UNITED STATES DEPARTMENT OF JUSTICE, WILLIAM FRENCH SMITH, ATTORNEY GENERAL OF THE UNITED STATES, AND WILLIAM H. WEBSTER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, PETITIONERS V. ANTHONY PROVENZANO No. 83-1045 In the Supreme Court of the United States October Term, 1983 On Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the Petitioners TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement A. The statutory framework B. The proceedings below Summary of argument Argument Privacy Act Exemption (j)(2) is a withholding statute within the scope of Exemption 3 of the Freedom of Information Act, and therefore documents exempt from access under Exemption (j)(2) are also exempt under the FOIA A. Privacy Act Exemption (j)(2) is a withholding statute within the literal language of FOIA Exemption 3 B. The legislative history makes clear that Privacy Act Exemption (j)(2) is covered by FOIA Exemption 3 C. The Privacy Act exemptions would be deprived of one of their primary purposes if they are not withholding statutes within FOIA Exemption 3 D. The decision of the court of appeals is based on an erroneous reading of subsection (b)(2) of the Privacy Act E. The "third party anomaly" theory provides no clue as to congressional intent and fails to refute the conclusion that the Privacy Act is an Exemption 3 statute F. The court of appeals relied on an administrative interpretation of the Privacy Act that has since been repudiated Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-2a) is reported at 717 F.2d 799. The opinion of the court of appeals in Porter v. United States Department of Justice (Pet. App. 3a-26a), which was decided together with the instant case and portions of which were effectively incorporated by reference in the opinion in this case, is reported at 717 F.2d 787. The opinion on denial of rehearing (Pet. App. 27a-30a) is reported at 722 F.2d 36. The opinion of the district court (Pet. App. 31a-40a) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 15, 1983, and a petition for rehearing was denied on November 10, 1983 (Pet. App. 27a-30a). The petition for a writ of certiorari was filed on December 23, 1983, and was granted on April 2, 1984 (J.A. 33). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTES INVOLVED The Freedom of Information Act, 5 U.S.C. 552, and the Privacy Act of 1974, 5 U.S.C. 552a, are set forth in full in an Appendix to this brief, 1a-32a. QUESTION PRESENTED Whether Exemption (j)(2) of the Privacy Act of 1974, 5 U.S.C. 552a(j)(2), is a withholding statute within the scope of Exemption 3 of the Freedom of Information Act, 5 U.S.C. 552(b)(3), and therefore prohibits an individual from obtaining disclosure of his agency records under the FOIA when access to those records is barred by the Privacy Act. STATEMENT A. The Statutory Framework 1. The Freedom of Information Act (FOIA), 5 U.S.C. 552, is a general disclosure statute pertaining to all executive agency records of the federal government, but it contains specific exemptions permitting withholding of certain agency records. These exemptions to disclosure are an integral part of the FOIA and represent "the congressional determination of the types of information that the Executive Branch must have the option to keep confidential." EPA v. Mink, 410 U.S. 73, 80 (1973). As this Court has observed, "(t)he (FOIA) expressly recognizes * * * that public disclosure is not always in the public interest and consequently provides that agency records may be withheld from disclosure under any one of the nine exemptions defined in 5 U.S.C. Section 552(b)." Baldrige v. Shapiro, 455 U.S. 345, 352 (1982). The primary FOIA exemption involved in this case is Exemption 3, 5 U.S.C. 552(b)(3). /1/ This exemption incorporates into the FOIA other statutes that provide for nondisclosure. Specifically, it exempts from the FOIA material covered by other statutes that either require nondisclosure absolutely or permit an agency not to disclose. In the latter instance, for a statute to qualify under Exemption 3 it must either define particular criteria for withholding or set forth the particular types of matters to be withheld. The FOIA was enacted in 1966, and was first amended in 1974. At that time, Exemption 7, 5 U.S.C. 552(b)(7), dealing with investigatory records, was narrowed to permit greater disclosure. In 1976, the FOIA was again amended when the Government in the Sunshine Act, 5 U.S.C. 552b, was enacted. This amendment, among other things, altered the text of