(2) was a FOIA Exemption 3 statute, the
district court relied on the fact that
[A] provision [S. 3418, 93d Cong., 2d Sess.,
? 205(b) (1974) ] of an earlier bill passed
by the Senate [, which] clearly prohibited
use of the Privacy Act to withhold infor-
mation disclosable under other statutes,
including, presumably, FOIA ... [,] was
deleted from the final version of the bill,
suggesting that Congress did not intend
to prohibit use of the Privacy Act for
such purposes.-
Greentree, 515 F.Supp. at 1148.
We do not agree with the district court's
reading of the legislative history. Our
reading indicates that throughout its con-
sideration of the Privacy Act, the Senate
struggled to hold separate the Privacy Act
and FOIA, and further, that that effort was
ultimately successful.
The privacy bill that emerged from the
Senate Committee contained two provisions
that could be read to safeguard disclosure
rights under FOIA: (1) Section 205(b),
which remained in the final Senate. bill,
prohibited agencies from "withholding ...
any personal information which is required
to be disclosed by law or any regulation
thereunder," reprinted in Legislative Histo-
ry of the Privacy Act of 1974, S. 3418 (Public
Law 93-579), Source Book on Privacy 143
(1976) (hereinafter Source Book); and (2)
Section 202(c), subsequently eliminated by a
"perfecting amendment," Source Book at
765, which provided that certain require-
ments for disclosure did "not apply when
cised, a first party will have far greater access
to records about himself under the Privacy Act
than under FOIA.
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674 FEDERAL REPORTER, 2d SERIES
disclosure would be required or permitted
pursuant to ... [the] Freedom of Informa-
tion Act . . . . " Reprinted in Source Book
at 139. The Senate Report explained that
[Section 202(c) ] was included to meet the
objections of press and media representa-
tives that the statutory right of access to
public records and the right to disclosure
of government information might be de-
feated if such restrictions were to be
placed on the public and press. The Com-
mittee believed it would be unreasonable
and contrary to the spirit of the Freedom
of Information Act to attempt to keep an
accounting of the nature and purpose of
access and disclosures involving the press
and public or to impose guarantees of
security and confidentiality on the data
they acquire.
While the Committee intends in this
legislation to implement the guarantees
of individual privacy, it also intends to
make available to the press and public all
possible information concerning the oper-
ations of the Federal Government in or-
der to prevent secret data banks and un
authorized investigative programs on
Americans.
S.Rep.No.1183, 93d Cong., 2d Sess. 71
(1974), U.S.Code Cong. & Admin.News 1974,
p. 6916, 6985, reprinted in Source Book at
224. Accompanying section 202(c) was a
provision that prohibited agencies from re-
lying upon FOIA to withhold information
under the Privacy Act, S. 3418, 93d Cong.,
2d Sess., ? 205(a), reprinted in Source Book
at 143. That provision, which survived at
section 205a(q) of the final Act, was ex-
plained by the Senate Report as follows:
Subsection 205(a). Shows the Commit-
tee's intent that the exemptions provided
in the Freedom of -Information Act to the
required disclosure of Federal informa-
tion on certain subjects, and that permit-
ted for protection of personal privacy
may not be used as authority to deny an
individual personal information otherwise
available under this Act.
22. H.R.Rep.No.1416, 93d Cong., 2d Sess. 13
(1974), reprinted in Source Book at 306. The
Report explained that "[s]uch information
could be made available to the public only
S.Rep.No.1183, 93d Cong., 2d Sess. 71, 77
(1974), U.S.Code Cong. & Admin.News 1974,
p. 6991, reprinted in Source Book at 230:..
These Provisions in the Senate bill clearly
ind;cate to us that the Senate wanted to
insure that FOIA and the Privacy Act not
interfere with one another. On the one
hand, the Privacy Act's limits or conditions
on disclosure were not to impede access
under FOR, section 205(b), and on the oth-
er, FOIA's exemptions were not to limit the
availability of personal information accessi-
ble under the Privacy Act, section 205(a).
The privacy bill that emerged from the
House Committee, was tilted more toward
securing personal~.privacy than the Senate
bill. The House Mill, H.R. 16373, 93d Cong.,
2d Sess., ? 552a(b) (1974), stated that "[n]o
agency shall disclose any record which is
contained in a system of records by any
means of communication to any person, or
to another agency, except pursuant to a
written request by, or with the prior writ-
ten consent of the individual to whom the
record pertains .." Reprinted in Source
Book at 279. That provision, "identical to
the one now found in the Privacy Act, 5
U.S.C. 552a(b), (lid not exempt information
required to be disclosed under FOIA. How-
ever, the House Committee, recognizing the
impact this legislation would have on FOIA
by making "all individually identifiable in-
formation in Government files exempt from
public disclosure," r2 expressed its desire
that agencies continue to make some kinds
of individually-identifiable records available
to the public:
[The Committee] believes that the public
interest requires the disclosure of some
personal information. Examples of such
information are certain data about
government licensees, and the names, ti-
tles, salaries, and duty stations of most
Federal employees. The Committee
merely intends that agencies consider the
disclosure of this type of information on a
category-by-category basis and allow by
pursuant to rules published by agencies in the
Federal Register permitting the transfer of par-
ticular data to persons other than the individu-
als to whom they pertain."
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 I Cong., 2d Sess. 71, 77
mg. & Admin.News 1974,
in Source Book at 230.
the Senate bill clearly
t the Senate wanted to
and the Privacy Act not
another. On the one
Act's limits or conditions
a not to impede access
n 205(b), and on the oth-
ons were not to limit the
onal information accessi-
racy Act, section 205(a).
that emerged from the
was tilted more toward
privacy than the Senate
II, H.R. 16373, 93d Cong.,
(1974), stated that "[n]o
se any record which is
item of records by any
cation to any person, or
except pursuant to a
or with the prior writ-
individual to whom the
" Reprinted in Source
Lt. provision,.-identical . to
it in the Privacy Act, 5
not exempt information
osed under FOIA. How-
mmittee, recognizing the
ion would have on FOIA
lividually identifiable in-
nment files exempt from
22 expressed its desire
nue to make some kinds
tifiable records available
believes that the public
. the disclosure of some
rtion. Examples of such
a certain data about
isees, and the names, ti-
d duty stations of most
lees. The Committee
hat agencies consider the
type of information on a
gory basis and allow by
,ublished by agencies in the
'rmitting the transfer of par-
ons other than the individu-
)ertain."
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GREENTREE v. U. S. CUSTOMS SERVICE
Cite as 674 F.2d 74 (1982)
published rule only those disclosures
which would not violate the spirit of the
Freedom of Information Act by constitut-
ing "clearly unwarranted invasions of
personal privacy."
H.R.Rep.No.1416, 93d Cong., 2d Seas. 13
(1974), reprinted in Source Book at 306.
After negotiations between the House
and Senate, the House bill was adopted, but
with two significant amendments. One
amendment-now section 552a(bX2)-modi-
fied the House's restriction on disclosure so
that the Privacy Act would not interfere
with public access under FOIA. The other
amendment-now section 552a(q) -mir-
rored 552a(bX2) by prohibiting agencies
from relying upon FOIA to withhold any
record otherwise available under the Priva-
cy Act. See n.14 supra. The compromise
was explained to both Houses of Congress
in this way:
The compromise amendment would add
an additional condition of disclosure to
the House bill which prohibits disclosure
without written request of an individual
-unless: disclosure, of the record-would be
pursuant to Section 552 of the Freedom
of Information Act. This compromise is
designed to preserve the status quo as
interpreted by the courts regarding the
disclosure of personal information under
that section.
A related amendment taken from the
Senate bill would prohibit any agency
from relying upon any exemption con-
tained in Section 552 to withhold from an
individual any record which is otherwise
accessible to such individual under the
provisions of this section.
23. As evidence to the contrary, the government
cites statements made during the floor debates
indicating a desire to keep certain intelligence
and investigative files away from the individual
to whom the files pertain. Further, the govern-
ment relies upon the placement of section
(b)(2) among Privacy Act provisions concern-
ing public disclosure. Government's Brief at
20-23, 33. That evidence has been considered
above and here we need reiterate only that (1)
FOIA also limits access to national intelligence
and investigatory files, and (2) that while it
may be accurate to say that Congress was
83
Source Book at 861 (explained to Senate by
Senator Ervin), 989 (explained to House by
Representative Moorhead). The net effect
of the compromise was to reinstate the es-
sence of the Senate Committee's original
provisions, sections 202(c) and 205(a) and
(b), holding separate each act's exemptions
from disclosure. And we find no reason to
rule that first party requesters were intend-
ed to be an exception to that general Con-
gressional "hold separate" policy. In the
absence of persuasive evidence to the con-
trary, we conclude from this review that
Congress meant to continue business as usu-
al with respect to access under FOIA?'
Finally, we cannot accept the district
court's announcement that "[s]ince the Pri-
vacy Act was passed after the amendments
to (bX7) of FO14, any conflict between the
two sections must be resolved in favor of
the Privacy Act." Greentree, 515 F.Supp.
at 1148. The temporal relationship of the
FOIA Exemption 7 amendment 'and- the
Privacy Act suggests to us that no such
conflict exists. The FOIA Exemption 7
amendmegt which increased access to some
of the same law enforcement records that
might be-totally exemp"C1`rors"ncss"und'er-`-
Privacy Act section (j), was passed only' a
few weeks before the Privacy Act. See
1974 U.S.Code Cong. & Admin.News 6267,
6290-92. Indeed, Congress was consid-
ering the Privacy Act while it was pre-
paring to override President Ford's veto of
the 1974 FOIA amendments. See Source
Book at 887 (Remarks of Rep. Erlenborn:
"I think it is rather fitting that this [Priva-
cy] bill comes to the floor today on the same
day that we considered a motion to override
and have overridden the President's veto of
the Freedom of Information Act."). Presi-
unaware that first parties might invoke section
(b)(2) of the Privacy Act to secure FOIA access
to records unavailable to them under section
(j)(2) of the Privacy Act and that the right of
public access to personal information was the
preeminent concern of section (b)(2), it is ap-
parent also that Congress meant to "preserve
the status quo ... regarding the disclosure of
personal information" and refused to place the
Privacy Act in the path of "any person" seek-
ing access to information under FOIA. See p.
81 supra.
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84
is
dent Ford's veto was, for the most part, a
response to the increased accessibility of
national security and law enforcement doc-
uments allowed by these 1974 amendments
of Exemptions 1 and 7. 10 Weekly Comp.
of Pres. Doc. 1318 (1974). Therefore, we
are hard pressed to accept an interpretation
of the Privacy Act that in effect repeals,
for first party requesters, those amend-
ments only a few weeks after they were
enacted over a Presidential veto. Repeal by
implication is not generally favored; less so
in this instance.
C. Post-Passage Developmentsu
Shortly before the Privacy Act took ef-
fect, Deputy Assistant Attorney General
Mary C. Lawton of the Office of Legal
Counsel advised the Internal Revenue Ser-
vice that the Privacy Act was the exclusive
means available to an individual who
sought information about himself. Source
Book at 1177-78. The Office of Manage-
ment and Budget-which was required by
section 6 of the Privacy Act to develop
guidelines and regulations for -agencies im-
plementing the Act and to provide assist-
ance and oversight of the Act's implementa-
tion-circulated Lawton's opinion to federal
agencies. Id. at 1178. When it came to the
attention of Senator Edward Kennedy, the
Senator forwarded a strong letter of pro-
test to Attorney General Edward Levi.
Kennedy charged that the opinion was
"pernicious and destructive." His under-
standing was that
access under the Privacy Act is to be
complete and not subject to FOIA exemp-
tions, where the Privacy Act grants ac-
cess. But where the Privacy Act does not
grant access, the FOIA-and its exemp-
tions-apply.
Id. at 1180. Senator Kennedy attached to
his letter of protest a Congressional Re-
search Service Study for the Senate Sub-
committee on Administrative Practice and
Procedure on the relationship between
FOIA and the Privacy Act, which took issue
24. The post-passage legislative and administra-
tive material discussed below was significant
enough to cause Senator Kennedy to have it
with the position taken by Deputy Assistant
Attorney General Lawton. That study con-
cluded:
There is nothing in the terms of the
Privacy Act or its legislative history
which indicates that the Privacy Act is
the exclusive means by which an individ.
ual can gain access to his own records
contained in a system of records. Many
of the so-called "inconsistencies" listed in
the Justice Department's letter have been
reconciled with the FOIA in the OMB
guidelines issued pursuant to the Privacy
Act. Furthermore, they do not seem to
constitute the clear repugnancies which
are necessary before a court will hold
that one statute has implicitly repealed or
super ceded another.
The primary purpose of the Privacy
Act is the protection of individual privacy
by controlling the collection, manage
ment, and dissemination of individually
identifiable records. Access to such rec-
ords by the individual is one method by
which cont~ol'1s achieved and is a neces-
.-sar-y-adjunct to the accurate maintenance
of records. It flies in the face of the
whole legislative effort in this area to
construe the Privacy Act as a backhanded
method to limit individual access to rec-
ords while at the same time preserving
potentially greater access rights to third
parties.
Id. at 1187.
Until this appeal, the dispute had re-
solved itself into a mere matter of form.
Deputy Attorney General Harold R. Tyler,
Jr., replying to Senator Kennedy for the
Attorney General, admitted that he himself
and others in the Department of Justice
had "substantially similar" "concern[s]"
about the Lawton opinion and so had draft-
ed a Privacy Act regulation, see id. at 1187-
88 (draft form), which, as slightly revised,
now provides:
Any request by an individual for infor-
mation pertaining to 'himself shall be
processed solely pursuant to this Subpart
reprinted on the pages of the Congressional
Record. See Source Book at 1173-88.
