Vol. V, No. 2
The Privacy Act as an Exemption Three Statute
By Douglas N. Letter
Anthony Provenzano, a New Jersey organized crime figure, has filed Freedom of Information Act requests with the FBI and the Justice Department's Criminal Division seeking access to the voluminous files those agencies have compiled concerning him. Provenzano is seeking these records through the FOIA even though they are all exempt from access under the Privacy Act of 1974.
The issue raised by Provenzano's case, as well as by other cases throughout the nation, is whether an individual information requester can attempt to gain access to his federal agency file by using the FOIA if that access is barred by Privacy Act disclosure exemptions; or, in technical terms, is Privacy Act Exemption (j)(2), 5 U.S.C. § 552(j)(2), a nondisclosure statute within the meaning of FOIA Exemption 3, 5 U.S.C. § 552(b)(3)?
Four courts of appeals have ruled on this issue thus far and they have split evenly. Compare Shapiro v. DEA, 721 F.2d 215 (7th Cir. 1983), cert. granted, 104 S. Ct. 1706 (1984), and Painter v. FBI, 615 F.2d 689 (5th Ci. 1980), with Provenzano v. United States Department of Justice, 717 F.2d 799 (3d Cir.), reh'g en banc denied, 722 F.2d 36 (3d Cir. 1983), cert. granted, 104 S. Ct. 1706 (1984), and Greentree v. United States Customs Service, 674 F.2d 74 (D.C. Cir. 1982). See also Porter v. United States Department of Justice, 717 F.2d 787 (3d Cir. 1983) (companion case to Provenzano); Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979), cert. denied, 444 U.S. 1013 (1980) (predecessor case to Shapiro). The Supreme Court has now agreed to consider Provenzano's case, and a definitive resolution of this controversial issue is expected within the next year.
The issue of the proper relationship between the FOIA and the Privacy Act arises because the latter statute has access exemptions that are in certain ways broader than the comparable FOIA ones. Specifically, Privacy Act Exemption (j)(2) authorizes heads of criminal justice agencies to promulgate regulations denying access to most or all of their law enforcement files systems of records. This means that when a person requests his own law enforcement records under the Privacy Act, a criminal law enforcement agency can deny the request readily, without further consideration, with respect to records that are maintained within an exempt system. On the other hand, under FOIA. Exemption 7, 5 U.S.C. § 552(b)(7), an agency can withhold investigative material in certain specified categories, but the agency generally must justify invocation of a FOIA exemption on a line-by-line basis. Therefore, for criminal law enforcement records, the Privacy Act provides broader protection, with a much lesser administrative burden, than does the FOIA.
FOIA Exemption 3 is an unusual exemption that in essence reads into the FOIA other nondisclosure statutes. To qualify, these statutes must either: (1) provide absolutely for nondisclosure; or (2) allow an agency discretion on whether to release, but only where the statute sets out particular criteria or describes with particularity the types of materials the agency has discretion to withhold. See 5 U.S.C. § 552(b)(3), as amended. If the Privacy Act's exemptions are not regarded as Exemption 3 statutes, then they are reduced to the same scope as the other FOIA exemptions because a requester can simply avoid those Privacy Act exemptions by filing a FOIA request.
The Justice Department is arguing (consistent with the position it has taken since 1981) that Privacy Act Exemption (j)(2) is a FOIA Exemption 3 statute because it sets out with sufficient specificity the types of law enforcement matters that criminal justice agencies have authority to exempt from access. Thus, even though Exemption (j)(2) leaves discretion with agency heads, a plain language analysis of the relevant statutory provisions indicates that Exemption (j)(2) fits the "particular matters" criterion for an Exemption 3 statute.
The legislative history of Exemption (j)(2) supports this plain language analysis. That history reveals that both Houses of Congress and several sponsors of the Privacy Act were concerned that subjects of law enforcement records not be able to gain access to those sensitive records. In addition, the legislative history shows quite clearly that Congress was aware that it was creating Privacy Act exemptions distinctly broader than existing FOIA exemptions. In light of this fact, if Exemption (j)(2) is not an Exemption 3 statute, a puzzling question arises: Why would Congress go out of its way to create Privacy Act access exemptions broader than the FOIA ones if a requester could avoid those Privacy Act exemptions through use of the FOIA? Thus, the Justice Department has argued that there is a basic illogic to the contention that Exemption (j)(2) is not an Exemption 3 statute.