Exemption 3 to its current form. 2. The Privacy Act, 5 U.S.C. 552a, was enacted in 1974, shortly after the 1974 FOIA amendments. The Act has several different purposes, which include preventing release to third parties of agency information concerning individuals and permitting access by individuals to certain records concerning themselves. By its terms, the Privacy Act applies only to "records," which are agency files or documents about individuals contained within "systems of records." Systems of records are defined by the statute as a group of agency records from which information is retrieved through use of the name of an individual or some other personal identifier. /2/ See 5 U.S.C. 552a(a)(4) and (5). Because of this limitation in the scope of the Privacy Act, the Act concerns only a portion of the material covered by the FOIA. Section (b) of the Privacy Act, 5 U.S.C. 552a(b), precludes an agency from disclosing to any person any record (within a system of records) regarding an individual without the consent of the subject of the record. However, this section provides a number of exceptions to this general nondisclosure rule; one of these exceptions, contained in subsection (b)(2) (5 U.S.C. 552a(b)(2)), authorizes release of records if disclosure is required by the FOIA. Section (d) of the Privacy Act, 5 U.S.C. 552a(d), provides the mechanism for access by individuals to records pertaining to themselves. This section, in other words, establishes the method by which a person may obtain any government agency record that can be retrieved from a system of records by use of the individual's name of other personal identifier. See 5 U.S.C. 552a(d)(1). It also permits individuals to request that corrections be made to their records. See 5 U.S.C. 552a(d)(2). Section (d) of the Privacy Act provides an access system for first party requests only. /3/ Through exemptions set out in Sections (j) and (k) of the Privacy Act, 5 U.S.C. 552a(j) and (k), government agencies may limit the scope of an individual's right of access to his own records. Exemption (j) permits the heads of certain agencies to promulgate regulations exempting entire systems of records from access. Thus, if a request is made for a record within an exempted system of records, that record may be withheld without further inquiry. Because of this feature, Privacy Act Exemption (j) is quite unlike the FOIA exemptions, which generally require an agency to comb each requested document and delete only the exact data exempted from disclosure by a specific FOIA exemption. Privacy Act Exemption (j)(2), 5 U.S.C. 552a(j)(2), provides an exemption for criminal enforcement records kept in a system of records by agencies whose principal function pertains to enforcement of criminal laws. Though not as broad as Exemption (j), Exemption (k) provides exemptions for other records, such as law enforcement investigatory records not covered by Exemption (j)(2), classified documents, and employment testing and personnel information. See 5 U.S.C. 552a(k)(1) through (7). In addition to providing exemptions from access, the Privacy Act exemptions permit agencies to avoid other specified portions of the Act, including provisions requiring an agency to make an accounting to an individual named in a particular record of disclosures of that record to others (5 U.S.C. 552a(c)(3)) and to give notice regarding agency record collection practices as well as procedures for gaining access to agency records (5 U.S.C. 552a(e)(1), (4)(G) and (H)). 3. The controversy here centers on the relationship between the FOIA, the general statute governing disclosure of all government records, and the Privacy Act, the specific statute covering release of files retrieved through use of an individual's name. If the Privacy Act is a FOIA Exemption 3 statute, its access exemptions are in essence incorporated into the FOIA. As a result, when an individual requester is precluded from access to his own records under the Privacy Act, he would also be precluded from access under the FOIA. In such instances, an agency need only follow the streamlined Privacy Act procedures to determine if the requested records are contained in an exempt system of records. If, on the other hand, the Privacy Act is not a statute falling within FOIA Exemption 3, a requester can obtain any nonexempt documents under the FOIA, regardless of the Privacy Act. Thus, even if records are excluded from access under the Privacy Act, a requester could avoid this prohibition and attempt to obtain the material simply by invoking the FOIA instead. B. The Proceedings Below Respondent Anthony Provenzano is a former officer of Local 560 of the International Brotherhood of Teamsters in New Jersey. The Federal Bureau of Investigation and the Criminal Division of the Department of Justice have voluminous files relating to respondent, /4/ who, during the past 20 years, has been convicted in state courts of murder and extortion, and in federal courts of conspiracy and substantive violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. 