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 i by Deputy Assistant
ton. That study con-
in the terms of the
i legislative history
I. the Privacy Act is
by which an individ-
to his own records
in of records. Many
)nsistencies" listed in
znt's letter have been
FOIA in the OMB
suant to the Privacy
they do not seem to
repugnancies which
e a court will hold
implicitly repealed or
ose of the Privacy
of individual privacy
collection, manage-
ition of individually
Access to such rec-
al is one method by
ieved and is a neces-
.ccurate maintenance
..in_ the face of the
Act as a backhanded
vidual access to rec-
ime time preserving
.ccess rights to third
he dispute had re-
ere matter of form.
?ral Harold R. Tyler,
or Kennedy for the
itted that he himself
partment of Justice
milar" "concern(s)"
ion and so had draft-
ttion, see id. at 1187-
as slightly revised,
individual for infor-
:o himself shall be
uant to this Subpart
of the Congressional
ok at 1173-88.
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GREENTREE v. U. S. CUSTOMS SERVICE
Cite as 674 F.2d 74 (1982)
Lions could- not :be circumvented through
D. To the extent that the individual
seeks access to records from systems of
records which have been exempted from
the provisions of the Privacy Act, the
individual shall receive, in addition to ac-
cess to those records he is entitled to
receive under the Privacy Act and as a
matter of discretion as set forth in para-
graph (a) of this section, access to all
records within the scope of his request to
which he would have been entitled under
the Freedom of Information Act, 5 U.S.C.
552, but for the enactment of the Privacy
Act and the exemption of the pertinent
systems of records pursuant thereto.
28 C.F.R. ? 16.57(b). That regulation was,
however, accompanied by a statement
claiming that release of records beyond
those mandated by the Privacy Act was at
the sole discretion of the Associate Attor-
ney General.u The government now seeks
to recapture its purported authority. The
Lawton letter and the "discretionary" na-
ture of the regulation are cited as "contem-
poraneous construction by the Justice De-
partment ... that the Privacy Act exemp-
25. 28 C.F.R. ? 16.57(a):
Issuance of'this section and actions con-
sidered or taken pursuant hereto are not to
be deemed a waiver of the Government's
position that the materials in question are
subject to all of the exemptions contained in
the Privacy Act. By providing for exemp-
tions in the Act. Congress conferred upon
each agency the option, at the discretion of
the agency, to grant or deny access to ex-
empt materials unless prohibited from doing
so by any other provision of law. Releases
of records under this section, beyond those
mandated by the Privacy Act, are at the sole
discretion of the Associate Attorney General
and of those persons to whom authority here-
under may be delegated. Authority to effect
such discretionary releases of records and to
deny requests for those records as an initial
matter is hereby delegated to the appropriate
system managers as per the Notices of Sys-
tems of Records published in 40 Federal Reg-
ister 167, pages 38703-38801 (August 27,
1975).
26. Office of Consumers' Counsel v. Federal En-
ergy Regulatory Comm'n, 655 F.2d 1132, 1133,
1141 (D.C.Cir.1980); Public Service Comm'n of
New York v. Federal Energy Regulatory
Comm'n, 642 F.2d 1335, 1342 (D.C.Cir.1980),
cert. denied, -- U.S. ---, 102 S.Ct. 360, 70
L.Ed.2d 189 (1981).
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85
use of the FOIA." Government's Brief at
40.
Although agency interpretations are enti-
tled to judicial respect, courts need not be
oblivious to the context in which those in-
terpretations are made?' In the case of
major parts of the Privacy Act, as well as
the FOIA amendments, the executive
branch had opposed passage. - See, e.g.,
Source Book at 772-75. The post-passage
events reviewed above may illustrate exec-
utive department efforts to moderate the
impact of an unwelcome enactment. Of
course, we are not unaware that the post-
passage views of members of Congress and
Congressional staffs may also be distorted
by conflicting interests. See Zipes v. Trans
World Airlines, Inc., - U.S. ,
102 S.Ct. 1127, 1132, 7t L.Ed.2d 234 (1982).
We are, therefore, wary of placing too
much reliance on the Lawton-Kennedy-Tyl-
er dialogue. More impressive to us is the--
fact that the predominant government poli-
cy since initial implementation until this
appeal n has been to allow an individual to
seek access to nfbrmation about himself
through both the Privacy Act and. FOIA..
27. The Government's Brief to the district court,
J.A. 29, 35. supported the position that the
Privacy Act was not an Exemption 3 statute,
citing "the Government's uniform and long-
standing practice" to the contrary. It also
argued, J.A. 96, that:
It would be anomalous indeed for Congress
to override a presidential veto, which was in
part based on Congress' narrowing of exemp-
tion 7, only to reinstate forty days later (via
the Privacy Act) the discretionary power to
deny total access to investigatory material.
There is no indication whatsoever in the Leg-
islative history of the Privacy Act to indicate
that Congress intended such an abrupt rever-
sal of its recent narrowing of exemption 7.
28. Pursuant to Rule 28(j) of the Fed.R.App.
Proc., the government has informed us that the
Office of Management and Budget ("OMB") is
currently revising its guidelines to state that
the Privacy Act should be considered a FOIA
Exemption 3 statute. At present, OMB's policy
is consistent with the policy of 28 C.F.R.
? 16.57(b), i.e., an individual's access to materi-
al about himself may be by way of the Privacy
Act or FOIA:
In some instances under the Privacy Act an
agency may (1) exempt a system of records
(or a portion thereof) from access by individ-
uals in accordance with the general or specif-
ic exemptions (subsection (j) or (k)); or (2)
 i
86
?
674 FEDERAL REPORTER, 2d SERIES
D. Case Law
Although decisions in two other circuits,
on which the district court relied, have re-
deny a request for access to records compiled
in reasonable anticipation of a civil action or
proceeding or archival records (subsection
(d)(5) or (1)). In a few instances the exemp-
tion from disclosure under the Privacy Act
may be interpreted to be broader than the
Freedom of Information Act (5 U.S.C. 552).
In such instances the Privacy Act should not
be used to deny access to information about
an individual which would otherwise have
been required to be disclosed to that individ-
ual under the Freedom of Information Act.
It is our view that agencies should treat
requests by individuals for information per-
taining to themselves which specify either
the FOIA or the Privacy Act (but not both)
under the procedures established pursuant to
the Act specified in the request. When the
request specifies, and may be processed un-
der, both the FOIA and the Privacy Act, or
specifies neither Act, Privacy Act procedures
should be employed. The individual should
be advised, however, that the agency has
elected to use Privacy Act procedures, of the
existence and the general effect of the Free-
dom of Information Act, and of the differ-
ences, if any, between the agency's proce-
dures under the two Acts (e.g., fees, .time`-
limits, access and appeals).
The net effect of this approach should be to
assure the individuals do not, as a conse-
quence of the Privacy Act, have less access
to information pertaining to themselves than
they had prior to its enactment.
40 Fed.Reg. 56742-43.
Other agencies and individuals prominently
involved in the passage and implementation of
the Privacy Act and FOIA have expressed a
similar point of view-that the Privacy Act
ought not operate as a FOIA Exemption 3 stat-
ute. Reporting to the House of Representa-
tives on a Library of Congress study on the
administration of FOIA, Representative Bella
Abzug informed her colleagues that unfortu-
nately "seven executive branch entities ...
[have] 'cited the Privacy Act 146 times when
invoking the FOI Act exemption pertaining to
statutory prohibitions.' " "Yet," said Abzug,
"the Privacy Act specifically states that it was
not intended to restrict access to records avail-
able under the Freedom of Information Act (5
U.S.C. 552a(b)(2))." 122 Cong.Rec. 26447,
26448 (1976). The Report submitted to the
House byAbzug declared that Exemption 3 use
of the Privacy Act was improper. Id. at 26450.
(The Administration of the Freedom of In for-'
mation Act: An Analysis of the Executive
Ranch Annual Reports for 1975). It noted
optimistically, however, that one of the seven
entities-the Department of Labor-which had
invoked the Privacy Act as an Exemption 3
solved questions similar to this one in a
different manner, neither has explicated a
convincing rationale. The Seventh Circuit
statute, had recently recognized that the prac-
tice was "improper." Id. Further, the Privacy
Protection Study Commission, established by
section 5 of the Privacy Act to study the func-
tioning of the Act, indicated. a similar under-
standing of the relationship between the Priva-
cy Act and FOIA:
An individual seeking access to an investiga-
tory file, for example, may be able to obtain
much broader access if he requests it under
the FOIA, because the corresponding PA ex-
emption applies to entire systems of records
rather than to records or portions of the
records they contain.
Report of the Privacy Protection Study Com-
mission, Privacy Act of 1974: An Assessment,
App. 4 at 37 (19 7,7). Also, the Staff of the
Senate Subcommi ee on Administrative Prac-
tice and Procedure reported on violations of
FOIA, including "improper reliance on the Pri-
vacy Act as statutory authority to withhold
information under FOIA exemption 3." -Staff
of Senate Subcommittee on Administrative
Practice and Procedure, Committee on the Ju-
diciary, 95th Cong., 2d Sess., Report on Over-
sight Hearings on Agency Implementation of
the 1974 Amendments to the Freedom of Infor-
-.mation Act, at 123 (Comm. Print 1980). The
Staff noted that "[tihe Privacy Act ... was
never intended to restrict access to reports un-
der FOIA." Id. at n.76. In support, the Annual
Report,- 1976 of the Congressional Research
Service was cited:
An equally disturbing phenomenon, which
also occurred in 1975 and 1976, is agency
reliance upon the Privacy Act to withhold
information in conjunction with the interven-
ing statute exemption of the Freedom of In-
formation law. It appears that the Justice
Department, Federal Power Commission. Na-
tional Aeronautics and Space Administration,
and the National Science Foundation en-
gaged in this practice in a few isolated in-
stances. It should be quite apparent by this
time that the Privacy Act does not constitute
authority to withhold any records sought un-
der the provisions of the FOI statute. The
Freedom of Information Act recognizes the
unwarranted invasion of personal privacy as
a basis (5 U.S.C. 552(b)(6)) for exempting
information from disclosure, but does not
rely upon the language or authority of the
Privacy Act."
Id., citing Annual Report, 1976 at 25. Thus, the
prevailing understanding among those inti-
mately involved in the implementation of the
Privacy Act-exclusive of the executive
branch-was that the Privacy Act and FOIA
were independent bases for access by individu-
als to their own records.
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 nilar to this one in a
either has explicated a
The Seventh Circuit
recognized that the prac-
Id. Further, the Privacy
'mmission, established by
icy Act to study the func-
ndicated a similar under-
onship between the Priva-
ing access to an investiga-
Me, may be able to obtain
!ss if he requests it under
the corresponding PA ex-
entire systems of records
cords or portions of the
in.
w Protection Study Com-
of 1974: An Assessment,
Also, the Staff of the
e on Administrative Prac-
reported on violations of
)roper reliance on the Pri-
,ry authority to withhold
OIA exemption 3." Staff
nittee on Administrative
ire, Committee on the Ju-
2d Sess.. Report on Over-
igency Implementation of
!s to the Freedom of Infor-
(Comm. Print 1980). The
]he Privacy Act ... was
arict access' to reports un-
'6. In support, the Annual
Congressional Research
rbing phenomenon, which
1975 and 1976, is agency
Privacy Act to withhold
function with the interven-
.ion of the Freedom of In-
appears that the Justice
al Power Commission, Na-
and Space Administration,
Science Foundation en-
tice in a few isolated in-
be quite apparent by this
cy Act does not constitute
Ad any records sought un-
of the FOE statute. The
nation Act recognizes the
ion of personal privacy as
552(b)(6)) for exempting
disclosure, but does not
guage or authority of the
port, 1976 at 25. Thus, the
iding among those inti-
.he implementation of the
isive of the executive
ie Privacy Act and FOIA
ses for access by individu-
)rds.
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GREENTREE v. U. S. CUSTOMS SERVICE 87
Cite as 874 F.2d 74 (1982)
in Terkel v. Kelly, 599 F.2d 214 (7th Cir.
1979), cert. denied, 444 U.S. 1013, 100 S.Ct.
662, 62 L.Ed.2d 642 (1980), interpreted sec-
tion (kX2) of the Privacy Act to exempt
information from required disclosure under
FOIA, concluding:
Although the Freedom of Information
Act does not contain a comparable ex-
emption, we agree with the lower court
that the two statutes must be read to-
gether, and that the Freedom of Informa-
tion Act cannot compel the disclosure of
information that the Privacy Act clearly
contemplates to be exempt.
Id. at 216. Unfortunately, we do not have
the benefit of the court's statutory analysis,
review of the legislative history or any oth-
er aspect of its reasoning. Had such rea-
sons been disclosed, we would certainly
have paid them close attention2?
29. Professor Davis has criticized the decision
for failing to take careful note of the statutory
wording:
The court quoted (k)(5), but in doing so it
deleted the words that would have prevented
it from making its error. The crucial words
the court deleted are here italicized: "The
head of any agency may promulgate rules
... to exempt any system of records within
the agency from (specified) subsections ...
of this section." The -exemption is from
parts of a section of the PA, and the court
assumed it to be from a disclosure require-
ment of the FOIA.
1 K. Davis, Administrative Law Treatise ? 5:43,
p. 53 (1978 ed. Supp. 1980). On the more
general question whether the Privacy Act is an
Exemption 3 statute, legal scholars uniformly
answer no. See, e.g., Guidebook to the Free-
dom of Information and Privacy Acts 21 (P.
Bouchard and J: Franklin, eds. 1980) ("An indi-
vidual may utilize either the Privacy Act or
FOIA or both-to'-seek access to-information
about himself in agency records, and is entitled
to the cumulative total of access rights under
the two Acts."); 2 J. O'Reilly, Federal Informa-
tion Disclosure, Procedure, Forms and the Law
? 20.13 [20-30-31] (1981 ed.) (after rehearsing
the history of the Kennedy-Lawton debate,
O'Reilly observed:
Kennedy won the debate, but Justice con-
ceded the issue in its discretion, in a manner
which Kennedy said "bordered on the irre-
sponsible".21 The precedential effect of a
formal reversal was lacking, but Justice
amended its regulations to provide that any
individual's request for records would be
dealt with under whichever statute provided
the greater access, if the request was made
by an individual for his own files 22 The
FOIA provisions %yhich give greater access
rights than the corresponding provisions of
the Privacy Act would be triggered automati-
cally whenever a request could fall within
both of the statutes.
