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GREENTREE v. UNITED STATES CUSTOMS SERV.

May 28, 1981

Frank D. GREENTREE, Plaintiff,
v.
UNITED STATES CUSTOMS SERVICE, Defendant



The opinion of the court was delivered by: SMITH, JR.

MEMORANDUM

Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), and the Privacy Act, 5 U.S.C. § 552a (1976). He seeks to compel access to certain documents and material pertaining to himself, and has exhausted all applicable administrative procedures. Three documents are the subject of this dispute: a Memorandum of Information Received and two Reports of Investigation. Defendant, the United States Customs Service, has withheld all the information in accordance with specific statutory exemptions, and both sides have moved for summary judgment. In addition, plaintiff has asked for a fuller Vaughn v. Rosen index in the event its motion for summary judgment is denied, and defendant has moved for protective orders until its dispositive motion is considered.

 Under the Privacy Act, access to an individual's records may be denied if the information is in a system of records which has been declared exempt by the withholding agency. Section (j), 5 U.S.C. § 552a(j) (1976), provides, in pertinent part:

 
The head of any agency may promulgate rules, ... to exempt any system of records within the agency ... if the system of records is
 
....
 
(2) 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 apprehend 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 enforcement of the criminal laws from arrest or indictment through release from supervision.

 The documents at issue here are located in a system of records known as the Investigations Record System, which has been exempted from the access provisions of the Privacy Act, 31 C.F.R. § 1.36, at 79-80 (1980). The material is thus specifically exempted from disclosure under that act. See Exner v. Federal Bureau of Investigation, 612 F.2d 1202, 1204-05 (9th Cir. 1980). Plaintiff has not contested this.

  Plaintiff does contend, however, that any withholding of this information is a violation of FOIA. Implicit in this assertion is the assumption that material exempt from disclosure under the Privacy Act may nevertheless be required to be disclosed under FOIA. Although both parties have adopted that position, the case law is to the contrary. In Painter v. Federal Bureau of Investigation, 615 F.2d 689 (5th Cir. 1980), the Fifth Circuit specifically held that "material exempted 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) (FOIA)." 615 F.2d at 690-91 & n.3. The Seventh Circuit had earlier found that FOIA could not compel disclosure of material exempt under the Privacy Act. Terkel v. Kelly, 599 F.2d 214, 216 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 662, 62 L. Ed. 2d 642 (1980). In a similar vein, this Circuit has suggested that the exemptions for confidential information of FOIA and the Privacy Act should be interpreted coextensively. Duffin v. Carlson, 205 U.S. App. D.C. 1, 636 F.2d 709, 711 (D.C.Cir.1980).

 The parties have cited no cases holding or implying that the Privacy Act is not within the FOIA (b)(3) exemption, but they object to the above analyses on other grounds. First, they contend that Section (b)(2) of the Privacy Act precludes such an interpretation. That section states, in relevant part:

 
(b) Conditions of Disclosure. 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 record pertains, unless disclosure of the record would be
 
....
 
(2) required under section 552 of this title (FOIA);

 From this the parties conclude that the Privacy Act was not intended to affect obligations under FOIA. That analysis begs the question. There is no doubt that Section (b)(2) of the Privacy Act allows disclosure if disclosure is required under FOIA, but it does not resolve the question of whether information ...


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