1962) and conspiracy to pay a kickback to a union pension fund trustee in order to obtain favors on a loan proposal (18 U.S.C. 371, 1954). See United States v. Provenzano, 620 F.2d 985 (3d Cir.), cert. denied, 449 U.S. 899 (1980); United States v. Provenzano, 615 F.2d 37 (2d Cir.), cert. denied, 446 U.S. 953 (1980); United States v. Provenzano, 334 F.2d 678 (3d Cir.), cert. denied, 379 U.S. 947 (1964); People v. Provenzano, 79 A.D.2d 811, 435 N.Y.S.2D 369 (1980). 1. In April 1978, respondent sent requests to the Department of Justice and the FBI for all files and documents indexed under his name, or containing his name (J.A. 6-7, 8-9). Following further correspondence, the FBI notified respondent, in July 1978, that it had located documents covered by his request and would process the request as soon as possible (J.A. 30). In July 1980, respondent filed an administrative appeal, challenging the failure by the Criminal Division of the Department of Justice to respond substantively to his request (Pet. App. 33a). The Department's Office of Privacy and Information Appeals advised respondent that his request was 76th on the Criminal Division project list, and that it would be some time before the request could be processed (J.A. 13). The Department indicated that if he so chose, respondent could treat this response as a denial of his administrative appeal (J.A. 14). 2. Approximately 17 months later, in December 1981, respondent filed this action in the United States District Court for the District of New Jersey against the Department of Justice and the FBI, seeking an order requiring release of the requested documents under the FOIA. The government moved for summary judgment, supported by affidavits from Criminal Division and FBI personnel. The affidavits showed that the Criminal Division had searched its files and found records within the scope of respondent's request in eight Department of Justice file systems. /5/ Citing the relevant departmental regulation (28 C.F.R. 16.91), the Criminal Division affidavit stated (J.A. 16) that all of these records systems were by regulation exempt from access under Privacy Act Exemption (j)(2). /6/ The FBI affidavit stated that the index to the Bureau's Central Records System revealed that respondent had been the subject of a number of FBI investigations (J.A. 20-21). /7/ Citing 28 C.F.R. 16.96, the FBI reported that its records on respondent had been exempted by regulation from disclosure under the Privacy Act (J.A. 22). The government contended that, because the relevant Criminal Division and FBI records were exempt from disclosure under the Privacy Act, they also were exempt from disclosure under the FOIA. 3. The district court granted the government's motion for summary judgment (Pet. App. 31a-41a). The court noted (id. at 34a-35a) that the Criminal Division and FBI affidavits indicated that all of the records sought by respondent were contained in systems of records exempted from access by Privacy Act Exemption (j)(2). The court then concluded (Pet. App. 35a-40a) that Exemption (j)(2) is a withholding statute within the meaning of FOIA Exemption 3, and it held that the government had therefore properly declined to release the documents requested by respondent. 4. The court of appeals reversed (Pet. App. 1a-2a), relying on its opinion in the companion case of Porter v. United States Department of Justice, 717 F.2d 787 (3d Cir. 1983) (Pet. App. 3a-26a). /8/ Initially, the court noted the existence of a conflict among the circuits regarding the relationship between the FOIA and the Privacy Act (Pet. App. 19a-20a). The court explained that the District of Columbia Circuit, in Greentree v. United States Customs Service, 674 F.2d 74 (1982), had held that a requester may use the FOIA to avoid the Privacy Act access exemptions, and that this position contradicted that taken by the Fifth Circuit in Painter v. FBI, 615 F.2d 689 (1980), and by the Seventh