A novel construction of the Privacy Act
FOIA interrelationship was suggested in
1979. The Government Printing Office de-
nied access to the Code of Federal Regula-
tions mailing list on the grounds that the
Privacy Act was a (b)(3) specific exemption
to the Freedom of Information Act. The
history of the Privacy Act and of the 1976
FOIA amendments is silent on this claim, but
it appears to be wholly inconsistent with the
purposes of both statutes. The Privacy Act
was not intended to be an excuse for agency
withholding under the FOIA. and the GPO
approach remains to be tested in the courts,
where it may welllose.
The case law since enactment of the Priva-
cy Act has not added much to the substance
of the intermeshing of the two statutes' oper-.
ations. Several courts have addressed the
interaction, in the context of discovery and
similar motions, and have found that the Pri-
vacy Act adds nothing to the rights of litigat-
ing parties which the FOIA did not already
provide.23 - ?
A startling difference of opinion between
the early commentators and the staff of "the"
Privacy Protection Study Commission devel-
oped when that Commission's final report
found that the two Acts "mesh well", and
that "there are no statutory conflicts".24 The
PPSC rejected the legal literature's criticism
as "overly simplistic" and "an erroneous for-
mulation of the relationship between the two
statutes".23 Time will tell which view was
"overiy simplistic", though few cases have
faced the issues. The Commission Report
concluded that some practical problems
would arise but that an agency merely lost
the discretion to disclose (b)(6)-exempt infor-
mation once it had determined that it was
exempt.26 The simplicity in the Commission
staff's reading of the conflict or nonconflict
lies in the recognition that few if any agency
managers would knowingly disclose personal
privacy types of data, such as medical rec-
ords, which would be a clearly unwarranted
invasion of the file subject's recognized
rights if disclosed! Case-by-case judgments
will have to be made, and the Privacy Act
will probably be seen by legal scholars of the
future as an impediment to the rational de-
velopment of (b)(6) policies and cases.
21 (121 Cong Rec S) 18146 [(daily ed. Oct.
9, 1975).]
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 674 FEDERAL REPORTER, 2d SERIES
The Fifth Circuit in Painter v. Federal
Bureau of Investigation, 615 F.2d 689, 691
& n.3 (5th Cir. 1980), relied heavily upon
Terkel to hold section 552a(kX5) a FOIA
Exemption 3 statute. In so holding, the
court reversed a district court decision con-
taining a more detailed review of the legis-
lative history of the Privacy. Act.JO
We have been persuaded to break stride
with the Fifth and Seventh Circuits by the
language and legislative history of the Pri-
vacy Act. We have sought a coherent stat-
utory relationship between the Privacy Act
and FOIA that reflects a steady intent by
Congress throughout the short period be-
22 See 28 CFR ? 16.57[.]
223 Letter of GPO Order Div. Chief L Reed
to author (June 15, 1979)[.]
zi Sears Roebuck & Co. v. GSA, 553 F.2d
1378 (D C Cir.1977); U S v Brown 562 F.2d
1144 (9th Cir. 1977); U S v Murdock 548
F2d 599 (5th Cir. 1977)[.]
24 Privacy Comm Report at 520[.]
25 Id.[.]
26 Id., and it conceded' that other private
information would be nonexempt[.]
O'Reilly also took note of the district court
opinion in this case and stated:
An extensive treatment of the issue of spe-
cific exemption from the Freedom of Infor-
mation Act for Privacy Act materials appears
in Greentree v. U. S. Customs Service, 515
F.Supp. I 145 (D C DC 1981). That court over-
ruled both the agency and the requester
and specifically held that the Privacy Act is
an exemption (3) statute. (5 U.S.C.
? 552(b)(3).) In doing so, it overruled ad-
ministrative opinions and even this text to
reach its conclusion that (b)(3) applies. The
appellate outcome of this case will be very
interesting.);
see also, Hulett, Privacy and the Freedom of
Information Act, 27 Adm.L.Rev. 275, 288
(1975); Project, Government Information and
the Rights of Citizens, 73 Mich.L.Rev. 971, 1337
(1975); Note. The Privacy Act of 1974: An
Overview, 1976 Duke L.J. 301, 312; Note,
FOIA-Privacy Act Interface, 8 Loyola Univ. L.J.
568, 586-93 (1977).
Far from indicating that the Privacy Act was
der the FOIA, the legislative history of the
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tween enactment of the Privacy Act and
the 1974 FOIA amendments, That intent
was to open access to first party requesters
under the Privacy Act without closing ex-
isting avenues of access under contempora-
neously enacted and liberalizing amend-
ments to FOIA. In reality, however, our
departure from the position of other circuits
may turn out to be of more academic inter-
est than practical consequence. Upon re-
mand, it may well be found that the materi-
al sought by Greentree is unavailable to
him (or anyone else) under FOIA's Exemp-
tion 7 as well as the Privacy Act. Whether
this dispute deserves such an anticlimactical
ending, we leave the district court.
preserve the status quo as interpreted by the
Analysis of House and Senate Compromise
Amendments to the Federal Privacy Act, 120
Cong.Rec. 12.243, 12,244 (daily ed. Dec. 18,
1974); id. at 21,815, 21,817 (daily ed. Dec. 17,
1974). It11us appears that the Privacy Act
provides rights to the individual with respect
by the public to such records ends and was
not intended to restrict his rights as a mem-
ber of that public. Buttressing this conclu-
sion is 5 U.S.C. ? 552a(b)(2), which provides
that, although many records about an indi-
vidual cannot be disclosed under the Privacy
Act without the individual's consent, if dis-
closure is called for under the FOIA, no con-
sent need be obtained. See Privacy Act Im-
plementation: Guidelines and Responsibil-
ities, 40 Fed Reg. 28,948, 28,954 (July 9,
1975). This provision, like the legislative his-
tory, indicates that the Privacy Act is not to
be used to block disclosures required by the
The court therefore concludes the material
covered by the Privacy Act exemptions do
not, without more, fall within exemption 3 of
the Freedom of Information Act, 5 U.S.C.
? 552(b)(3), which protects documents "spe-
cifically exempted from disclosure by statute
...... While it is true that there is some
tension between the two statutes, and that
the literal wording of exemption 3 can be
read to include the Privacy Act, the court
cannot ignore the legislative history and the
general structure of these laws.
Reported at 615 F.2d at 689--90 n.2.
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 f the Privacy Act and
endments. That intent
to first party requesters
Act without closing ex-
cess under contempora-
nd liberalizing amend-
n reality, however, our
position of other circuits
of more academic inter-
mnsequence. Upon re-
e found that the materi-
ntree is unavailable to
under FOIA's Exemp-
Privacy Act. Whether
s such an anticlimactical
the district court.
quo as interpreted by the
:he disclosure of personal
r that section (FOIA)."
and Senate Compromise
e Federal Privacy Act, 120
12,244 (daily ed. Dec. 18,
5, 21,817 (daily ed. Dec. 17,
)ears that the Privacy Act
the individual with respect
)nd the point where access
uch records.ends and was
strict his rights as a mem-
. Buttressing this conclu-
552a(b)(2), which provides
ny records about an indi
lisclosed under the Privacy
ndividual's consent, if dis-
)r under the FOIA, no con-
fined. See Privacy Act Im-
tidelines and Responsibil-
;. 28,948. 28.954 (July 9,
:ion, like the legislative his-
s the Privacy Act is not to
lisclosures required by the
!dom of Information Stat-
'ore concludes the material
rivacy Act exemptions do
fall within exemption 3 of
nformation Act, 5 U.S.C.
protects documents "spe-
from disclosure by statute
s true that there is some
.he two statutes, and that
g of exemption 3 can be
he Privacy Act, the court
legislative history and the
of these laws.
1 at 689-90 n.2.
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GREENTREE v. U. S. CUSTOMS SERVICE
Cite as 674 F.2d 74 (1982)
89
CONCLUSION question under other applicable sections of
ld FOIA.
th
f
i
h
F
e
orego
ng reasons, we
or
o
[2]
that section 02) of the Privacy Act is not
a FOIA Exemption 3 statute. Therefore,
the decision of the district court is reversed
and the case is remanded so that the court
may consider access to the documents in
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 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
;islative his-
H.R. 16373,
vas enacted,
ch suggests
Act section
,f the Free.
king it'the
)arty infor-
.he Privacy
of Justice
d complete
1 intention.
'i3 section"
.nd (k) - be
.reedom -of
y first par-
ory of the
ercome the
:n pl ication.
of Justice
:nth respect
administer-
Green tree
ant's inter-
vacillated.
35. More-
,ut the only
under 'the
.the Priva-
:ment and
,ponsibility
regulations
iy govern-
374, Pub.L.
?09. Sipce
led: -'
e Privacy
t a system
.-eof) from
lance with
Lions (sub-
: a request
:n reasona-
on or pro-
,subsection
dances the
er the Pri-
be broad-
nation Act'
ances the
,d to deny
access to information about an
?
UNITED STATES DEPT. OF JUSTICE
Cite as 717 F.2d 794 (1983)
which would otherwise have been re-
quired to be disclosed to that individual
under the Freedom of Information Act.
It is our view that agencies should
treat requests by individuals for informa-
tion pertaining to themselves which speci-
fy either the FOIA or the Privacy Act
(but not both) under the procedures es-
tablished pursuant to the Act specified in
the request. When the request specifies,
and may be processed under, both the
FOIA and the Privacy Act, or specifies
neither Act, Privacy Act procedures
should be employed. The individual
should be advised, however, that the
agency has elected to use Privacy Act
procedures, of the existence and the gen-
eral effect of the Freedom of Informa-
tion Act, and of the differences, if any,
between the agency's procedures under
the two Acts (e.g., fees, time limits, ac-
cess and appeals).
The net effect of this approach should
be to assure the individuals do not, as a
consequence of the Privacy Act, have less
access to information pertaining to them-
selves than that they had prior to its
enactment.
40 Fed.Reg. 56742--43 (1975). Thus the
contemporaneous interpretation of the Pri-
vacy Act by an agency charged by Congress
with specific responsibility for the develop-
ment of guidelines and regulations for the
Act's implementation is entirely consistent
with the interpretation which the Justice
Department formerly embraced. According
to the Justice Department (see Brief at 35),
the Office of Management and Budget is
now considering a revision of those guide-
lines. That does not alter the value of the
extant guidelines as a reflection.of the con-
temporaneous understanding of the agency
as to the intention of the ninety-third Con-
gress. See Green tree, supra, 674 F.2d 74, 85
& n. 28.
We conclude, therefore, that the trial
court erred in holding that the Privacy Act
was the sole means of access for individual
records and that the systems of records
717 F.2d-19
799
exemption of 5 U.S.C. ? 552a(j)(2) (1982)
applied to an individual Freedom of Infor.
mation Act request. Thus the Vaughn in-
dex should have been disclosed to the re-
questers, and the procedures mandated by
Ferri v. Bell, 645 F.2d 1213, 1220 (3d Cir.
1981), followed.
IV.
The summary judgment in favor of the
Department of Justice will be reversed, and
the case remanded for further proceedings
consistent with this opinion.
PROVENZANO, Anthony, Appellant,
UNITED STATES DEPARTMENT OF
JUSTICE, William French Smith, Attor-
ney General of the United States, and
William H. Webster, Director of the
Federal Bureau of Investigation.
United States Court of Appeals,
Third Circuit.
Argued Aug. 4, 1983.
Decided Sept. 15, 1983.
On Appeal from the United States Dis-
trict Court for the District of New Jersey-
Newark; Clarkson S. Fisher, Judge.
Harvey Weissbard, West Orange, N.J.,
for appellant.
J. Paul McGrath, Asst. Atty. Gen., Wash-
ington, D.C., W. Hunt Dumont, U.S. Atty.,
Newark, N.J., Leonard Schaitman, Douglas
Letter (argued), Attys., Civ. Div., Dept. of
Justice, Washington, D.C., for appellees.
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717 FEDERAI. REPORTER, 2d SERIES
Before GIBBONS and HUNTER, Circuit
Judges, and MANSMANN,` District Judge.
OPINION OF THE COURT
PER CURIAM:
In April of 1978 Anthony Provenzano
submitted a Freedom of Information Act
request to the Department of Justice for all
documents indexed under or containing his
name. In July of 1980 he appealed to the
Attorney General from the failure of the
Criminal Division to respond to his request,
and was informed that since it would take
25 months before the request could be proc-
essed, he could regard his appeal as denied,
and bring action in an appropriate federal
court.
In December 1981 Provenzano filed the
instant action. The government moved for
summary judgment, filing in support there-
of affidavits of Douglas S. Wood and James
C. Felix, which established that the request-
ed records were in a system of records
exempted by agency action pursuant to 5
U.S.C. ? 552a(j)(2) (1982). The trial court,
relying on Painter v. Federal Bureau of
Investigation, 615 F.2d 689 (5th_ Cir.1980),
and rejecting the authority of Green tree v.
United States Customs Service, 674 F.2d 74
(D.C.Cir.1982), granted summary judgment,
and Provenzano appealed.
In Porter v. Department of Justice, 717
F.2d 787 (3d Cir.1983), filed simultaneously
herewith, we hold that the Privacy Act did
not pro tan to repeal the Freedom of In-
formation Act insofar as the latter tiro-
vides access for requesters to information
about themselves. That holding requires
that the summary judgment in this case be
reversed.
The judgment appealed from will be re-
versed and the case remanded for further
proceedings.
Opinion on rehearing, 722 F.2d 36.
UNITED STATES of America, Appellee, ..;`..::
at
..
V.
Appeal of Sarah F. MORROW.
Nos. 823477, 82-1478.
United States Court of Appeals,
. Third Circuit.
Argued July 21, 1983.
Decided Sept. 16, 1983.
As Amended Sept 23, 1983.
Certiorari Denied Jan. 16, 1983.
