DRAFT DOJ REPORT ON H.R. 4696 A BILL TO CLARIFY THE RELATIONSHIP OF THE PRIVACY ACT OF 1974 TO THE FREEDOM OF INFORMATION ACT AND FOR OTHER PURPOSES.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200180018-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 21, 2016
• Document Release Date: February 10, 2009
• Sequence Number: 18
• Publication Date: March 29, 1984
• Content Type: MEMO

Approved For Release 2009/02/10: CIA-RDP89B002236R000200180018-4 f
EXECO!!VE OFFICE OF THE PRESIDE!'
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
March 29, 1984
LEGISLATIVE REFERRAL MEMORANDUM
LEGISLATIVE LIAISON OFFICER
SEE ATTACHED DISTRIBUTION
SUBJECT:
Draft DOJ report on H.R. 4696, a bill "To clarify the
relationship of the Privacy Act of 1974 to the Freedom of
Information Act, and for other purposes."
The office of management and Budget requests.the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than.
COB Wednesday, April 4, 1984.
Direct your. questions to Branden Blum (395-3x02), the legislative
attorney in this office.
L L ~( )4 O ca,,. 'I ~~' dL / 01.L ,
Jame
Assibtant Director for
Legislative Reference
R. Veeder F. Fielding M. Uhlmann
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
cc: K. Wilson C... Wirtz
A. Donahue
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
? ?
DISTRIBUTION
Department of Education
Department of Housing and Urban Development
Federal Emergency Management Agency
General Services Administration
National Aeronautics and Space Administration
Administrative Conference of the United States
Central Intelligence Agency
National Security Council
Office of Personnel Management
Department of Health and Human Services
Department of State
Department of the Treasury
National Labor Relations Board
- Department of Energy
Environmental Protection Agency
Department of Agriculture
Department of Defense
Securities and Exchange Commission
Small Business Administration
Department of the Interior
Department of Transportation
Department of Commerce
Veterans Administration
'Equal Employment Opportunity Commission
U.S. Postal Service
Tennessee Valley Authority
Department of Labor
Federal Communications Commission
Federal Trade Commission
Nuclear Regulatory Commission
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
?;Y Office of Le1js1aflAffairs
Honorable Jack Brooks
Chairman
Committee on Government Operations
United States House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your letter requesting the views of
the Department of Justice on H.R. 4696. This bill would amend
the Privacy Act of 1974, 5 U.S.C. S 552a, to provide that the
exemptions to access contained in that Act could not be used as
a basis for withholding records that would otherwise be acces-
sible to requesters under the Freedom of Information Act
("FOIA"), 5 U.S.C. ? 552. This bill relates to an issue that
is currently pending in the courts, including the Supreme
Court. For the following reasons, the Department of Justice
strongly recommends against enactment of this proposed legisla-
tion.
The purpose of this bill is essentially to reverse the
Department's present' litigation position on the relationship
between the Privacy Act and the FOIA. Although many courts
have adopted the position that the Privacy Act's exemptions
meet the requirements of Exemption 3 of the FOIA, 5 U.S.C.
? 552(b)(3) */ this bill would preclude agencies from relying
on the Privacy Act's exemptions as a basis for withholding
that
Exemption 3 of the FOIA, 5 U.S.C. ?i 552 (b) (3) , provides
an agency need not disclose matters that are--
"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 with-
holding or refers to particular types of matters to be
withheld."
(Footnote Continued)
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
requested information under the FOIA. The Department's posi-
tion that the Privacy Act should be considered an Exemption 3
statute under the FOIA is perhaps best explained in the Solici-
tor General's petition for certiorari in United States Dep't of
Justice v. Provenzano, No. 83-1045 (filed Dec. 23, 1983), a
copy of which is enclosed for your convenience.
Briefly, the factors that led the Department of Justice to.
change its policy by adopting the position that the Privacy Act
qualifies under Exemption 3 of the FOIA as a nondisclosure
statute are as follows. The Department reconsidered its
previous position in late 1981, following the decision in
Greentree v. United States Customs Service, 515 F. Supp. 1145,
1147-49 (D.D.C. 1981), in which District Judge John Lewis
Smith, Jr. concluded, even though neither the plaintiff nor the
Department of Justice had advocated the position, that the
Privacy Act does qualify as an Exemption 3 statute.
