FOIA Update: OIP Guidance: The Privacy Act and FOIA Exemption 3

OIP Guidance

Perhaps one of the most controversial and certainly one of the most difficult issues to arise under the Freedom of Information Act in recent years is whether the Privacy Act of 1974, 5 U.S.C. § 552a, can serve as a nondisclosure statute under Exemption 3 of the FOIA.

The Privacy Act authorizes an individual to obtain access to those federal records maintained and retrievable under the individual's name or personal identifier, subject to certain broad, system-wide exemptions. See, e.g., Privacy Act Exemption (j)(2), 5 U.S.C. § 552a(j)(2) (criminal law enforcement file system exemption). If such a systemic exemption in the Privacy Act is regarded as an Exemption 3 statute, records exempt from disclosure to first-party requesters under the Privacy Act are also categorically exempt to them under the FOIA. If it is not, then requesters would be able to obtain information on themselves under the FOIA despite the fact that such information is exempt from disclosure to them under the Privacy Act.

Over the past several years, the federal courts, as well as the Department of Justice, have struggled with this difficult issue. Initially, the Department of Justice did not advocate the Privacy Act as an Exemption 3 statute. However, during 1979-1980, three circuit courts of appeals indicated with varying degrees of authoritativeness that the Privacy Act should be regarded as such in the context of a first-person request. See Duffin v. Carlson, 636 F.2d 709, 711 (D.C. Cir. 1980) (dictum); Painter v. Federal Bureau of Investigation, 615 F.2d 689, 690-91 (5th Cir. 1980); Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979), cert. denied sub nom. Terkel v. Webster, 444 U.S. 1013 (1980). Stated another way, this position is that the Privacy Act is intended to be the exclusive vehicle for first-person access to federal records retrievable under an individual's name. Of course, any information not exempt under the Privacy Act would not be affected by this position.

In 1981, in Greentree v. United States Customs Service, 515 F. Supp. 1145, 1147-49 (D.D.C. 1981), District Court Judge John Lewis Smith, Jr., of the United States District Court for the District of Columbia, ruled squarely that Privacy Act Exemption (j)(2) triggers FOIA Exemption 3, even though that position was not advocated by the Department of Justice. After a thorough reexamination of the issue, the Department of Justice reversed its position on the Privacy Act/Exemption 3 defense, observing that its adoption could yield considerable administrative savings to agencies maintaining criminal law enforcement records, and it defended Judge Smith's decision on appeal.

However, last year the U.S. Court of Appeals for the District of Columbia Circuit reversed that decision, holding that the Privacy Act does not qualify as an Exemption 3 statute, Greentree v. United States Customs Service, 674 F.2d 74, 89 (D.C. Cir. 1982). Rather than seek further review of the D.C. Circuit's decision in Greentree, the Solicitor General instead determined to await further development of the issue in the eleven other judicial circuits. See FOIA Update, June 1982, at 8.

Indeed, the law on this issue is now developing well in other circuits, where every court to rule on the issue has concluded, contrary to the D.C. Circuit's decision in Greentree, that the Privacy Act is an Exemption 3 statute. See Porter v. United States Department of Justice, 551 F. Supp. 595, 597-98 (E.D. Pa. 1982) (appeal docketed, No. 82-1822, 3d Cir.); Provenzano v. United States Department of Justice, 3 GDS ¶ 83,125 at 83,731 (D.N.J. 1982) (appeal docketed, No. 82-5681, 3d Cir.); Wentz v. Drug Enforcement Administration/Shapiro v. Drug Enforcement Administration, 3 GDS ¶ 83,122 at 83,727 (W.D. Wis. 1982) (consolidated) (appeals docketed, Nos. 82-2818/82-2819, 7th Cir.); Anderson v. Huff, 3 GDS ¶ 83,124 at 83,729 (D. Minn. 1982); Heinzl v. Immigration & Naturalization Service, 3 GDS ¶ 83,121 at 83,725 (N.D. Cal. 1981). A major point in the development of this case law outside of the D.C. Circuit will be the first post-Greentree appellate court consideration of the issue, probably by the Third Circuit in the Provenzano or Porter cases, which are expected to be argued within the next few months.

At this time, however, the law of the D.C. Circuit, through its decision in Greentree, is contrary to the Department of Justice's position that the Privacy Act can serve as an Exemption 3 statute. That remains particularly significant because the FOIA's statutory language permits any dissatisfied FOIA requester to challenge agency withholding in the United States District Court for the District of Columbia. See 5 U.S.C. § 552(a)(4)(B). Consequently, any application of the Privacy Act/Exemption 3 position by an agency at the administrative level would run the unacceptable risk that the requester would file suit in the United States District Court for the District of Columbia, which would inescapably result in a judicial finding of improper withholding, not to mention vulnerability under the FOIA's attorney's fees and administrative sanctions provisions, 5 U.S.C. § 552(a)(4)(E)-(F).

Therefore, while the Department of Justice adheres to the position that the Privacy Act qualifies as an Exemption 3 statute in the context of a first-person access request, agencies should not apply this new position at the administrative level prior to the commencement of a lawsuit. Once a suit is brought within a judicial circuit other than the D.C. Circuit, though, the Department of Justice will be free to advocate this position vigorously. In time, there will doubtless be a definitive resolution of this complex issue, until such time, however, agencies must take care to apply the Privacy Act as an Exemption 3 statute only as set forth above.

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