See J04 S.CL 975.
ed States District Court for the Middle 'Dis
trict of Pennsylvania, Richard P. Conaboy,.'
J., of one count of conspiracy and 12 sub-"
stantive counts of mail fraud in connection
with the ir,LVtional destruction of an adult
bookstore and thus subsequent efforts to
collect on fire insurance policies covering
the property, and they appealed. The
Court of Appeals, Teitelbaum, Chief 'Dis-
trict Judge, sitting by designation, held .
that: (1) combination of kerosene fumes
and gasoline which was created during iin.
arson constituted an "incendiary - device"
and thus an "explosive" under federal law,
and (2) where agreement proven was.*to
destroy a building and to collect, by use 'of
the mails, insurance proceeds payable only =
for accidental destruction of the building....
count charging conspiracy was not duplici {
tous on theory that conspiracy to commit
mail fraud and conspiracy to use an explo-
sive to commit mail fraud were separate:?
and distinct conspiracies.
Affirmed.
1. Explosives 4-4
Combination of kerosene fumes .?and.
gasoline-which was created during an arso :<
Hon. Carol Los Mansmann, United States Dis-
trict Judge for the Western District of Pennsyl-
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PAINTER v. FEDERAL BUREAU OF INVESTIGATION
Cite as 8I S F.2d 889 (1980)
Dassinger v. South Central Bell Telephone
Co. 505 F.2d 672, 674 (5th Cir. 1974); 10 C.
Wright & A. Miller, Federal Practice &
procedure ? 2713 (1973). On remand, the
district court should expunge its initial
judgment and enter an order dismissing the
case for want of subject matter jurisdiction.
S It211_WBERSY1114
FEDERAL BUREAU OF INVESTIGA-
TION et al., Defendants-Appellants.
No. 79-2570
Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
Appeal was taken from summary judg-
ment entered by the United States District
;: Court for the Northern District of Georgia,
Newell Edenfield, District Judge, in action
;i' in ,which former special' agent of Federal
-.Bureau of Investigation sought, pursuant to
LPreedom of Information Act, to obtain ac-
`to records pertaining to his dismissal.
.Tbs. Court of Appeals, Randall, Circuit
:`'dodge, held that material exempted from
d loeure under provisions of Privacy Act
~Ite:matters "specifically exempted from
oeure by statute."
?. 49 ed.RApp.P. 34(a); 5th Cir. R. 18.
15.U-S.C. ? 552(b)(3) provides that the disclo-
James Joseph PAINTER,
Plaintiff-Appellee,
Provisions of the Freedom of Information
13, U.S.C. ? 552 (1976) do not apply to
Hers that are "specifically exempted from
sure by statute (other than ? 552b of this
I, provided that such statute (A) requires
o
ublic in
......I p
-- ..
a manner as to leave no discretion on the
689
Reversed in part and remanded with
instructions.
Records Q-55
Material exempted from disclosure un-
der provisions of Privacy Act were matters
"specifically exempted from disclosure by
statute," for purposes of Freedom of Infor-
mation Act, 5 U.S.G.A. ?? 552(bX3), 552a.
Leonard Schaitman, Atty., Mark N. Mut-
terperl, Howard S. Scher, U. S. Dept. of
Justice, Washington, D. C., for defendants-
appellants.
Larry W. Thomason, Decatur, Ga., for
plaintiff-appellee.
Appeal from the United States District
Court for the Northern District of Georgia.
Before AINSWORTH, FAY and RAN-
DALL, Circuit Judges.
RANDALL, Circuit Judge:
This appeal raises the narrow question
whether the Privacy Act, 5 U.S.C. ? 552a, is
a "statute" within the meaning of one pro-
vision of the Freedom of Information Act
(FOIA), 5 U.S.C. ? 552(bX3). That subsec-
tion of the FOIA provides that the FOIA
does not apply to matters that are "specifi-
cally exempted from disclosure by statute."
as long as the exempting statute meets
certain basic requirements.' The district
court below determined that the Privacy
Act was not such a statute, and accordingly
ordered the Federal Bureau of Investiga-
tion to disclose the material Painter sought
under the FOIA as to which the Govern-
ment claimed a Privacy Act exemption ap-
plie .2
issue, or (B) establishes particular criteria for
withholding or refers to particular types of
matter to be withheld . . ..'
2. In its unreported decision in this case, the
district court said:
Far from indicating that the Privacy Act was
intended to shield materials from public dis-
closure which were otherwise accessib:e un-
der the FOIA, the legislative history of the
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0
0
I
a
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615 FEDERAL REPORTER, 2d SERIES
Appellee, James Painter, was a special
agent of the FBI dismissed on October 18,
1977 for several reasons not relevant on this
appeal. He invoked the provisions of the
FOIA to obtain access to records pertaining
to his dismissal. The FBI released a num-
ber of documents to him, but asserted that
portions of those documents and certain
other documents were exempt from disclo-
sure. The Government maintained that
some of the withheld information was ex-
empt from disclosure under exemption
(bX6) of the FOIA, 5 U.S.C. ? 552(b)(6), and
that other information was exempt under
exemption (kX5) of the Privacy Act, 5
U.S.C. ? 552a(kX5). The district court
granted summary judgment in favor of the
Government with regard to all documents
and portions of documents as to which the
FOIA exemption had been asserted, and
granted summary judgment for Painter
with regard to all documents and portions
of documents as to which the Privacy Act
exemption had been asserted. Reviewing
the legislative history of the Privacy Act,
which was enacted later than the FOIA, the
district court correctly concluded that the
Privacy Act was intended to provide "rights
to the individual with respect to his records
beyond the point where access by the public
to such records ends and was not intended
to restrict his rights as a member of that
public." Reasoning that it would therefore
former states that the statute "is designed to
preserve the status quo as interpreted by the
courts regarding the disclosure of personal
information under that section (FOIA)."
Analysis of House and Senate Compromise
Amendments to the Federal Privacy Act. 120
Cong.Rec. 12,243, 12,244 (daily ed. Dec. 18.
1974); id. at 21,815, 21,817 (daily ed. Dec. 17,
1974). It thus appears that the Privacy Act
provides rights to the individual with respect
to his records beyond the point where access
by the public to such records ends and was
not intended to restrict his rights as a mem-
ber of that public. Buttressing this conclu-
sion is 5 U.S.C. ? 552a(b)(2), which provides
that, although many records about an indi-
vidual cannot be disclosed under the Privacy
Act without the individual's consent, if dis-
closure is called for under the FOIA, no con-
sent need be obtained. See Privacy Act Im-
plementation: Guidelines and Responsibil-
ities, 40 Fed.Reg. 28,948. 28,954 (July 9.
1975). This provision, like the legislative his-
be anomalous to permit the Government to'.,
rely on the Privacy Act to block a disclosure; s :=
that would otherwise be required by the"",
FOIA, the district court finally concludedf
that the Privacy Act was not the kind obi
statute referred to in 5 U.S.C. ? 552(bx3);
With that conclusion we disagree. Sub- -,,-
sequent to enactment of the FOIA, Con_
gress passed two other ' open records acts
that are relevant here. The Privacy Act,
enacted in 1974, is one. The other is the
Government in the Sunshine Act (Sunshine
Act), 5 U.S.C. ? 552b. Congress was clearly
aware that these various open records acts
overlapped in places. When itsenacted the
Privacy Act, for example, Congress specifi-
cally provided that no agency could rely on
an FOIA exemption to withhold from an
individual any record to which that individ.
ual would otherwise be entitled under the
provisions of the Privacy Act. 5 U.S.C.
? 552a(q). Similarly, when in 1976 Con-
gress enacted the Sunshine Act, it amended
the provision of the FOIA with which we-
are now concerned to specify that exemp-
tions under the Sunshine Act could not be
asserted to block disclosure under the
FOIA. Government in the Sunshine Act,
Pub.L. No. 94-409, ? 5(b), 90 Stat. 1247
(amending 5 U.S.C. ? 552(bX3)).
The district court inferred that Congress
did not intend Privacy Act exemptions to be
applicable in FOIA cases. We reach the
indicates that the Privacy Act is not to
tory
,
be used to block disclosures required by the'
more general Freedom of Information Stat-
ute.
The court therefore concludes the material
covered by the Privacy Act exemptions do
not, without more, fall within exemption 3 of
the Freedom of Information Act. 5 U.S.C.
cifically exempted from disclosure by statute
While it is true that there is some
tension between the two statutes, and that-
the literal wording of exemption 3 can be
read to include the Privacy Act, the court
cannot ignore the legislative history and the
general structure of these laws. See general-
ly Train v. Colorado Public Interests Re-
search Group. Inc., 426 U.S. 1, 96 S.Ct. 1938,
48 L.Ed.2d 434 (1976). Given this conclu-
sion, defendants must supply plaintiff with
those documents for which they have
claimed only an exemption under 5 U.S.C.
? 552a(k)(5).
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CHURCH OF SCIENTOLOGY OF CALIFORNIA v. McLEAN 691
Cite as615F.2d691 (1980)
nt to
)sure
the
uded
d of
)X3).
Sui-_
Con-
acts
Act,
the
hine
any
acts
the
cifi-
on
an
vid-
the
'on-
(led
we
.-np-
be
the
tct,
247
?ess
be
the
to
the
tat-
vial
do
of
;.C.
pe-
ute
me
tat
be
urt
:he
a1-
te?
33.
lu-
ith
ve
C.
opposite conclusion., uongress nas oovious-
y.-
these various open records acts, and in the
instances just noted it specifically indicated
kwhen the exemptions of one act should not
.-We therefore decline inferentially to limit
the scope of 5 U.S.C. ? 552(b)(3) where
Congress has not specifically indicated an
intent. to do so.
? Accordingly, we reverse the district
court's summary judgment in favor of
Painter, and remand with instructions to
consider the applicability of the Privacy Act
exemption (k)(5), 5 U.S.C. ? 552a(kX5), to
the material sought by Painter as to which
the government claimed the Privacy Act
exemption applied.
REVERSED in part and REMANDED
with instructions.
CHURCH OF SCIENTOLOGY OF CALI-
FORNIA, a Non-Profit Corporation, un-
der the laws of California, Plaintiff-Ap-
pellant,
V.
John McLEAN and Nancy McLean,
Defendants-Appellees.
No. 79-2629
Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
April 18, 1980.
In a slander suit, plaintiff moved to
disqualify one of defendant's two attorneys.
3. We note that in a recent case, Terkel v. Kel-
ley, 599 F.2d 214 (7th Cir. 1979), the Seventh
Circuit reached the same result we have ar-
rived at here. That court said:
Although the Freedom of Information Act
does not contain a comparable exemption [to
the lower court that the two statutes must be
read together, and that the Freedom of Infor-
mation Act cannot compel the disclosure of
The United States District Court for the
Middle District of Florida, Wm. Terrell
Hodges, J., denied the motion and plaintiff
appealed. The Court of Appeals, Alvin B.
Rubin, Circuit Judge, held that: (1) the
attorney's consulting with the plaintiff
about a zoning matter did not bar his repre-
senting the defendant in this case where
there was no evidence that any issue in this
case was ever discussed with the attorney
or that he had any confidential information
about it, and (2) the appeal was frivolous
and the defendant was entitled to damages
caused by the appeal, including a reasonable
attorney's fee and double costs.
1. Attorney and Client X21
Lawyer need not disqualify himself in
matter concerning former client unless ter-
minated employment had some substantial
relationship to pending suit or unless he had
received some privileged information.
2. Attorney and Client X32.- -.
To warrant disqualification of counsel,
there must be showing of reasonable possi-
bility that some specifically identifiable im-
propriety occurred and likelihood of public
suspicion must be weighed against interest
in retaining counsel of one's choice. ABA
Code of Professional Responsibility, Canon
3. Attorney and Client X21
Defense counsel in slander suit was not
required to disqualify himself because
plaintiff had previously consulted with him
about a zoning matter where there was no
evidence that any issue in slander case was
information that the Privacy Act clearly con-
templates to be exempt. .
599 F.2d at 216. Our holding, however, is not
so broad. We only hold that material exempt-
ed from disclosure under the provisions of the
Privacy Act are matters "specifically exempted
from disclosure by statute" under 5 U.S.C.
? 552(b)(3).
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PORTER v. UNITED STATES DEPT. OF JUSTICE
Cite as 717 F.2d 787 (1983)
787
gued, be accomplished by means of an "ex-
ecutive sanction." See note 9 supra. Sig-
nificantly, the subcommittee itself ex-
plained that the additional deterrent value
associated with an action by the govern-
ment for a penalty would serve "no worth-
while purpose." See p. 779 supra.
Conceivably, the subcommittee could
have reached this conclusion because it as-
sumed that the United States already had
.available a far more powerful enforcement
weapon: the right to sue for the invalida-
tion of a patent. The cost of invalidation-
here the patented product generates some
$190 million in annual sales, see note 2
supra -dwarfs the proposed $5,000 fine.
But it seems improbable that the subcom-
mittee simply assumed the existence of such
an important executive sanction. After
having expressly considered and rejected
the Justice Department's proposal to in-
clude a statutory "right of action in the
United States" to penalize noncompliance
with Section 135(c), see p. 779 supra,
the subcommittee failed to specify any
other executive sanction. This evidence
suggests that if the subcommittee as-
sumed anything, it assumed that statuto-
ry silence would entirely foreclose enforce-
ment of section 135(c) by the United. States.
V.
[7] Analysis of the first two Cort fac-
tors leads to the conclusion that Congress
did not intend that the United States en-
force section 135(c). Since neither the lan-
guage nor legislative history of the provi-
sion suggests an intent to authorize en-
forcement by the government, it is not nec-
essary to "trudge through all four of the
[Cort] factors," Merrill Lynch, supra, 456
U.S. at 388, 102 S.Ct. at 1844, to decide that
section 135(c) gives no implied right of ac-
tion to the United States.
