Id. (quoting Lesar, 636 F.2d at 492); see also Shaw, 749 F.2d at 61.
In view of the above, it is clear that the defendant in this case properly relied upon the first clause of Exemption 7(D) in refusing to disclose the name of the confidential source. Moreover, because it could reasonably be expected to reveal the identity of the confidential source, the defendant also correctly invoked Exemption 7(D) to withhold both the source's place of work when he supplied the defendant with certain information about the plaintiff as well as the information itself. See Birch v. United States Postal Serv., 256 U.S. App. D.C. 128, 803 F.2d 1206, 1212 (D.C. Cir. 1986) (upholding Exemption 7(D) claim because defendant "demonstrated that release of the information withheld would reveal the identity of the [confidential source] who exposed [the plaintiff's] abuse of the . . . mailing privilege").
Even if the information supplied by the confidential source could in no way identify him, the second clause of Exemption 7(D) nevertheless allows the defendant to withhold this information. See Shaw, 749 F.2d at 62 ("Requiring the second category [of Exemption 7(D) information] to come within the first [category] as well would render it entirely redundant. It is irrelevant to the second inquiry [under Exemption 7(D)] whether the information would reveal the identity of the source." (citing Duffin v. Carlson, 205 U.S. App. D.C. 1, 636 F.2d 709, 712-13 (D.C. Cir. 1980))). Consequently, the defendant was clearly justified in refusing to disclose those portions of the document setting forth information that the confidential source supplied to the defendant.
To summarize and add specificity, Exemptions 7(C) and 7(D) together permit the defendant to properly withhold almost all of the document at issue: (1) the second and third hand-written pages -- information and file numbers concerning third parties uncovered during the search triggered by the plaintiff's request and references to government employees involved in the search -- are protected from disclosure by Exemption 7(C); (2) part of the first paragraph of the first page -- the FBI agent's name -- is protected by Exemption 7(C) and another part -- the name and place of work of the confidential source -- is covered by Exemption 7(D); (3) paragraphs two through five of the first page -- information provided by the confidential source -- are properly withheld under Exemption 7 (D); (4) a small part of the sixth paragraph of the first page -- the name of the confidential source -- is sheltered by Exemption 7(D); and (5) the handwritten notations in the margins of the first page that refer to other agents or government employees are protected by Exemption 7(C).
However, FOIA requires that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." § 552(b), see Reporters Comm., 109 S. Ct. at 1477. Therefore, the Court will order the defendant to disclose certain portions of the first page, namely the verb and the last three words of the first paragraph, the sixth paragraph in its entirety except for the name, the seventh paragraph in its entirety, and any notations or stamps in the margins that do not identify any agent, government employee, or private individual.
C. Privacy Act
The Court's conclusions announced herein with regard to the defendant's FOIA claims do not render a Privacy Act analysis unnecessary. While "it is apparent . . . that the Privacy Act and FOIA substantially overlap, . . . it is apparent also that the two statutes are not completely coextensive; each provides or limits access to material not opened or closed by the other." Greentree v. United States Custom Serv., 218 U.S. App. D.C. 231, 674 F.2d 74, 78 (D.C. Cir. 1982). In other words, the Court must now evaluate the defendant's invocation of the Privacy Act, 5 U.S.C. § 552a(j)(2), because "if a FOIA exemption covers the documents, but a Privacy Act exemption does not, the documents must be released under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be released under FOIA." Martin v. Office of Special Counsel, Merit Sys. Protection Bd., 260 U.S. App. D.C. 382, 819 F.2d 1181, 1184 (D.C. Cir. 1987).