Circuit in Terkel v. Kelly, 599 F.2d 214 (1979), cert. denied, 444 U.S. 1013 (1980). The court of appeals found the Greentree reasoning persuasive and adopted it (Pet. App. 20a). (In Greentree, the D.C. Circuit had held that subsection (b)(2) of the Privacy Act, which provides an exception to the general rule against disclosure in Section (b) of that Act when the FOIA mandates disclosure, "represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA access" (674 F.2d at 79; emphasis in original).) The court of appeals then added several of its own observations. It noted that the Privacy Act's access exemptions state that they exempt agencies from the requirements of "this section," and it therefore concluded that the Privacy Act was not meant to have any effect on the FOIA (Pet. App. 21a). The court thus found it unnecessary to analyze the Privacy Act in relation to the criteria of FOIA Exemption 3 (Pet. App. 21a n.11). The court of appeals further determined that there is nothing in the Privacy Act that could be read as supporting an express or implied repeal of the FOIA (id. at 21a-22a). Although it did note a "certain amount of ambiguity" in the legislative history of the Privacy Act (id. at 22a), the court nonetheless concluded that this history revealed that Congress intended to keep the Privacy Act and FOIA exemptions separate from each other (id. at 24a). Accordingly, the court of appeals reversed the district court's judgment and remanded the case to that court for further proceedings (presumably, for the agency to process the requested documents under the FOIA). The government's petition for rehearing en banc was denied by a 6-4 vote (Pet. App. 27a-28a). In dissent, three judges expressed the view that "(i)t is difficult * * * to believe that in enacting FOIA and the Privacy Act, Congress intended to make it possible for someone in the position of (respondent) to require that the FBI and the Department of Justice turn over an entire system of records" (Pet. App. 29a). The dissenting judges added that "(a)lthough one of the goals of the Privacy Act is to make material available to first party requesters, a persuasive argument may be made that Exemption Three of (the FOIA) authorizes the government to deny (respondent's) request" (ibid.). 5. Shortly after rehearing was denied, the Seventh Circuit, in Shapiro v. DEA, 721 F.2d 215 (1983), expressly disagreed with the D.C. Circuit's decision in Greentree and the court of appeals' decision in this case, and ruled that Privacy Act Exemption (j)(2) is a FOIA Exemption 3 statute. This Court granted the petitions for certiorari in this case and Shapiro (No. 83-5878) and ordered the cases consolidated for purposes of oral argument. SUMMARY OF ARGUMENT The court of appeals has concluded that, even though the government records respondent seeks are exempt from access under the Privacy Act, respondent nonetheless can attempt to obtain those records under the Freedom of Information Act. The decision below should be reversed because it is contrary to the structure and legislative history of the records disclosure statutes and leads to an anomalous result that negates an important purpose of the Privacy Act access exemptions. A. The plain language of the statutes establishes that Privacy Act Exemption (j)(2) is a FOIA Exemption 3 withholding statute. Exemption 3 expressly incorporates into the FOIA nondisclosure statutes that leave discretion with an agency, so long as those statutes limit that discretion by, inter alia, describing the "particular types of matters" an agency may withhold. 5 U.S.C. 552(b)(3)(B). Privacy Act Exemption (j)(2) contains just such a particularized description. It authorizes the heads of certain agencies to deny access to Privacy Act "records" dealing with specifically described law enforcement activities. When the language of Exemption (j)(2) is compared to that of other nondisclosure statutes that have been found to fit the criteria of Exemption 3, the conclusion is inescapable that Exemption (j)(2) qualifies as an Exemption 3 statute. The court of appeals found it significant that Privacy Act Exemption (j)(2) exempts records from requirements of "this section," rather than "this title." The court took this language to mean that Exemption (j)(2) permits withholding from access under the Privacy Act but not under the FOIA. In reaching this result, the court erroneously assumed that, in order to qualify under FOIA Exemption 3, a withholding statute must contain an