We are not unmindful of the govern-
ment's contention that enforcement of sec-
tion 135(c) would be strengthened if a cause
of action were granted to the United States
as well as to private plaintiffs. Patent
litigation is very expensive and private par-
ties generally will be unable to discover
"secret" interference settlements without
becoming involved in such litigation. Ac-
cordingly, there may be merit to the
government's prediction that some patent-
holders will safely violate section 135(c) un-
less the United States is permitted to en-
force the statute. But in view of the sepa-
ration of powers concerns associated with
judicially inferring a cause of action, from a
silent statute, and in view of the Supreme
Court's restrictive approach to implied rem-
edies since Cort v. Ash, the federal courts
may no longer recognize an implied right of
action solely because it would advance the
purpose of a statute. See California v. Si-
erra Club, supra, 451 U.S. at 297-98, 101
S.Ct. at 1781. That decision is for Congress
to make. If Congress desires that the Unit-
ed States play a role in the enforcement of
section 135(c), it may so provide expressly.
In the absence of an express provision, we
decline to infer one now.
The order of the district court holding
that the United States may sue to enforce
section 135(c) will be reversed, and the case
remanded to the district court with instruc-
tions to dismiss the complaint for failure to
state a claim. In light of this decision, we
do not reach the merits of the complaint.
o E KEYNUMBER SYSTEM
PORTER, Judith R. and Porter,
Gerald J., Appellants,
UNITED STATES DEPARTMENT
OF JUSTICE.
United States Court of Appeals,
Third Circuit.
Argued Aug. 4, 1983.
Decided Sept. 15, 1983.
Plaintiffs who had sought release of
information concerning them in the files of
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 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
717 FEDERAL REPORTER, 2d SERIES
the FBI brought Freedom of Information
Act action. The United States District
Court for the Eastern District of Pennsyl-
vania, Charles R. Weiner, J., 551 F.Supp.
595, entered judgment in favor of govern-
ment and plaintiffs appealed. The Court of
Appeals, Gibbons, Circuit Judge, held that:
(1) summary judgment was inappropriate
with respect to claim of exemption under
exemption 1 of the Freedom of Information
Act, and (2) Privacy Act provision for per-
son's access to his own records did not pro
tanto repeal the Freedom of Information
Act access provisions with respect to first-
party requests.
Reversed.
1. Federal Civil Procedure X2481
Where, if Vaughn index had been dis-
closed to plaintiffs in Freedom of Informa-
tion Act action, counsel would have been
able to raise certain questions about it,
where court could then have considered ap-
propriateness of limited discovery, and
where consideration discovery was appro-
priate because the only investigation al-
legedly took place over ten years earlier
whereas classification stamps were not
placed on documents until after plaintiffs'
requests, summary judgment on the issue of
whether the information was exempt was
inappropriate. 5 U.S.C.A. ? 552.
2. Records e-62
Husband's and wife's requests for FBI
search for material pertaining to either of
them and for release of the material pursu-
ant to the Freedom of Information Act
should not be construed simply as to first-
party requests, especially where husband
had previously sought copy of any file
which the Bureau had on him or his wife. 5
U.S.C.A. ? 552.
3. Statutes X223.1
Privacy Act and Freedom of Informa-
tion Act are reconcilable by reading the
special remedy in the Privacy Act as serv-
ing to vindicate privacy interests in a spe-
? Hon. Carol Los Mansmann, United States Dis-
trict Judge for the Western District of Pennsyl-
cial manner while leaving standing the
preexisting Freedom of Information Act
remedy providing access to information for
its own sake. 5 U.S.C.A. ?? 552, 552a(d).
4. Records C-31
Provision of the Privacy Act requiring
each agency which maintains a system of
records to allow individuals to gain access
to their records was not a pro tanto repeal
of the Freedom of Information Act and is
not the sole means of access for first-party
information. 5 U.S.C.A. ?? 552, 552a(d).
5. Statutes C-219(6)
Where Department of Justice's inter-
pretation of Privacy Act and Freedom of
Information Act interrelationship had vacil-
lated and where Justice Department was
not the only federal agency with obligations
under the Privacy Act, it could not claim a
presumption in favor of its interpretation of
the Act based on alleged expertise in re-
spect to a statute which it was charged with
administering. 5 U.S.C.A. ? 552a.
Raymond J. Bradley (argued), Brian P.
Flaherty, H. Robert Fiebach, Wolf, Block,
Schorr & Solis-Cohen, Philadelphia, Pa., for
appellants.
Peter F. Vaira, Jr., U.S. Atty., Philadel-
phia, Pa., J. Paul McGrath, Asst. Atty. Gen.,
Leonard Schaitman, Douglas Letter (ar-
gued), Attys., Appellate Staff, Civ. Div.,
Dept. of Justice, Washington, D.C., for ap-
pellees.
Cornish F. Hitchcock, Alan B. Morrison,
Public Citizen Litigation Group, Wash-
ington, D.C., for amicus curiae Freedom of
Information Clearinghouse.
Before GIBBONS and HUNTER, Circuit
Judges, and MANSMANN,* District Judge.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Judith R. Porter and Gerald J. Porter of
Ardmore, Pennsylvania, appeal from a sum-
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UNITED STATES DEPT. OF JUSTICE
Cite as 717 F.2d 787 (1983)
mary judgment in favor of the Department
of Justice in their suit under the Freedom
of Information Act, 5 U.S.C. ? 552 (1982),
to compel disclosure of information about
them in the files of the Federal Bureau of
Investigation. The trial court granted sum-
mary judgment on two grounds: that the
Privacy Act, 5 U.S.C. ? 552a (1982), is a
nondisclosure statute within the meaning of
the Freedom of Information Act; and that
in any event the material sought is exempt
from disclosure under the Freedom of In-
formation Act. We reverse, and remand
for further proceedings.
1.
In March of 1981 Mr. Porter wrote to the
FBI Freedom of Information Act Director
requesting copies of any files kept on him
or his wife. The letter indicated. that it was
his understanding that the FBI investigated
them in 1972. On May 11, 1981, the Chief
of the FBI Records Management Division
informed them that the central records sys-
tem at FBI Headquarters in Washington
revealed no information indicating that
they had ever been subject to investigation
by the Bureau. The request was forwarded
to the Bureau's Philadelphia Office. On
June 4, 1981, that office informed the Por-
ters that a "main" file concerning Judith R.
Porter had been located, and that this file
contained a reference to Gerald.
The file was referred to FBI Headquar-
ters, which on June 18, 1981, informed the
Porters that Judith R. Porter was the sub-
ject of a limited security investigation, ini-
tiated to determine if any activity on her
part constituted a risk to national security.
They were also informed that the investiga-
tion was closed after it was determined that
no such risk existed, and that the file con-
tained a reference to Gerald. Finally, they
were told that the file consisted of five
pages, all of which was classified pursuant
to the national defense and foreign policy
1. 5 U.S.C. ? 552(b)(1) provides:
This section does not apply to matters that
are--(l)(A) specifically authorized under cri-
teria established by an Executive order to be
kept secret in the interest of national defense
or foreign policy and (B) are in fact properly
classified pursuant to such Executive or-
der;....
2008/12/08: CIA-RDP89B00236R000200220002-6
exemption to the Freedom of Information
Act.'
The Porters filed an administrative ap-
peal to the Office of Privacy and Informa-
tion Appeals of the Department of Justice,
pointing out that it was a total mystery to
them what activity they had engaged in
could have prompted an investigation of
their risk to national security. They re-
quested that if their appeal be denied, the
government inform them:
1. On what date was the investigation
of Judith R. Porter begun and when was
it concluded;
2. What activity or activities of Ju-
dith R. Porter prompted the investiga-
tion; _
3. Do the five pages of classified in-
formation contain letters written by Ju-
dith R. Porter, transcripts of public state-
ments made by Judith R. Porter, or news-
paper reports of her activities;
4. Do the references to Gerald J. Por-
ter pertain to activities in which he en-
gaged or are they simply a mention of
the fact that he is the spouse of Judith R.
Porter; and '
5. At what future date is it anticipa-
ted that the file will be declassified?
On September 30, 1981, the Acting Di-
rector of the Office of Privacy and Infor-
mation Appeals ruled:
After careful consideration of your ap-
peal, I have decided to affirm the initial
action in this case. The material pertain-
ing to you is classified and I am affirm-
ing the denial of access to it on the basis
of 5 U.S.C. [?] 552(b)(1). This material,
along with a copy of your appeal letter, is
being referred to the Department Review
Committee to determine whether it war-
rants continued classification under Exec-
utive Order 12065. You will be notified
of the Committee's final decision results
in the declassification of any informa-
tion....
 790
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The September 30, 1981 letter advised the
Porters of their right to seek judicial review
of the ruling, and on June 18, 1982 they
filed their complaint in this action.
In answer to the complaint the Depart-
ment of Justice contended for the first time
that the Freedom of Information Act did
not afford the Porters a remedy, but that
the Privacy Act of 1974, 5 U.S.C. ? 552a
(1982), is their exclusive remedy. The De-
partment contended, as well, that under the
Privacy Act the materials sought were ex-
empt from disclosure. Moreover, according
to the Justice Department, even if the
Freedom of Information Act were to apply
to the Porters, the materials would be ex-
empt under 5 U.S.C. ? 552(b)(3) (1982),
which provides that the Act does not apply
to matters
(3) specifically exempted from disclo-
sure by statute ..., provided that such
statute (A) requires that the matters be
withheld from the public in such a man-
ner as to leave no discretion on the issue,
or (B) establishes particular criteria for
withholding or refers to particular types
of matters to be withheld; ....
According to the Justice Department, sec-
tion (j)(2) of the Privacy Act, 5 U.S.C.
? 552a(j)(2) (1982), is such an exemption
statute.
The Porters served interrogatories seek-
ing to learn the basis for the Justice De-
partment's claim of exemption. These the
Department refused to answer. Instead it
moved for a protective order on which the
trial court never ruled. While the motion
was pending the Department moved for
summary judgment, relying on the affida-
vit of Special Agent Douglass Ogden. This
affidavit was served on the Porters.
The Ogden affidavit recounted the ad-
ministrative history of Porter's information
request and described generally the manner
in which the five page file was retrieved.
As to the file's contents, Ogden stated:
One FBIHQ "main" file containing the
results of the Philadelphia FBI investiga-
tion was located wherein Judith R. Porter
was the subject. This file reflected a
preliminary investigation initiated to de-
termine if a specific activity of Judith R.
Porter constituted a risk to national se-
curity. The investigation was predicated
upon possible violations of Federal law,
including, but not limited to, Title 18,
U.S.C., Sections 792 et seq. (Espionage);
2152 et seq. (Sabotage); Title 22, U.S.C.,
Section 611 et seq. (Foreign Agent Regis-
tration Act); and Title 50, U.S.C., Section
401 et seq. (National Security Act of
1947). The investigation was closed after
it was determined that no violation of
Federal law had occurred and that Judith
R. Porter constituted no risk to the na-
tional security.
Ogden also stated that the requested rec-
ords were maintained in the Bureau's Cen-
tral Record System which has by regulation
been exempted from access pursuant to ex-
emption (j)(2) of the Privacy Act, 5 U.S.C.
? 552a(j)(2) (1982). He stated further that
the file fell within Freedom of Information
Act exemption 1, covering national defense
and foreign policy materials. Finally, Og-
den noted that after the lawsuit began the
Bureau had reviewed the file and declassi-
fied "a small amount of material." The
declassified material was not revealed, how-
ever, because in the Department's view the
entire file, even though partly declassified,
was still covered by Privacy Act exemption
(j)(2).
The Porters attempted to depose Agent
Ogden, but the Department moved for a
protective order, which on October 13, 1982,
the trial court granted, pending its in cam-
era inspection of the file.
Following the court's order staying Og-
den's deposition and ordering the Depart-
ment to provide the file for its inspection,
the Department furnished the court, ex
parte, with two affidavits of Robert Peter-
son, a Special Agent in the FBI National
Security Affidavits Unit. The Department
explained that the first Peterson affidavit,
dated September 23, 1982, was intended to
serve as a public Vaughn index in compli-
ance with Fern v. Bell, 645 F.2d 1213, 1220
(3d Cir.1981), modified on other grounds,
671 F.2d 769 (3d Cir.1982), and Vaughn v.
Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. de-
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nied, 415
873 (1974
Porters
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 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
PORTER v. UNITED STATES DEPT. OF JUSTICE 791
Cite as 717 F.2d 787 (1983)
nied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d Thus summary judgment was entered in
873 (1974), but was being withheld from the favor of the Department?
Porters to avoid the contention that fur-
nishing an affidavit required by the Free- II.
dom of Information Act was a waiver of
the claimed exemption under the Privacy
Act. Since it was relying on the Privacy
Act, the Department insisted it had no obli-
gation to furnish a Vaughn index? The
second Peterson affidavit, dated October 20,
1982, was furnished to assist the Court in
its examination of the five page file, which
was furnished simultaneously. The second
affidavit is not in the record and its con-
tents have not been disclosed.
Peterson's September 23, 1982 affidavit
contends that the documents in the file
were properly classified under Executive
Order 12356 which went into effect in Au-
gust 1982, because (1) they concerned intel-
ligence activities, sources, or methods, and
foreign relations of the United States; and
(2) their disclosure could be expected to
cause damage to the national security. Pe-
terson segregated out minor portions of the
documents that could be declassified under
Freedom of Information Act exemption 1.
What was declassified was the home ad-
dress of Mr. and Mrs. Porter, their respec-
tive ages, their race, their height, the color
of their hair and eyes, and the conclusion,
"In view of the above, no further investiga-
tion is believed warranted at this time and
captioned case is being closed." Every oth-
er part of the file, including the dates of the
documents, Peterson alleged to be properly
classified as exempt from disclosure under
Freedom of Information Act exemption 1.
The district court examined the file in
camera and concluded that the documents
had been properly classified under exemp-
tion 1 pursuant to an Executive Order.
The court also held that, because the Priva-
cy Act exemption applied, the Porters were
not entitled to see even those portions of
the documents which had been declassified.
2: See the discussion in Part II, infra, on the
difference in scope of the claimed exemptions.
3. See Porter v. United States Department of
Justice, 551 F.Supp. 595, 600 (E.D.Pa.1982).
