The opinion of the court was delivered by: GERHARD A. GESELL
Plaintiff Doe seeks full access to records of the FBI developed during a background investigation into plaintiff's suitability for employment by the Department of Justice. Access to these records is sought by invoking the Privacy Act, the Freedom of Information Act ("FOIA"), and the Fifth Amendment of the Constitution. The Department has moved for summary judgment and plaintiff has moved for a detailed Vaughn index. The issues have been fully briefed and various motions are ripe for decision.
Doe, an experienced attorney, received a conditional offer of excepted employment from an agency of the Department of Justice in March, 1988. The position involved is not covered by the competitive Civil Service. Prior to making a final offer of employment, the Department requested the FBI to conduct a standard background check, which is routinely made of its prospective employees under authority of Executive Order 10450 and delegation from the Office of Personnel Management. After the investigation was completed, the offer of employment was withdrawn in December, 1988. No reason for withdrawal was stated. After Doe was unable to obtain by administrative proceedings a complete copy of the background investigation records, the complaint in this action was filed on August 9, 1991.
Doe vigorously challenges the partial disclosures made in response to his requests at the administrative level. Not only does he attack all redactions and exemptions claimed, but he also attacks the sufficiency of the coded Vaughn index and the good faith of the FBI's responses. He therefore demands broad rights to discovery with a view to questioning the sufficiency of the search and to confronting confidential sources whose identity is being protected by the Department. Doe asks the Court, among other things, to rescind the withdrawal of his conditional appointment and to allow amendment of any perceived inaccuracies in the background investigative records and in the accompanying opinions of persons who were interviewed. Pending completion of this long process, he asks the Court to retain jurisdiction in order to prevent any use of the investigative materials while he attempts to correct adverse information developed during the background interviews.
After examining the Vaughn index and the materials from the investigative records that had previously been furnished to Doe in redacted form, the Court, by Order dated February 24, 1992, requested -- and has since received and personally perused -- the full and complete text of all documents withheld under any of the FOIA or Privacy Act exemptions, including all documents that contain information adverse to Doe which either precipitated or in any way influenced or contributed to the withdrawal of the conditional offer of employment. Based on this examination, the Court has determined that the investigatory file does not specify any particular reason for the withdrawal of the job offer, and that the personnel file, which apparently consists only of Doe's employment application, contains no reference to withdrawal of the offer.
Given these circumstances and the fact that Doe's conditional employment was not covered by protections afforded individuals in the competitive Civil Service, Doe's demand can now be addressed in rational terms under established precedent.
Investigative background checks performed by the FBI are a system of records governed by the Privacy Act. See Vymetalik v. FBI, 251 App. D.C. 402, 785 F.2d 1090, 1095 (D.C. Cir. 1986). Defendants claim, however, that most of the pertinent information being withheld falls within the protection afforded by exemptions (k)(2) and (k)(5) of the Privacy Act, 5 U.S.C. §§ 552a(k)(2), (5). Exemption (k)(5) is directly applicable to the present situation. That exemption provides that an agency may exempt from Privacy Act disclosure:
investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment . . . but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence . . . .
The background investigation performed by the FBI is directed specifically at determining a prospective Justice Department employee's suitability. See Vymetalik, 785 F.2d 1095 at 1095-96 . In responding to plaintiff's requests for information -- as has been confirmed by the Court's examination of the unredacted documents -- the Department has complied with its own regulations promulgated pursuant to exemption (k)(5) by withholding only those portions of documents that would reveal the identity of a source who specifically requested confidentiality. See 28 C.F.R. §§ 16.71, 16.96. Defendants' response to plaintiff's Privacy Act request in this regard was proper.
Defendants have withheld the same information from plaintiff's FOIA request under FOIA exemption (b)(7)(D), 5 U.S.C. § 552(b)(7)(D),
and because the language of FOIA exemption (b)(7)(D) is substantially coextensive with Privacy Act exemption (k)(2) defendants have also invoked exemption (k)(2) as an alternative ground for withholding the documents from the Privacy Act request. See Doe v. F.B.I., 936 F.2d 1346, 1353 (D.C. Cir. 1991). Exemptions (b)(7)(D) and (k)(2) may be dealt with together in this instance, although the Court's holding above relating to exemption (k)(5) makes the invocation of (k)(2) unnecessary.
Exemption (b)(7)(D) exempts from FOIA disclosure:
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation information furnished by a confidential source . . . .
The issue in this case is whether the background check qualifies under the exemption. To be exempt, the records must, as a threshold matter, have been for law enforcement purposes. This Circuit has held that, although the records of the FBI do not per se meet this requirement, an assertion by the FBI that the records are for a law enforcement purpose is entitled to deference because the FBI is a law ...