express reference to the FOIA. Exemption 3 imposes no such requirement; it incorporates nondisclosure statutes whether or not they refer to the FOIA. Moreover, the court's analysis leads to the implausible conclusion that Congress purposefully made the Privacy Act access exemptions broader than the FOIA exemptions, yet it intended to allow requesters to circumvent those broad Privacy Act exemptions merely by filing a FOIA request. In addition, there is nothing in Exemption 3 of the FOIA that suggests that Congress meant to exclude the Privacy Act exemptions from its coverage. When Congress enacted the Government in the Sunshine Act (5 U.S.C. 552b), it amended the FOIA to exclude the Sunshine Act exemptions from the scope of FOIA Exemption 3. Because FOIA Exemption 3 does not similarly exclude the Privacy Act exemptions from its coverage, it is logical to conclude that Congress intended those exemptions to be treated under Exemption 3 like any other withholding statute. B. This conclusion is confirmed by the legislative history and purpose of Exemption (j)(2). In enacting the Privacy Act, Congress took great care to provide a means for agencies to protect sensitive law enforcement files from disclosure to the subjects of those records. Indeed, the history of the Privacy Act law enforcement records exemptions establishes that Congress deliberately made those exemptions broader than the comparable FOIA exemptions. Specifically, Privacy Act Exemption (j)(2) authorizes any law enforcement agency to exempt from access certain criminal justice records systems in their entirety, thereby excusing the agency from the necessity of justifying nondisclosure on a line-by-line basis for each individual document, as would be required under the FOIA. The history demonstrates that Congress was aware of the dangers that would flow from disclosure of sensitive law enforcement records, and that it was Congress that made the basic policy decision that criminal justice agencies must have the authority to bar access to such records when necessary. Consequently, even though Exemption (j)(2) leaves disclosure discretion with the agency, it qualifies as an Exemption 3 withholding statute. C. A contrary interpretation would deprive the Privacy Act access exemptions of any effect beyond the scope of the FOIA exemptions. Yet, as noted above, the legislative history of the Privacy Act clearly establishes that Congress included exemptions in that Act that it intentionally designed to be broader than the FOIA exemptions. The court of appeals' ruling ignores that clear congressional intent by effectively repealing those portions of the Privacy Act access exemptions that are more expansive than the exemptions in the FOIA. If, on the other hand, Exemption (j)(2) is regarded as a FOIA Exemption 3 statute, the other FOIA exemptions would still have a significant purpose. Because the Privacy Act applies only to documents that qualify as "records," the Act covers only a fraction of the materials covered by the FOIA. Moreover, the Privacy Act access exemptions are discretionary and apply only to first party requests. Therefore, the FOIA exemptions would continue to govern exclusively with respect to (1) all third party requests; (2) all requests for documents that are not Privacy Act "records"; and (3) all first party requests made under the FOIA for "records," where the agency has not exempted those records from access under the Privacy Act. Thus, unlike the approach of the court of appeals, our interpretation allows both acts to retain their full meaning. D. The court of appeals nevertheless concluded that subsection (b)(2) of the Privacy Act establishes that requesters like respondent may use the FOIA to override the broad law enforcement access exemptions in the Privacy Act. Subsection (b)(2) provides an exception to the Privacy Act's general rule against disclosure where release of a record is required by the FOIA. The introductory language of Section (b) and the legislative history of subsection (b)(2) make clear, however, that subsection (b)(2) applies only to third party requests. Any other reading of subsection (b)(2) would render the Privacy Act exemptions meaningless to the extent that they are broader than the exemptions in the FOIA. E. The court of appeals also based its ruling on the so-called "third party anomaly" theory. Under this theory, if Exemption (j)(2) is a FOIA Exemption 3 statute with respect to first party requesters, it is conceivable that a third