now address the specific documents withheld by each agency.
Our November Order applied to eleven documents withheld by DIS. It now appears four of these documents had already been released, and that two additional documents are excused from release. Although plaintiff claimed that Documents 89, 95-97, 99-100
were withheld by DIS, DIS now states these documents were referred to DIA for determination of suitability for release, and that Documents 89 and 95-97 (four documents) were released to the plaintiff with the service copy of Defendants' Motion for Summary Judgment, filed on January 3, 1990. Documents 99 and 100 are memorandum created while processing plaintiff's FOIA request, and therefore need not be disclosed.
This accounts for six of the eleven documents.
Four of the five remaining documents have now been released in their entirety. DIS has submitted a Supplemental Declaration of Dale L. Hartig, Chief of the Office of Information and Public Affairs at DIS, which states that Documents 77, 78, 80, and 81 have been completely released, and that Document 79 has been released in part. Document 79, described as a memorandum prepared by the DIS general counsel discussing "litigation risks and strategies", was properly withheld under the work product exemption to both the Privacy Act and FOIA. See 5 U.S.C. § 552(b)(5); 5 U.S.C. § 552a(d)(5).
The only remaining information being withheld by DIS are portions of three other documents: Documents 42, 49, and 76. Portions of Documents 42 and 49 are being withheld to protect the identities of individuals who gave information with a desire to remain anonymous. Such information is properly exempt from release under FOIA, 5 U.S.C. § 552(b)(7)(D), and the Privacy Act, 5 U.S.C. § 552a(k)(5). Since DIS released cover sheets of these documents which demonstrate that the sources of the information desired confidentiality, there is no need for an in camera inspection of these documents.
The last document which is being partially withheld is Document 76. The Hartig Declaration dated December 12, 1989
states that Document 76 came from the DoD Component Inquiry File, which is not subject to the Privacy Act. The only information withheld from this document was the name and telephone number of an individual third party. We agree with the defendants that to release this information would constitute an invasion of privacy for that individual, and that therefore portions of this document were properly withheld under FOIA Exemption 7(C). 5 U.S.C. § 552(b)(7)(C); cf. Antonelli v. Sullivan, 732 F.2d 560, 562 (7th Cir. 1983) (without a legitimate need for witnesses' names and phone numbers, releasing such information to plaintiff in a FOIA suit would constitute an invasion of privacy for those witnesses).
Our November Order required DIA to provide additional information concerning its withholding of seventeen documents. In support of its actions, DIA has submitted a Supplemental Declaration of Terry E. Bathen, the "Bathen Declaration",
which provides additional descriptions of these seventeen documents.
We are satisfied with the level of detail provided by the Bathen Declaration. This declaration gives a full description of each document so that the court can properly evaluate a claimed exemption. An example:
A one-page handwritten, undated note from Major Carl F. Meyer, an Assistant General Counsel, DIA to Mr. John Brock, the General Counsel, DIA requesting guidance on the amount of assistance on the Savada case. At the bottom of the note, Mr. Brock responds to two specific questions posed by Major Meyer and provides general guidance on future support if DIA is made a party to the litigation. This note is attorney work product and is withheld in its entirety.
DIA Index of Withheld Documents, submitted as an attachment to the Bathen Declaration, Description of Document H. Descriptions as detailed as these have allowed us to determine that the following documents are properly withheld by DIA under the work-product exemption to FOIA and the Privacy Act: A, B, C, D, E, F, G, H, I, J, K, Qa, and Qc. See 5 U.S.C. § 552(b)(5); 5 U.S.C. § 552a(d)(5).
However, documents which are still being withheld by DIA under the deliberative process privilege must be released. This is because although the deliberative process privilege exempts these documents from release under FOIA, the privilege does not exempt the document from release under the Privacy Act. Defendants claim that documents which reflect the deliberative process of an agency fall under Exemption (d)(5) of the Privacy Act, but this exemption only protects from disclosure "any information compiled in reasonable anticipation of a civil action or proceeding." 5 U.S.C. § 552a(d)(5). This exemption clearly covers documents which are privileged under the work-product doctrine, but makes no mention of the deliberative process privilege. See Martin v. Office of Special Counsel, 260 U.S. App. D.C. 382, 819 F.2d 1181, 1187 (D.C. Cir. 1987). ("exemption (d)(5) [of the Privacy Act] in no way incorporates civil discovery law, and therefore in no way incorporates the executive 'deliberative process' privilege").
If an individual is entitled to a document under FOIA and the Privacy Act, to withhold this document an agency must prove that the document is exempt from release under both statutes. Martin v. Office of Special Counsel, MSPB, 819 F.2d at 1184. This is why our November Order directed the defendants to "further show that a document withheld under the deliberative process privilege is not covered by the Privacy Act." If the defendants had demonstrated that the documents claimed to be exempt under the deliberative process privilege were not subject to release under the Privacy Act, or that a valid exemption to the Privacy Act applied, we could have sanctioned the continued withholding of the documents. The documents described in Paragraphs L, M, N, O, P, Q, and Qh of the Bathen Declaration are clearly exempt from release from FOIA as deliberative process documents. But since this privilege applies only to FOIA and not to the Privacy Act, we must order these seven documents released to plaintiff.
Documents Qb and N are claimed to be withheld because they contain information provided by confidential sources. Any information which would reveal the identity of the confidential sources can be redacted under FOIA, 5 U.S.C. § 552(b)(7)(D), and the Privacy Act, 5 U.S.C. § 552a(k)(5), but the balance of these documents must be released.
The final matter to be addressed is the five documents which were partially withheld by DIA. One of these documents was released with Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment filed on May 24, 1990.
The only information withheld from the other four documents were the names of the DIA security officials involved in the investigation of the plaintiff. This information was properly withheld under FOIA Exemption (b) (6) and Privacy Act Exemption 552a(b). 5 U.S.C. § 552(b)(6); 5 U.S.C. § 552a(b).
An order consistent with the foregoing has been entered this day.
ORDER - January 22, 1991, Filed
Upon consideration of each party's motion for summary judgment, the oppositions thereto, the supplemental memorandum, and the entire record herein, and for the reasons stated in an accompanying Memorandum Opinion entered this day, it is by the Court this 22nd day of January, 1991
ORDERED that defendants' motion for summary judgment is granted for all documents except those described in Paragraphs L, M, N, O, P, Q, and Qh of the Supplemental Declaration of Terry E. Bathen, attached to Defendants' Supplemental Memorandum in Support of Their Motion for Summary Judgment, filed on December 14, 1990; and it is
ORDERED that plaintiff's motion for summary judgment is granted as to the aforementioned seven documents, and it is
ORDERED that defendants shall release these seven documents to the plaintiff, in accordance with the accompanying Memorandum Opinion; and it is
FURTHER ORDERED that this case is dismissed with prejudice.