The Justice Department, after the Por-
ters appealed to this court, concluded that it
would furnish them with copies of one Pe-
terson affidavit, and with copies of the con-
tents of the file, redacted so as to eliminate
all material except that referred to above.
Pointing to this disclosure, it contends that
if we can affirm on the basis of Freedom of
Information Act exemption. 1 there is no
need to reach the broader exemption which
it claims under the Privacy Act .4 Thus our
first inquiry is whether we can affirm the
summary judgment insofar as it applies to
the redacted portions of the documents.
What is immediately apparent from the
face of the redacted documents is that they
bear classification stamps, with dates and
initials, possibly of the classifying officers.
The earliest legible date is 5/22/81, but
there are a number of later dates, extend-
ing through 8/27/82. The classification
stamps made in August of 1982 bear the
initials RFP, which are, perhaps, those of
the affiant Robert F. Peterson. Other ini-
tials include rpm, KJ, CRT, and WR. Still
others are illegible, and some have been
redacted. Peterson's affidavit gives no ex-
planation about the significance of these
stamps and initials, or of the identity of the
persons whose initials appear. He does not
say whether, in exercising his judgment to
excise the entire contents of the documents
except as noted above, he relied on the
judgment of those persons. He does not
explain what the significance of their nota-
tions is. Thus he does not disclose whether,
if the notations have to do with classifica-
tion, their conclusions and his coincided.
The Peterson September 23, 1982 affida-
vit sets out in considerable detail the devel-
opment of a four-symbol exemption 1 code
4. In Provenzano v. Department of Justice, 717
F.2d 799 (3d Cir.1983), argued on the saris? ksy
as this case, the Privacy Act issue is squarely
presented, because no disclosure whatever has
been made.
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 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
to explain handwritten notations on the
face of the redacted version of the docu-
ments. The Code is as follows:
(b)(1)C 1 Intelligence Source Contact
Dates
(bXl)C 2 Intelligence Source Singular
Identifier/Identifiers
(bXl)C 3 Information Relating to Intelli-
gence Source Data Collection Capabili-
ty
(b)(l)C 4 Detailed Information Pertaining
to or Provided by an Intelligence
Source that Could Reasonably Be Ex-
pected to Identify the Source if Dis-
closed
(b)(l)C 5 Channelization/Dissemination
Instructions For Intelligence Source In-
formation
(bXl)D 1 Information Gathered in the
Course of Activity by the United States
Aimed at Obtaining Intelligence Infor-
mation About or From a Foreign Coun-
try, Organization, Group or Individual
There are at least forty notations of (b)(1)D
1. There is one notation (b)(1)C 1, three
notations (b)(1)C 2, three notations (b)(1)C
3, two notations (b)(1)C 4, and two notations
(bXl)C 5. Thus it appears that only one
deletion was required to conceal the date of
an intelligence source contact, only three
deletions were required to conceal the iden-
tity of an intelligence source, only three
deletions of information related to intelli-
gence source data collection capability, only
two deletions of information might have
revealed the identity of an intelligence
source, and only two deletions of informa-
tion related to channelization/dissemination
instructions. Moreover in the instances
where C 1 through C 4 notations appear,
the symbols refer to the same information.
Only in three places is information deleted
which would allegedly disclose intelligence
5. That reference states:
The unauthorized disclosure of information
concerning foreign relations or foreign activi-
ties of the United States can reasonably be
expected to, inter alia:
(a) Lead to foreign diplomatic, economic
and military retaliation against the United
States;
sources. The vast bulk of the deletions fall
into the category "Information Gathered in
the Course of Activity by the United States
Aimed at Obtaining Intelligence Informa-
tion About or From a Foreign Country,
Organization, Group or Individual."
The Code is a part of an exemption 1
catalog, and that catalog explains that cate-
gory (bXl)D 1 deals with the foreign rela-
tions or foreign activities of the United
States. It describes the information as "In-
formation Gathered in the Course of Activi-
ty by the United States Aimed at Obtaining
Intelligence Information About or From a
Foreign Country, Organization, Group, or
Individual." Literally, the category of in-
formation includes information completely
unrelated to foreign relations, if it happens
to have been gathered "in the course of
activity by the United States" which is
somehow related to intelligence. Perhaps
so literal a reading of the catalog is not
intended. In discussing the logical nexus
between disclosure and damage to national
security, however, the catalog states: .
This category of information can be sen-
sitive in nature. This condition exists in
part due to the delicate nature of interna-
tional diplomacy. This information must
be handled carefully so as not to jeopar-
dize the fragile relationships that exist
between the United States and certain
foreign governments. It is my judgment
that the disclosure of this information
could reasonably be expected to impact
negatively on United States foreign rela-
tions and result in damage to the national
security.
There is considerable ambiguity here, and it
is not removed by the cross reference at the
end of the quoted passage to page Y of the
Catalog.5 Moreover the ambiguity is com-
of these activities;
about a foreign country and devise counter.
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 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
PORTER v. UNITED STATES DEPT. OF JUSTICE 793
Cite as 717 F.2d 787 (1983)
pounded when the redacted papers are com-
pared with the Ogden affidavit, which was
disclosed to the Porters. While the Ogden
affidavit relies on the Justice Department's
interpretation of the Privacy Act as afford-
ing a blanket exemption for whole systems
of records, it actually discloses that Judith
Porter was investigated for possible espio-
nage, 18 U.S.C. ?? 792-799 (1976), possible
sabotage, 18 U.S.C. ?? 2152-2156 (1976 &
Supp. V 1981), and possible violations of the
National Security Act of 1947, as amended,
50 U.S.C. ?? 401-426 (1976 & Supp.V 1981).
Thus the Peterson affidavit, purporting to
furnish a Vaughn index in compliance with
the concededly narrower nondisclosure pro-
visions of the Freedom of Information Act,
actually discloses less about the contents of
the file than the Ogden affidavit on which
the Justice Department relies for the broad-
er Privacy Act exemption which it claims.
[1] We recognize that there is tension
between the discovery provisions of the
Federal Rules of Civil Procedure and the
Freedom of Information Act exemptions
from disclosure. But we have held, along
with most courts which have considered the
issue, that Congress did not intend to leave
a requester "helpless to contradict the
government's description of information or
effectively assist the trial judge." Ferri v.
Bell, 645 F.2d 1213,1222 (3d Cir.1981). Had
the Peterson Vaughn index been disclosed,
counsel would have been able to raise the
questions about it which we have noted
above. The trial court could then have
considered the appropriateness of limited
discovery such as has been ordered by some
courts. See, e.g., Stein v. Department of
Justice, 662 F.2d 1245, 1253 (7th Cir.1981);
Phillippi v. Central Intelligence Agency, 546
F.2d 1009, 1013, 1014 n. 12 (D.C.Cir.1976);
Schaffer v. Kissinger, 505 F.2d 389, 391
(D.C.Cir.1974); Murphy v. Federal Bureau
of Investigation, 490 F.Supp. 1134, 1136
(e) Endanger citizens of the United States
who might be residing or traveling in the
foreign country involved;
resulting in damage to the national security.
6. In Section 2(a) of the Privacy Act Congress
found that:
(D.D.C.19811). Consideration of some dis-
covery would appear to be particularly ap-
propriate in this instance, in which the Por-
ters allege that the only investigation took
place over a decade ago, while the classifi-
cation stamps were placed on the docu-
ments only after their March 1981 request.
The Peterson affidavit, and the redacted
documents, demonstrate the need for fur-
ther inquiry. A summary judgment that
Freedom of Information Act exemption 1
applies is inappropriate. Fed.R.Civ.P. 56(f).
III.
Since we have concluded that the summa-
ry judgment cannot be affirmed on the
authority of exemption 1 of the Freedom of
Information Act, we must consider the Jus-
tice Department's alternative position that
the Privacy Act authorizes nondisclosure.
Section 3 of that Act added to Title 5 of the
United States Code, section 552a.
A. The Justice Department:
Interpretation of the Privacy Act
The Department's position depends upon
the interrelationship of three subsections of
section 552a. The first provides:
No agency shall disclose any record
which is contained in a system of records
by any means of communication to any
person, or to another agency, except pur-
suant to a written request by, or with the
prior written consent of, the individual to
whom the record pertains, unless disclo-
sure of the record would be-
(2) required under section 552 of this
title [the Freedom of Information
Act]; ....
5 U.S.C. ? 552a(b) (1982). This subsection
implements the basic policy of the Privacy
Act, announced in the legislative findings,
of safeguarding constitutionally recognized
individual privacy rights .6 It prohibits dis-
(1) the privacy of an individual is directly
affected by the collection, maintenance, uie,
and dissemination of personal information by
Federal agencies;
(2) the increasing use of computers and
sophisticated information technology, while
essential to the efficient operations of the
Government, has greatly magnified the harm
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closure of the contents of systems of rec-
ords 7 pertaining to individuals except with
their consent, unless the disclosure falls in
one of eleven separate categories. The
second exception is disclosure mandated by
the Freedom of Information Act. The plain
language of section 552a(b)(2) is that the
prohibition on disclosure in the Privacy Act
is inapplicable to Freedom of Information
Act requests. The Department of Justice
concedes that this is so with respect to a
Freedom of Information Act request made
by anyone in the world other than the indi-
vidual w(to is identified in a system of rec-
ords.
The second relevant subsection provides:
Each agency that maintains a system
of records shall-
(1) upon request by any individual to
gain access to his record or to any infor-
mation pertaining to him which is con-
tained in the system, permit him ... to
review the record and have a copy made
of all or any portion thereof in a form
comprehensible to him, . . .
(2) permit the individual to request
amendment of a record pertaining to
him...;
(3) permit the individual who disagrees
with the refusal of the agency to amend
his record to request a review of such
refusal ....
5 U.S.C. ? 552a(d) (1982). Section 552a(d)
implements the congressional policy of min-
imizing harm to individuals flowing from
the maintenance of inaccurate information
about them in a system of records which
even under the strictures of section 552a(b)
may be disseminated to eleven categories of
recipients. This access provision is relevant
to individual privacy that can occur from any
collection, maintenance, use, or dissemina-
tion of personal information;
(3) the opportunities for an individual to
secure employment, insurance, and credit,
and his right to due process, and other legal
protections are endangered by the misuse of
certain information systems;
(4) the right to privacy is a personal and
fundamental right protected by the Constitu-
tion of the United States; and
(5) in order to. protect the privacy of indi-
viduals identified in information systems
maintained by Federal agencies, it is neces-
to the instant case because it is the Justice
Department's position that it is a pro tan to
repeal of the Freedom of Information Act.
The Department concedes that until the
Privacy Act individuals could, under the
Freedom of Information Act, gain access to
records pertaining to themselves, subject
only to the exemptions contained in that
statute. It now urges, contrary to the posi-
tion it took until sometime late in 1981, that
section 552a(d) of the Privacy Act eliminat-
ed that Freedom of Information Act right,
and became, for individuals, the sole means
of access to records pertaining to them-
selves. That being the case, the Depart-
ment urges, the exception in section
552a(b)(2), preserving access through the
Freedom of Information Act, should be
read as applicable to every requester in the
world except the individual named in a
system of records.
The third Privacy Act subsection on
which the Department of Justice relies pro-
vides:
The head of any agency may promul-
gate rules ... to exempt any system of
records within the agency from any part
of this section except subsection (b), (c)(1)
and (2), (e)(4)(A) through (F), (e)(6), (7),
(9), (10) and (11), and (i) if the system of
records is-
(2) maintained by an agency or compo-
nent thereof which performs as its princi-
pal function any activity pertaining to
the enforcement of criminal laws ....
5 U.S.C. ? 552a(j)(2) (1982); see also 5
U.S.C. ? 552a(k)(2) (1982). The Depart-
ment of Justice has adopted regulations
pursuant to section 552a(j)(2), exempting
sary and proper for the Congress to regulate
the collection, maintenance, use, and dissemi-
nation of information by such agencies.
Privacy Act of 1974, Pub.L No. 93-579, ? 2(a),
88 Stat. 1896, 1896..
7. 5 U.S.C. ? 552a(a)(5) (1982) provides:
[T]he term "system of records" means a
group of any records under the control of any
agency from which information is retrieved
by the name of the individual or by some
identifying number, symbol, or other identify-
ing particular assigned to the individual; ....
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the ent
FBI.
listing
not incl
ment's
these r
totally
552a(d)
there is
to any
sensiti%
It is
promul
created
Act ex,
would
guage
er part
552a(c)
the coi
--Inform
ment's
entirel-
552a(d:
dom of
552a(d;
access
tioned.
could,
Act, ai
gain a
cedes,
nershil
self ur
[2]
Porter
of any
dith Po
establis
Thus,
third-]
Mrs. I
the P
1981,
tion -
reque?
the F
mater
8. Se-
ing r
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PORTER v. UNITED STATES DEPT. OF JUSTICE
Cite as 717 F.2d 787 (1983)
the entire Central Record System of the
FBI. 28 C.F.R. ? 16.96 (1982). Since the
listing of exceptions in section 552a(j) does
not include section 552a(d), it is the Depart-
ment's position that by the adoption of
these regulations the files of the FBI are
totally exempt from disclosure to a section
552a(d) requester. That being the case,
there is no need to furnish a Vaughn index
to any such requester or to disclose non-
sensitive portions of records.
It is not the Department's position that
promulgation of 28 C.F.R. ? 16.96 (1982)
created a blanket Freedom of Information
Act exception for FBI files. That position
would be inconsistent with the plain lan-
guage both of section 552a(b)(2) and of oth-
er parts of the Privacy Act such as section
552a(c)(1), which unequivocally contemplate
undertaken and that any such material be
released to them." The Department of Jus-
tice would have us construe the request by
Porter as having been made by both Por-
ters, each for his or her own file. We do
not think the quoted allegation in the com-
plaint can fairly be so construed. The com-
plaint relies solely on the Freedom of Infor-
mation Act, and was drafted before the
Porters were informed of the Department's
contention that the Freedom of Informa-
tion Act was inapplicable to first-party re-
quests. Thus it would be fundamentally
unfair to rely on the wording of the com-
plaint to convert Mr. Porter's third-party
request for the contents of the file on his
wife into a first-party request.