If Exemption (j)(2) is regarded as an Exemption 3 statute, however, the FOIA's exemptions nonetheless retain their full meaning for a significant number of requests. The Privacy Act covers only records about individuals located through use of an individual's name or other personal identifier. Accordingly, the Privacy Act governs only a fraction of the government records that are covered by the FOIA, which applies to almost all federal agency records. In addition, the Privacy Act access provision, 5 U.S.C. § 552a(d), and its exemptions apply solely to first-party requests (requests by an individual for his own records). Consequently, regardless of the outcome of the issue raised by the Provenzano case, the FOIA's exemptions are the only ones applicable for all third-party requests (where a requester seeks records pertaining to another individual), and for all requests for non-Privacy Act material.
Although both the Fifth and Seventh Circuit Courts of Appeals have endorsed the Justice Department's argument regarding how these two statutes interrelate, the District of Columbia and Third Circuit Courts of Appeals have rejected it. The latter courts have read the statutes as completely separate, so that the Privacy Act exemptions affect disclosure only under that Act, but have no impact on FOIA requests for the same material. These two courts have relied on three bases to reach this result.
First, both courts have pointed out that Exemption (j)(2) states that it authorizes agencies to exempt certain records from specified requirements "of this section," which refers to the Privacy Act. These courts have therefore concluded that the Privacy Act exemptions affect access only through that Act and not the FOIA. The problem with that reasoning is that it assumes that Congress had no purpose in enacting Privacy Act exemptions broader than the FOIA ones, because such reasoning allows requesters to sidestep the Privacy Act's exemptions.
Second, the D.C. and Third Circuits focused on Subsection (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2). Section (b) of the Privacy Act states a general nondisclosure rule, and it then provides a number of exceptions to that rule. Subsection (b)(2) allows disclosure when the FOIA authorizes release. However, in relying on this subsection, these courts appear to have overlooked the introductory language of Section (b), which states that the section applies except when an individual has requested his own file or gives his consent to release. The section accordingly applies only to third-party requests, while Provenzano has made a first-party request for his own records. Therefore, Subsection (b)(2) is simply not pertinent. Indeed, if these courts' rationale on this point is accepted, it raises again the question noted above: why would Congress undo in Subsection (b)(2) what it simultaneously did by enacting broad Privacy Act access exemptions?
The third reason given by the D.C. and Third Circuits is the most troubling in an academic discussion, and it has come to be referred to as the "third party anomaly" theory. This theory posits that, because third-party requests are covered only by the narrower FOIA exemptions, a third-party requester might be able to obtain more information about the subject of a file than would the subject himself, because the subject's request is governed by the broader Privacy Act exemptions. Thus, according to this theory, an "anomaly" is created by regarding the Privacy Act as an Exemption 3 statute, because a stranger might gain greater access to another individual's file than would the individual himself.
This "third party anomaly" theory is mostly only a theory. The FOIA's privacy exemptions, 5 U.S.C. § 552(b)(6) and (7)(C), would in the vast majority of cases prevent access by one person to another person's criminal justice files. Therefore, there would be no greater third-party FOIA access than first-party Privacy Act access in such cases. In addition, there is simply no evidence that Congress contemplated such an "anomaly" when it passed the Privacy Act; this theory thus tells us nothing about the crucial intent of Congress when the Privacy Act was enacted.
As noted above, at the Justice Department's request, the Supreme Court has agreed to hear the Provenzano case and to rule on the issue of the proper relationship between these two important government information access statutes. The Court will simultaneously rule on the same issue in the context of a request by two former prisoners seeking their DEA files in the Shapiro case. A Supreme Court ruling in the government's favor would be a significant victory.
Indeed, if Exemption (j)(2) is finally determined to be an Exemption 3 statute, criminal justice agencies should be able to conserve valuable resources when processing the thousands of first-party information requests received annually from federal prisoners such as Provenzano.
Mr. Letter, an attorney on the Appellate Staff of the Department of Justice's Civil Division, argued the government's position on this issue before the D.C. Circuit, Third Circuit and Seventh Circuit Courts of Appeals.
Editor's Note: Pending the Supreme Court's decision in the Provenzano case, this nondisclosure position should not be invoked at the administrative level. See FOIA Update, Spring 1983, at 3. See also 49 Fed. Reg. 12338 (March 29, 1984) (Office of Management and Budget Privacy Act Guideline).
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