When the plaintiff appealed., it `became necessary for the
Department to determine whether to defend Judge Smith's ruling
before the Court of Appeals for the District of Columbia
Circuit. In making this determination, the. Department took
into account that both the Fifth and Seventh Circuits had
previously held, again sua sponte, that the FOIA cannot compel
(Footnote Continued)
The Privacy Act requires, in 5 U.S.C. ? 552a(d), that an agency
upon request must disclose information to individuals who are
the subject of information contained in a system of records,
but contains several exceptions from this disclosure require-
ment. For example, ? 552a(j)(2) specifically authorizes an
agency to exempt a system of records from disclosure if it is--
"maintained by an agency or component thereof which
performs'as its principal function any activity pertaining
to the enforcement of criminal laws, including police
efforts to prevent, control, or reduce crime or to appre-
hend criminals, and the activities of prosecutors, courts,
correctional, probation, pardon, or parole authorities,
and which consists of (A) information compiled for the
purpose of identifying individual-criminal offenders 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) information compiled for
the purpose of a criminal investigation, including reports
of informants and investigators, and associated with an
identifiable individual; or (C) reports identifiable to an
individual compiled at any stage of the process of en-
forcement of the criminal laws from arrest or indictment
through release from supervision."
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
0 - 3 - ?
disclosure of information that has been properly exempted under
the Privacy Act. See Painter v. FBI, 615 F.2d 689, 690-91 (5th
Cir. 1980); Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979),
cert. denied, 444 U.S. 1013 (1980). Indeed, the D.C. Circuit
itself had suggested that the two acts should be read in such a
way." See Duffin v. Carlson, 636 F.2d 709, 711 (D.C. Cir. 19.80)
(dictum).
Only after reviewing these decisions, carefully reexam-
ining the legislative history of the Privacy Act, and consult-
ing with other interested agencies did the Department decide to
change its policy and to defend Judge Smith's ruling on appeal.
Although this argument was unsuccessful in the D.C. Circuit,
Greentree v. United States Customs Service, 674 F.2d 74 (D.C.
Cir. 1982), a number of district courts in other circuits have
endorsed the Department's position. See, e. g., Martin v. FBI,
Civ. No. 82-C-123 (N.D. Ill. Sept. 30, 19i3); Rachel v. United
States Dep't of Justice, Civ. No. 83-C-0434 (N.D. Iii. Aug. 1,
1983); Turner v. Ralston, 567 F. Sup?. 606 (W.D. Mo. 1983);
Anderson v. Huff, 3 Gov't Discl. Serv. 11 (33,124 (D. Minn. June
8, 1982); and Heinzl v. INS, 3 Gov't Discl. Serv. Q 83,121
(N.D. Cal. 1981).
More recently, the courts of appeals in the Third Circuit
and the Seventh Circuit have issued full., opinions addressing
this issue, and have reached squarely conflicting decisions.
The Third Circuit's opinion in Porter v. United States Dep't of
Justice, 717 F.2d 787 (3d Cir. 1983), adopted the rationale of
the D.C. Circuit in Greentree and ruled against the Depart-
ment's position. (A companion case, Provenzano v. United
States Dep't of Justice, 717 F.2d 799 (3d Cir. 1983 , was
decided similarly in a brief per cur arn~ opinion relying on
Porter.) By contrast, the Seventh Circuit ruled squarely in
support of the Department's position in Shapiro v. DEA, 721
F.2d 215 (7th Cir. 1983), concluding that the D.C. and Third
Circuits' decisions had failed to take into account the plain
language of the Privacy Act and FOIA Exemption 3 and, moreover,
that their decisions led inevitably to the insupportable result
that Congress intended the Privacy Act's carefully drafted
limitations on an individual's access to agency records to be
almost meaningless.
In the Provenzano case, after the Th,Lrd Circuit denied the
Department's petition for rehearing en banc over the dissent of
four of the court's ten judges, the Solicitor General filed a
petition 'for certiorari on December 23, 1983 (No. 83-1045).