The Department of Justice points out
that in response to its form letter both of
the Porters, on April 22, 1981, furnished
written consent to the release of any docu-
ments in the FBI files pertaining to them.
This was done in response to a sentence in
the form letter:
Before we can commence processing your
request for records pertaining to another
individual, we must know whether you
have been authorized by that individual
to receive these documents. It will be
necessary for you to submit to the FBI
the original of a written authorization
which has been duly attested by a Notary
Public.
Clearly the most that can be read into the
Porters' April 22, 1981 response is that each
was consenting to the release to the other
of information in his or her own file. The
response is entirely consistent with the posi-
tion that Porter was pursuing a third-party
request for the contents of his wife's file.
Finally, the Department of Justice urges
that a husband's request for examination of
the contents of his wife's file should be
treated as a sham third-party request. Cer-
tainly we are. not prepared to hold that this
is so in every case as a matter of law, for no
authority has been cited to us in support of
so extraordinary a proposition. Arguably
some ostensible third-party requests might
made under subsection (b)(2), that is, pursuant
to the Freedom of Information Act.
the continued operation of the Freedom of
Information Act .8 Rather, the Depart-
ment's reliance on section 552a(j) depends
entirely upon its contention that section
552a(d) was a pro tanto repeal of the Free-
dom of Information Act, by making section
552a(d), for individuals, the sole means of
access to records in which they are men-
tioned. It concedes that any third party
could, under the Freedom of Information
Act, and subject to its specific exemptions,
gain access to the same records. It con-
cedes, moreover, that a corporation or part-
nership could obtain information about it-
self under the Freedom of Information Act.
B. The Porters' Request
[2] The initial request, signed by Mr.
Porter alone, read "Please send me a copy
of any file you have on me or my wife-Ju-
dith Porter." The government's responses
establish that there is no file on Mr. Porter.
Thus, prima facie, we are dealing with a
third-party request by Porter for a file on
Mrs. Porter. In their complaint, however,
the Porters allege that "[O]n March 18,
1981, pursuant to the Freedom of Informa-
tion Act ('FOIA'), Mr. and Mrs. Porter
requested that a search of the records of
the Federal Bureau of Investigation for
material pertaining to either of them be
8. Section 552a(c)(1) excepts from the account-
ing requirements of the Privacy Act disclosures
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796
as a matter of fact be made on behalf of a
first-party requester. But the issue would
be factual. In the summary judgment rec-
ord before us, however, neither the Ogden
affidavit which was revealed to the Porters
nor the Peterson affidavit which was not
revealed until appellees' brief was filed,
suggests that the third-party request was a
sham. The trial court, moreover, made no
reference to the question whether Mr. Por-
ter's request for his wife's record was a
sham.
Thus on this record, even assuming that
the Justice Department correctly construes
section 552a(d) as a pro tanto repeal of the
Freedom of Information Act, the summary
judgment in its favor cannot stand. We
are dealing with what on its face is a third-
party rather than a first-party request.
The Department concedes that the Freedom
of Information Act applies to third-party
requests.
C. The Proceedings on Remand
The Justice Department's position that
Porter's request for the file on his wife may
be a sham suggests that there will be fur-
ther proceedings in an attempt to establish
as much factually. That effort would in-
volve the parties and the court in further
time-consuming and expensive proceedings,
proceedings which would be entirely fruit-
less if the Justice Department's contention
that section 552a(d) is the exclusive access
route for first-party requesters were to be
rejected. Thus even though on the Depart-
ment's own interpretation of the Privacy
Act summary judgment cannot stand, it is
appropriate to address the merits of that
interpretation?
Thus far three courts of appeals have
considered the question whether the Priva-
cy Act bars first-party access under the
Freedom. of Information Act to entire sys-
tems of records exempted by agency action.
9. See note 4 supra.
10. The Terkel court's analysis consists of this
sentence:
Although the Freedom of Information Act
does not contain a comparable exemption [to
section 552a(k)(5) 1, we agree with the lower
court that the two statutes must be read
The first is Terkel v. Kelly, 599 F.2d 214
(7th Cir.1979), cert. denied, 444 U.S. 1013,
100 S.Ct. 662, 62 L.Ed.2d 642 (1980), in
which without analysis the court simply
stated the result.1? The second is Painter v.
Federal Bureau of Investigation, 615 F.2d
689 (5th Cir.1980), in which the court, with-
out analysis, relied on Terkel v. Kelly. Id. at
691 n. 3. It was not until the Court of
Appeals for the District of Columbia Circuit
decided Green tree v. United States Customs
Service, 674 F.2d 74 (D.C.Cir.1982), that any
appellate court made a searching analysis of
the interrelationship between the two stat-
utes.
In Green tree the district court had held
that section 552a(j) exemptions were "spe-
cifically exempted from disclosure by stat-
ute" within the meaning of section (b)(3) of
the Freedom of Information Act, 5 U.S.C.
? 552(b)(3) (1982). The court so held de-
spite the fact that the Department of Jus-
tice did not agree with that interpretation.
Green tree v. United States Customs Ser-
vice, 515 F.Supp. 1145, 1148 (D.D.C.1981).
On appeal the Justice Department changed
its position. That change in position
prompted Judge Wald to write extensively
on the text and legislative history of the
Privacy Act, and to conclude that the De-
partment was simply wrong. We find
Judge Wald's analysis entirely persuasive.
No point would be served by duplicating it.
We do, however, deem it appropriate to
make some additional observations.
First, the text of the Privacy Act lends
no real support to the Justice Department's
interpretation. Section 552a(j) and section
552a(k) which authorize agencies to promul-
gate exemptions for systems of records both
refer to exemptions only "from any part of
this section." The plain language refers
only to exemptions from the provisions of
section 552a, not to any other section in
Title 5, nor to any other disclosure statute.
together, and that the Freedom of Informa-
tion Act cannot compel the disclosure of in-
formation that the Privacy Act clearly con-
templates to be exempt.
599 F.2d at 216. No mention is made of 5
U.S.C. ? 552a(b)(2) (1982).
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PORTER v. UNITED STATES DEPT. OF JUSTICE 797
Cite as 717 F.2d 787 (1983)
Had Congress intended to authorize the cre- . covers the whole subject of the earlier one
d as a substitute
d
t
i
l
ation by regulation of exemptions from the
Freedom of Information Act it would have
used language such as "this title" rather
than "this section." Moreover the language
in section 552a(b)(2) could hardly be clearer.
This nondisclosure provision expressly ex-
cepts disclosures required under the Free-
dom of Information Act. The language
Congress chose in section 552a(b)(2) of the
Privacy Act simply cannot be tortured so as
to convey an intention to repeal it in part.
The Justice Department's contention that
section 552a(b)(2) refers only to third-party
requests is not apparent on the face of the
statute. Even if it were to be so read,
however, that reading would not support
the inference that the section repeals any
part of another statute. At most it would
support the inference that for first-party
requesters a request is the equivalent of
consent.tt Thus the Justice Department's
entire construction depends on the language
of the Privacy Act access provision, section
552a(d). There is not a word in that section
suggesting that the special remedy which it
provides for the vindication of the privacy
rights which Congress identified in its legis-
lative findings was to be exclusive of all
other rights which the law might elsewhere
provide.
e
en
n
y
and is clear
....' " Radzanower v. Touche Ross & Co.,
426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48
L.Ed.2d 540 (1976) (citing Posadas v. Na-
tional City Bank, 296 U.S. 497, 503, 56 S.Ct.
349, 352, 80 L.Ed. 351 (1936)). That stan-
dard is not satisfied here. The Privacy Act
and the Freedom of Information Act are
perfectly reconcilable by reading the special
remedy in section 552a(d) as serving to vin-
dicate privacy interests in a special manner,
while leaving standing the . preexisting
Freedom of Information Act remedy pro-
viding access to information for its own
sake. Moreover the Privacy Act expressly
states that it is not intended as a substitute
for the Freedom of Information Act. In-
deed its basic thrust is in an opposite di-
rection. To a large extent, though not en-
tirely, it is designed to discourage rather
than encourage disclosure of information
impinging upon the privacy of individuals..
Given the strict rule against repeals by
implication, a legislative intent to accom-
plish such a repeal in this instance would
have to appear in the legislative history
with overwhelming clarity. There is no
such clarity.
There is a certain amount of ambiguity in
the legislative history of the Privacy Act,
with statements by members of Congress in
which each side purports to find support.
That legislative history is reprinted in Staff
of Senate Comm. on Gov't Operations &
House Comm. on Gov't Operations, Sub-
comm. on Gov't Information and Individual
Rights, 94th Cong., 2d Sess., Legislative
History of the Privacy Act of 1974, S. 3418
(Public Law 93-579), Source Book on Priva-
cy (Joint Comm. Print 1976) [Source Book].
The Source Book reveals that the ambigui-
ties arose primarily because the Senate and
the House of Representatives adopted sepa-
rate bills, S. 3413 introduced by Senator
Ervin and H.R. 16373 introduced by Con-
gressman Moorhead. Id. at 9,239. Each
bill was amended in the chamber in which it
originated.. Eventually each chamber re-
statute only if one accepts the proposition that
section 552a(d) is the exclusive means of first-
party access.
[3] Since nothing in the language of
section 552a(d) can be read as an express
pro tanto repeal of the Freedom of Infor-
'
s effort
mation Act, the Justice Department
must be considered as an attempt to find a
pro tan to repeal by implication. The propo-
nent of such a proposition is faced with the
formidable barrier of the settled rule of
statutory construction to the contrary. "It
is, of course, a cardinal principle of statuto-
ry construction that repeals by implication
are not favored." United States v. United
Continental Tuna Corp., 425 U.S. 164, 168,
96 S.Ct. 1319, 1323, 47 L.Ed.2d 653 (1976).
An implied repeal will be found "'(1) where
provisions in the two acts are in irreconcila-
ble conflict, . . . and (2) if the latter act
11. Reference to exemption 3 of the Freedom of
Information Act therefore adds nothing to the
analysis. The Privacy Act is an exemption
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717 FEDERAL REPORTER, 2d SERIES
jected the bill passed by the other. Finally,
shortly before the December 31, 1974 recess,
a compromise bill was adopted, which in-
cluded the provision in section 552a(bX2),
permitting disclosure, without the consent
of an individual named therein, of records
the disclosure of which was required by the
Freedom of Information Act. Id. at 502.
An equivalent provision had been included
in the original H.R. 16373, but was deleted
by the House Committee on Government
Operations. Id. at 242-43, 279-80. Al-
though the language of section 552a(b)(2)
had not been a part of S. 3418, the Senate
Bill as reported from the Committee on
Government Operations did provide in sec-
tion 205(b) that "[n]othing in this act shall
be construed to permit the withholding of
any personal information which is otherwise
required to be disclosed by law or any regu-
lation thereunder." Id. at 143. The inter-
mediate version of H.R. 16373 as approved
by the House Committee arguably would
have applied Privacy Act exemptions to all
Freedom of Information Act requests, while
S. 3418 would have confined those exemp-
tions to Privacy Act obligations. The com-
promise bill, restoring the original language
of H.R. 16373, was obviously intended to
adopt the policy embodied in section 205(b)
of S. 3418, which applied to both first-party
and third-party requests. The report ac-
companying the compromise bill notes:
The Compromise amendment would add
an additional condition of disclosure to
the House bill which prohibits disclosure
without written request of an individual
unless disclosure of the record would be
pursuant to Section 552 of the Freedom
of Information Act. This compromise is
designed to preserve the status quo as
interpreted by the courts regarding the
disclosure of personal information under
that section.
Source Book, supra, at 861. Thus, as noted
by the Greentree court, see Green tree, su-
pra, 674 F.2d at 81, the enacted version of
the Privacy Act reflects the successful ef-
fort to keep separate the exemptions in the
Privacy Act and the Freedom of Informa-
tion Act.
of records (or a portion thereof) from
access by individuals in accordance with
the general or specific exemptions (sub-
section (j) or (k)); or (2) deny a request
for access to records compiled in reasona-
ble anticipation of a civil action or pro-
ceeding or archival records (subsection
(d)(5) or (1)). -In a few instances the
exemption from disclosure under the Pri-
vacy Act may be interpreted to be broad-
er than the Freedom of Information Act
(5 U.S.C. 552). In such instances the
Privacy Act should not be used to deny
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[4] We have searched the legislative his-
tory of all versions of S. 3418, H.R. 16373,
and the compromise bill, which was enacted,
and we have found nothing which suggests
that Congress intended Privacy Act section
552a(d) to be a partial repeal of the Free-
dom of Information Act by making it the
sole means of access for first-party infor-
mation. The construction of the Privacy
Act for which the Department of Justice
contends depends, ultimately and complete-
ly, on clear evidence of such an intention.
In no other manner can the "this section"
language of section 552a(j) and (k) be
stretched so as to apply to Freedom of
Information Act requests made by first par-
ties. Thus the legislative history of the
Privacy Act utterly fails to overcome the
presumption against repeals by implication.
[5] Nor can the Department of Justice
rely on any supposed expertise with respect
to the statute it is charged with administer-
ing. In the first place, as the Greentree
court points out, that department's inter-
pretation of the statute has vacillated.
Green tree, supra, 674 F.2d at 84-85. More-
over, the Justice Department is not the only
federal agency with obligations under the
Privacy Act. Under section 6 of the Priva-
cy Act, the Office of Management and
Budget is charged with the responsibility
for developing guidelines and regulations
for the Act's implementation by govern-
ment agencies. Privacy Act of 1974, Pub.L.
No. 93-579, ? 6, 88 Stat. 1896, 1909. Since
1975 those guidelines have provided:
In some instances under the Privacy
Act an agency may (1) exempt a system
access
which
quired
under
It i.
treat i
tion p4
fy eit
(but i
tablis)
the re
and i
FOIA
neith(
shout,
shoul.
agent
proce
eral
tion
betw
the t
cess
Th
be b
cons.
acce
selvt
enac
40 Fe
conten
vacy I
with
ment
Act's i
with t
Depart
to the
the 0
now
lines.
extar
temp
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gress
& n.