Although the Court has conducted a separate inquiry into the defendant's reliance upon Exemption (j)(2) of the Privacy Act, due to the substantial overlap between this exemption and FOIA's Exemption 7 under the circumstances of this particular case, the Court need not tarry long in ruling for the defendant. The Privacy Act enables individuals to gain access to records or information pertaining to themselves contained in an agency's system of records. § 552a(d)(2); Exner v. FBI, 612 F.2d 1202, 1203-04 (9th Cir. 1980); see Londrigan v. FBI, 232 U.S. App. D.C. 354, 722 F.2d 840, 843 (D.C. Cir. 1983). However, Exemption (j)(2) allows the head of an agency to promulgate rules to exempt from the Privacy Act's access provisions "any system of records within the agency," § 552a(j), as long as the system of records is "maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws . . . and which consists of . . . (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual," § 552a(j)(2).
The document at issue was retrieved from the FBI's Central Records System ("CRS"), a system of records which the Attorney General clearly has exempted from the Privacy Act's access provisions by promulgating rules as contemplated by Exemption (j)(2). See 28 C.F.R. § 16.96(a) & (b)(2)(i); see also Exner, 612 F.2d at 1204. However, the Attorney General's exemption of the CRS in turn applies only to the extent that information in this system of records is exempt pursuant to the Privacy Act's Exemptions (j) and (k). See 28 C.F.R. § 16.96(a); Vymetalik v. FBI, 251 U.S. App. D.C. 402, 785 F.2d 1090, 1095 (D.C. Cir. 1986).
Once the back-and-forth analysis between the various statutory and regulatory cross-references has been completed, the "bottom line" is that in this case the document is exempt under the Privacy Act if it was compiled for a criminal law enforcement purpose. See § 552a(j)(2); cf. Vymetalik, 785 F.2d at 1095. Although the route is necessarily more circuitous under the Privacy Act than under FOIA, in this case the destination of the two analyses is very similar, if not identical. In its discussion of the defendant's FOIA exemption claims, the Court has already addressed the plaintiff's concerns that "FBI records are not law enforcement records simply by virtue of the function that the FBI serves," Vymetalik, 785 F.2d at 1095, and has explained in detail why the document at issue was compiled for criminal law enforcement purposes within the meaning of the Pratt test, see id. (citing Pratt, 218 U.S. App. D.C. 17, 673 F.2d 408, and finding its "holding applicable in the instant [Privacy Act] case"). Moreover, rather than helping the plaintiff's cause as he contends, a comparison between the holding in Vymetalik -- FBI records generated by a "background" employment investigation rather than by a law enforcement investigation are not protected from the Privacy Act's access provisions -- and this case merely reinforces this Court's conviction that the document at issue here was compiled for a criminal law enforcement purpose and therefore is exempt under the Privacy Act.
After carefully considering the parties' filings and conducting an in camera review of the three-page document at issue, the Court holds that, for the most part, the defendant properly relied upon Exemptions 7(C) and 7(D) of the FOIA and Exemption (j)(2) of the Privacy Act to withhold the document. Therefore, the Court grants the defendant's summary judgment motion in large part, but the Court also orders the defendant to release certain portions of the first page of the document because they are reasonably segregable and are not protected from disclosure by either of the FOIA exemptions. The Court recognizes that this limited disclosure is probably nowhere near what the plaintiff hoped for, but, under the balance that Congress has struck by enacting FOIA, see John Doe Agency, 110 S. Ct. at 475, almost the entire responsive document is exempt.
The Court will issue an Order of even date herewith in accordance with the foregoing Opinion.
ORDER - November 28, 1990, Filed
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 27th day of November, 1990,
ORDERED that the defendant's Motion for Summary Judgment shall be, and hereby is, GRANTED in large part, EXCEPT that within thirty (30) days of the date of this Order, the defendant shall release to the plaintiff the following portions of the first page of the three-page document responsive to his request: (1) the verb and the last three words of the first paragraph; (2) the sixth paragraph in its entirety except for the name, which may be redacted; (3) the seventh paragraph in its entirety; and (4) any notations or stamps in the margins that do not identify FBI agents, other government employees, or private individuals; and it is
FURTHER ORDERED that the status call scheduled for 10:00 a.m., November 30, 1990 shall be, and hereby is, CANCELLED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the Court's docket.