The unsuccessful plaintiffs in Shapirc, have also filed a
petition for certiorari (No. 83-5878). We are hopeful that the
Supreme Court will agree to resolve the current dispute between
the circuits and, ultimately, rule in favor of the Department's
position.
We find the Seventh Circuit's reasoning in Shapiro to be
the most persuasive on the relationship between the Privacy Act
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
- 4 - ?
and the FOIA. As the Seventh Circuit concluded (721 F.2d at
222) :
"In summary, the legislative history of the
Privacy Act shows Congress' concern that individuals
not use the Act to obtain access to their own crim-
inal investigative files. It makes little sense to
conclude that Congress would enact specific nondis-
closure provisions in the Privacy Act to address this
iividuals
by allowing the broader
ethe same xemptions time
t
concern, thee at
to bypass s
access terms of the FOIA."
Thus, we take issue with the premise underlying this bill.
that the Department's present policy is an unsupported change
in the congressional policy underlying the Privacy Act. Our
present policy, by contrast, is intended to give effect to the
indications of congressional concern, by preventing individuals
from using the FOIA to circumvent land thereby nullify the
Privacy Act's carefully drawn exemptions. See, e. ., 5 U.S.C
S 552a(j) (2) (systemic exemption for criminal law enforcement
records). As explained fully in the Seventh Circuit's opinion
in Shapiro, this approach is intended to give effect to the
provisions of the Privacy Act that provide specific authority
to withhold certain types of records from individual access.
Thus, our position was reached on the basis of a number of
court decisions, some of them not even :,ought by the Depart-
ment, that have upheld this construction of the Privacy Act and
the FOIA.
The Department believes that, in addition to this histor-
ical perspective, there are valid- policy reasons to allow
agencies to use the law enforcement exemptions of the Privacy
The
Act in responding to requests for access under the FOIA.
Department and many other government agencies have long experi-
enced difficulties under the FOIA as amended in 1974, P
larly with the requirements of Exemption 7. The Federal Bureau
of Investigation and other law enforcement agencies,
ich
example, have compiled a list of over 200 instances in which
the FOIA has interfered with effective law enforcement.
use of the Privacy Act exemptions in conjunction with Exemp-
tion 3 of the FOIA will -- and, we believe was intended to --
complement the protection afforded to such sensitive law
enforcement materials under Exemption 7.
the course of extensive hearings, the Senate
During
Judiciary Committee has considered a great deal of evidence on
the shortcomings of the Ahas twice, unanimous ly fto
consideration, that Committee
make significant changes in the language of the FOIAeexemptions
responsive to the concerns presented by the
27, 1984, the Senate approved this
community. On February
legislation,. with minor amendments, without dissent.
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
?. - 5 - 49
In the House, however, there has been no consideration of
these legislative improvements. No hearings have even been
held on the subject since an initial inquiry during the summer
of 1981. Thus, the urgently needed legislEitive relief reflect-
ed in the Senate bill still has a long legislative road ahead
before it is ultimately enacted by the Congress..
Given this delay in the enactment of FOIA reform o lgisla-
tion, we believe that it would be unseemly, premature,
inappropriate for the House to act on a bill whose effect would
be to remove an exemption -- an exemption we believe was
intended by Congress information from the mst
enforcement agencies sensitive
law enforcement files of our
It should be understood that, at present, the government
has not changed its position in processing FOIA requests at the
administrative level. The Department recognizes the practical
problems, as long as the circuits remain split on this issue,
with the assertion of Privacy Act exemptions and FOIA Exemption
3 as the basis for withholding records under the FOIA. The
Department's current policy, pending resolution of this issue,
is not to rely, at the administrative level, on a claim that
the Privacy Act is an Exemption 3 statute. Thus, the effect of
the government's position on requesters is limited, until the
legal issues surrounding this position can be finally resolved.
will address one concern expressed
Before concluding, we
in-the statements accompanying the introduction of H.R. 4696 --
Those statements
the possibility of a "third-party anomaly."
asserted that a third-party FOIA requester could conceivably
receive greater access to an individual's file than could the
subject of the file himself. For the following reasons, on etdo
not believe that this possibility sheds any light
construction of the Privacy Act itself or its underlying ilegi _
s
lative history. The so-called "third--arty Y
occur only in a case in which records have been exempted from
access under the Privacy Act, but are otherwise available under
the FOIA. While such a possibility exists, the likelihood of
its occurrence is extremely
In most cases, third parties are prevented from obtaining
access to records in exempted systems from gmaanother
individual because such records are protected 5 U.S.C.
disclosure pursuant to FOIA Exemptions 6 and 7(C),
? 552(b)(6) and (7) (C) . These exemptions permit an invasion of
privacy only when the interest in. preserving privacy is out-
weighed by a countervailing public interest in disclosure.