W'
tour!
was
recoi
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PROVENZANO v. UNITED STATES DEPT. OF JUSTICE
Cite as 717 F.2d 799 (1983)
access to information about an individual
which would otherwise have been re-
quired to be disclosed to that individual
under the Freedom of Information Act.
It is our view that agencies should
treat requests by individuals for informa-
tion pertaining to themselves which speci-
fy either the FOIA or the Privacy Act
(but not both) under the procedures es-
tablished pursuant to the Act specified in
the request. When the request specifies,
and may be processed under, both the
FOIA and the Privacy Act, or specifies
neither Act, Privacy Act procedures
should be employed. The individual
should be advised, however, that the
agency has elected to use Privacy Act
procedures, of the existence and the gen-
eral effect of the Freedom of Informa-
tion Act, and of the differences, if any,
between the agency's procedures under
the two Acts (e.g., fees, time limits, ac-
cess and appeals).
The net effect of this approach should
be to assure the individuals do not, as a
consequence of the Privacy Act, have less
access to information pertaining to them-
selves than that they had prior to its
enactment.
40 Fed.Reg. . 56742-43 (1975). Thus the
contemporaneous interpretation of the Pri-
vacy Act by an agency charged by Congress
with specific responsibility for the develop-
ment of guidelines and regulations for the
Act's implementation is entirely consistent
with the interpretation which the Justice
Department formerly embraced. According
to the Justice Department (see Brief at 35),
the Office of Management and Budget is
now considering a revision of those guide-
lines. That does not alter the value of the
extant guidelines as a reflection of the con-
temporaneous understanding of the agency
as to the intention of the ninety-third Con-
gress. See Greentree, supra, 674 F.2d 74, 85
& n. 28.
We conclude, therefore, that the trial
court erred in holding that the Privacy Act
was the sole means of access for individual
records and that the systems of records
717 F.2d-19
799
exemption of 5 U.S.C. ? 552a(j)(2) (1982)
applied to an individual Freedom of Infor-
mation Act request. Thus the Vaughn in-
dex should have been disclosed to the re-
questers, and the procedures mandated by
Ferri v. Bell, 645 F.2d 1213, 1220 (3d Cir.
1981), followed.
IV.
The summary judgment in favor of the
Department of Justice will be reversed, and
the case remanded for further proceedings
consistent with this opinion.
S KEY NUMBER SYSTEM
PROVENZANO, Anthony, Appellant,
UNITED STATES DEPARTMENT OF
JUSTICE, William French Smith, Attor-
ney General of the United States, and
William H. Webster, Director of the
Federal Bureau of Investigation. .
United States Court of Appeals,
Third Circuit.
Argued Aug. 4, 1983.
Decided Sept. 15, 1983.
On Appeal from the United States Dis-
trict Court for the District of New Jersey-
Newark; Clarkson S. Fisher, Judge.
Harvey Weissbard, West Orange, N.J.,
for appellant.
J. Paul McGrath, Asst. Atty. Gen., Wash-
ington, D.C., W. Hunt Dumont, U.S. Atty.,
Newark, N.J., Leonard Schaitman, Douglas
Letter (argued), Attys., Civ. Div., Dept. of
Justice, Washington, D.C., for appellees.
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214
Clarence KELLY, Edward Levi, The Fed-
eral Bureau of Investigation, and The
Department of Justice, Defendants-Ap-
pellees.
599 FEDERAL REPORTER, 2d SERIES
Louis (Studs) TERKEL,
Plaintiff-Appellant,
No. 78-1313.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 5, 1978.
Decided May 25, 1979.
Rehearing Denied June 29, 1979.
Action was brought to compel disclo-
sure, under Freedom of Information Act, of
material withheld by Federal Bureau of
Investigation. The United States District
Court for the Northern District of Illinois,
Eastern Division, Frank J. McGarr, J.,
granted government's motion for summary
judgment, and plaintiff appealed. The
Court of Appeals, Bauer, Circuit Judge,
held that: (1) affidavits furnished by FBI
contained a sufficient description to estab-
lish that the contested information sought
fell within Freedom of Information Act ex-
emption concerning information properly
classified under executive order in the in-
terest of national defense or foreign policy;
(2) affidavits furnished by FBI provided
adequate information to establish that spe-
cific and identifiable portions of challenged
documents fell within Freedom of Informa-
tion Act and Privacy Act exemptions con-
cerning investigatory records compiled for
law enforcement purposes or investigatory
material compiled solely for purpose of de-
termining suitability, eligibility, or qualifi-
cations for federal civilian employment, and
(3) where in at least three instances FBI
withheld entire pages of investigative re-
ports on grounds that pages would disclose
names of investigating agents or the identi-
ties of confidential sources, but, in each of
cases, it was not apparent from agency's
affidavits why the pages could not be re-
leased after the identifying data had been
deleted, such pages were appropriately sub-
ject to an in camera review by district
court, under Freedom of Information Act.
Remanded for limited purpose; other-
wise affirmed.
1. Records M-55
Statutes e-223.1
The Freedom of Information Act and
the Privacy Act must be read together and
the Freedom of Information Act cannot
compel the disclosure of information that
the Privacy Act clearly contemplates to be
exempt. 5 U.S.C.A. ?? 552, 552a(kX5).
2. Record *-65
Affidavits furnished by Federal Bureau
of Investigation contained a sufficient de-
scription to establish that the contested in-
formation sought fell within Freedom of
Information Act exemption concerning in-
formation properly classified under execu-
tive order in the interest of national de-
fense or foreign policy. 5 U.S.C.A.
? 552(b)(1).
3. Records *-65
Affidavits furnished by Federal Bureau
of Investigation provided adequate infor-
mation to establish that specific and identi-
fiable portions of challenged documents fell
within Freedom of Information Act and
Privacy Act exemptions concerning investi-
gatory records compiled for law enforce-
ment purposes or investigatory material
compiled solely for purpose of determining
.suitability, eligibility, or qualifications for
federal civilian employment. 5 U.S.C.A.
?? 552(bX7)(D), 552a, 552a(k)(5).
4. Records e- 66
Where in at least three instances Fed-
eral Bureau of Investigation withheld en-
tire pages of investigative reports on
grounds that pages would disclose names of
investigating agents or the identities of
confidential sources, but, in each of cases, it
was not apparent from agency's affidavits
why the pages could not be released after
the identifying data had been deleted, such
pages were appropriately subject to an in
camera re
Freedom o
?? 552(aX-
(5).
Lance H
appellant.
Thomas
J. Curiel,
defendant:
Before '
cuit Judge
BAUER
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 Approved For Release 2008/12/08: CIA-RDP89B00236R000200220002-6
0
TERKEL v. KELLY
Cite as 599 F.2d 214 (1979)
camera review by district court, under
Freedom of Information Act. 5 U.S.C.A.
?? 552(a)(4XB), (bX2), (b)(7)(C-E), 552a(k)
(5).
Lance Haddix, Chicago, Ill., for plaintiff-
appellant.
Thomas P. Sullivan, U. S. Atty., Antonio
J. Curiel, Asst. U. S. Atty., Chicago, Ill., for
defendants-appellees.
Before TONE, LAY,' and BAUER, Cir-
cuit Judges.
BAUER, Circuit Judge.
This is an appeal arising under the Free-
dom of Information Act, 5 U.S.C. ? 552.
The appellant Louis ("Studs") Terkel re-
quested the Federal Bureau of Investiga-
tion to provide him with "a copy of all files
in the FBI indexed or maintained under my
name and all documents containing my
name." The FBI released 146 pages of
documents,' but withheld some material un-
der provisions of the Act permitting non-
disclosure. Terkel subsequently instituted
an action in the district court to compel
disclosure of the withheld material. After
reviewing the affidavits and attachments,
the district court granted the government's
motion for summary judgment. On appeal,
Terkel argues that the lower court erred in
failing to conduct an in camera examination
of the challenged material.
1.
A brief outline of the relevant statutory
framework will provide a useful point of
departure. In 1974 Congress amended the
FOIA provisions that governed the role of a
reviewing court in considering claims of
exemptions under the Act. The 1974 revi-
sion provided that
? The Hon. Donald P. Lay, Judge of the United
States Court of Appeals for the Eighth Circuit,
is sitting by designation.
1. According to agency affidavits, the FBI had
maintained two separate files on the appellant.
One was compiled as a background investiga-
215
"the court shall determine the matter de
novo, and may examine the contents of
such agency records in camera to deter-
mine whether such records or any part
thereof shall be withheld under any of
the exemptions set forth in subsection (b)
of this section, and the burden is on the
agency to sustain its action." 5 U.S.C.
? 552(a)(4XB) (1974).
The Conference Report accompanying the
amendments explained that "[w]hile in
camera examination need not be automatic,
in many situations it will plainly be neces-
sary and appropriate." S.Rep.No.93-1200,
93d Cong., 2d Sess. 9 (1974), U.S.Code Cong.
& Admin.News, 1974, pp. 6267, 6287.
In the case at hand, the FBI has relied on
several exemptions under the FOIA to
withhold various documents or portions
thereof from the appellant. One of the
claimed exemptions is ? 552(b)(1), which, as
amended, exempts matters that are "(A)
specifically authorized under criteria estab-
lished by an Executive order to be kept
secret in the interest of national defense or
foreign policy and (B) are in fact properly
classified pursuant to such Executive or-
der." On the role of the reviewing court in
dealing with this exemption, the Confer-
ence Committee Report noted that
"the Executive departments responsible
for national defense and foreign policy
matters have unique insights into what
adverse effects might occur as a result of
public disclosure of a particular classified
record. Accordingly, the conferees ex-
pect that Federal courts, in making de
novo determinations in Section 552(b)(1)
cases under the Freedom of Information
law, will accord substantial weight to an
agency's affidavit concerning the details
of the classified status of the disputed
record." S.Rep.No.93-1200, 93d Cong., 2d
Sess. 12 (1974) U.S.Code Cong. & Admin.
News 1974, p. 6290 (emphasis added).
tion in connection with the appellant's applica-
tion for employment with the FBI in 1934. The
other was compiled in- connection with an in-
vestigation of the appellant's "activities in sup-
port of racial equality and possible Communist
causes" from 1945 to 1961.
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 Hpprovea r-or Keiease zuuoi-iuuo : uiH-KUruytsuuzstDKuuuzuuzzuuuz-tD
216
599 FEDERAL REPORTER, 2d SERIES
In withholding other portions of the docu-
ments, the FBI relied on subparagraphs (C),
(D) and (E) of ? 552(b)(7). As amended,
these subparagraphs provide that investiga-
tory records compiled for law enforcement
purposes may be withheld if the production
of such records would
"(C) constitute an unwarranted invasion
of personal privacy, (D) disclose the iden-
tity of a confidential source and, in the
case of a record compiled by a criminal
law enforcement authority in the course
of a criminal investigation, or by an agen-
cy conducting a lawful national security
intelligence investigation, confidential in-
formation furnished only by the confiden-
tial source, (E) disclose investigative tech-
niques and procedures . . "
According to Senator Hart, who introduced
the amended version of Exemption 7 on the
Senate floor, the purpose of subparagraph
(C) is to "protect the privacy of any person
who is mentioned in the requested files, and
not only the person who is the object of the
investigation." Freedom of Information
Act and Amendments of 1974 (P.L. 93-502)
Source Book, Legislative History, Texts and
Other Documents, Joint Committee Print,
94th Cong., 1st Sess. 334 (hereinafter cited
as Sourcebook). Similarly, the purpose of
subparagraph (D) is to protect
"the identity of a person other than a
paid informer . . . if the person
provided information under an express
assurance of confidentiality or in circum-
stances from which such an assurance
could reasonably be inferred. Under this
category, in every case where the investi-
gatory records sought were compiled for
law enforcement purposes-either civil or
criminal in nature-the agency can with-
hold the names, addresses, and other in-
formation that would reveal the identity
of a confidential source who furnished
the information." Conf.Rep.No. 93-1380,
93d Cong., 2d Sess.; Sourcebook, p. 230.
It is noteworthy that under subparagraph
"The agency not only can withhold in-
formation which would disclose the iden-
tity of a confidential source but also can
provide blanket protection for any infor-
mation supplied by a confidential source
[A]il the FBI has to do is to
state the information was furnished by a
confidential source and it is exempt."
Sourcebook, p. 332 (emphasis added).
It is also significant that courts have con-
strued this provision to apply to commercial
institutions and non-federal law enforce-
ment agencies that supply confidential in-
formation as well as to individuals. See
Nix v. United States, 572 F.2d 998, 1005
(4th Cir. 1978); Church of Scientology of
California v. United States, 410 F.Supp.
1297, 1302-03 (C.D.Cal.1976).
[1] Finally, the FBI has invoked
? 552a(kX5) of the Privacy Act in withhold-
ing certain documents concerning the appel-
lant's application for employment with the
FBI. This provision states:
(k) The head of any agency may promul-
gate rules . . . to exempt any sys-
tem of records . . . if the system of
records is-
(5) investigatory material compiled
solely for the purpose of determining
suitability, eligibility, or qualifications
for Federal civilian employment, . .
but only to the extent that the disclo-
sure of such material would reveal the
identity of a source who furnished in-
formation to the Government under an
express promise that the identity of the
source would be held in confidence, or,
prior to the effective date of this sec-
tion, under an implied promise that the
identity of the source would be held in
confidence; . . . . 0 9
Although the Freedom of Information Act
does not contain a comparable exemption,
we agree with the lower court that the two
statutes must be read together, and that
(D) the agency can withhold not only the the Freedom of Information Act cannot
identity of the source but also the "confi- compel the disclosure of information that
dential information" that he supplies. As the Privacy Act clearly contemplates to be
Senator Hart explained: exempt.
As w,
provides
clear frc
section
inspxectit
Wcicsm:
184 U.S.
(197).
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