See, e. g., Department of the Air Force v. Rose, 425 U.S. 352,
372 1976); Fund for Constitutional Government v. National
Archives & Records Service, 656 F.2d 856, 862 (D.C. Cir. 1981).
existence of Justice generally refuse
For example, the
records
even to acknowledge the
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
? - 6 - ?
pertaining to a third party unless there has been some previous
public acknowledgment of the relevant investigation
47-81 9 . See,
e. q., __q__, Rushford v. Civiletti, 485 F. Supp. 477,
1980), aff'd mem., 656 F.2d 900 (D.C. Cir. 1981). The Seventh
Circuit has specifically upheld this practice in Antonelli v.
FBI, 721 F.2d 615 (7th Cir. 1983), a case in which the FBI
refused to confirm or deny the existence of records on several
third parties in its investigative files, because even
admitting that such records exist would threaten the privacy
interests of those third parties. As a general rule, the only
information generally made available to the requester from law
enforcement files is that information already publicly
available, such as newspaper clippings or court transcripts.
Therefore, even in the rare case where an actual anomaly
might arise, the third-party requester generally would receive
very limited information: the type of information already
available to the public and.the first -party requester.
In conclusion, the Department recommends against enactment
of the proposed legislation. The Department's current position
on the relationship between the Freedom of Information Act and
the Privacy Act is supported by an analysis of the language and
history of the two statutes, as well a number of judicial
decisions. This construction best affords the protection
needed and intended for the law enforcement agencies' most
l
on wilthe
sensitive files. We are hopeful that the llate Suprecieme urt
soon grant review of the conflicting appellate
as an Exemption 3 statute under the FOIA. We note,
however, that the Department is recommending that the Privacy
Act exemptions not be applied in responding to FOIA requests at
finally L!esolved the Privacy Act
the administrative
of the until the
under Exemption 3
The Office of Management and Budget has advised this
Department that there is no objection to the submission of this
report from the standpoint of the President's program.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
Office of Legislative Affairs
Enclosure
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
.0
0
,s:~.l:v::i:c~::_c ~.~`? - - - -,'?~y:~..~~:~...~~...:i~ai:.." ~s: '%a.`a'./.~.Z~;..:..~.:-=r-?-., - - =,.r~$'~se? ...,_i.sc.Cai:`tis~.a.~
a
G
C
v
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
 ?
CONTENTS
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4
Page
Opinions below ............................... 1
Jurisdiction ................................. 2
Statutes involved ............................ 2
Statement .................................. 2
Reasons for granting the petition .............. 10
Conclusion .............................. . ... 20
Appendix A ................................. la
Appendix B ................................. 3a
Appendix C ................................. 27a
Appendix D ................................. 31a
Appendix E ................................. 41a
Appendix F ................................. 42a
Appendix G ................................. 60a
TABLE OF AUTHORITIES
Cases:
Anderson. v. Huff, No. 3-82-52 (D. Minn.
June 8, 1982) .......................... 12
Baldrige v. Shapiro, 415 U. S. 345 ......... 2
Department of Air Force v. Rose, 425 U.S.
352 ................................... 19
Department of State v. Washington Post
Co., 456 U.S. 595 ...................... 19
EPA v. Mink, 410 U. S. 73 ............... 2
FBI v. Abramson, 456 U.S. 615 .......... 16
Greentree v. U.S. Customs Service, 674
F.2d 74 ......................... 8,9,10,11,
13, 18, 19
Heinzl v. INS, No. C-80-1210 (N. D. Cal.
Dec. 18, 1981) ......................... 12
Approved For Release 2009/02/10: CIA-RDP89B00236R000200180018-4