party requester might gain greater access to a record than the subject of the record. This is only a theoretical concern, however, because the FOIA privacy exemptions would likely prevent disclosure of records concerning an individual to a third party. The third party anomaly was especially unlikely to have arisen when the Privacy Act was enacted in 1974, because at that time the FOIA privacy exemptions had been given a broad application by the courts. In any event, there is no evidence that Congress was aware of the possibility of such an anomaly. Accordingly, the court of appeals erred in relying on the third party anomaly theory, which reveals nothing about Congress's intent when it enacted the Privacy Act. F. Similarly, the court of appeals erred in relying on an interpretation of the Privacy Act prepared in 1975 by the Office of Management and Budget, the lead agency for the Privacy Act. Because the question in this case involves the interaction of both the Privacy Act and the FOIA, the views of the Department of Justice, the lead agency for the FOIA, are also pertinent. Shortly after enactment of the Privacy Act, the Department of Justice took the position that a first party requester could not resort to the FOIA to circumvent the access exemptions of the Privacy Act. Furthermore, after a careful analysis of the language and legislative history of the Privacy Act, OMB recently concluded that the Privacy Act access exemptions are withholding statutes within the meaning of FOIA Exemption 3. ARGUMENT PRIVACY ACT EXEMPTION (j)(2) IS A WITHHOLDING STATUTE WITHIN THE SCOPE OF EXEMPTION 3 OF THE FREEDOM OF INFORMATION ACT, AND THEREFORE DOCUMENTS EXEMPT FROM ACCESS UNDER EXEMPTION (j)(2) ARE ALSO EXEMPT UNDER THE FOIA There is no dispute in this case that all of the law enforcement investigative records sought by respondent are contained within systems of records that have been properly exempted from access pursuant to regulations promulgated under Exemption (j)(2) of the Privacy Act. Thus, it is clear that respondent has no right under the Privacy Act to examine those records. Respondent contends, however, that he may seek those same records simply by filing a request for them under the Freedom of Information Act. It is our submission that the records sought by respondent are exempt from disclosure not only under the Privacy Act but also under the FOIA because Privacy Act Exemption (j)(2) is a withholding statute within the scope of FOIA Exemption 3. A. Privacy Act Exemption (j)(2) Is A Withholding Statute Within The Literal Language Of FOIA Exemption 3 In deciding whether certain material is exempt from disclosure under the FOIA, the proper starting point is the plain language of the relevant FOIA exemption. See United States v. Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 6. Furthermore, in cases involving Exemption 3 of the FOIA, it is also necessary to examine the language of the statute that is said to constitute a statutory exception to disclosure within the meaning of Exemption 3. See Baldrige v. Shapiro, 455 U.S. 345, 354-355 (1982). 1. Under FOIA Exemption 3, the FOIA does not apply to 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 discretaion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld * * *. To come within Exemption 3, therefore, a statute need not absolutely bar disclosure. It is sufficient if the statute describes with particularity the "types of matters" an agency has discretion to withhold. See DeLaurentiis v. Haig, 686 F.2d 192, 197 (3d Cir. 1982); Founding Church of Scientology, Inc. v. NSA, 610 F.2d 824, 827 (D.C. Cir. 1979). Although Section (d) of the Privacy Act provides generally for first party access to agency records, Exemption (j)(2) describes in detail the "particular types of matters" that agencies have discretion to withhold from such access through regulation. Exemption (j)(2) therefore qualifies as a withholding statute within the meaning of FOIA Exemption 3. See Shapiro v. DEA, 721 F.2d 215, 219 (7th Cir. 1983), cert. granted, No. 83-5878 (Apr. 2, 1984). Exemption (j)(2) is initially limited because it applies solely to Privacy Act "records," and only to those kept within "systems of records" maintained by an agency that "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." 5 U.S.C. 552a(j)(2). Exemption (j)(2) further states that it covers solely records that consist 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. This detailed description of the material covered by Exemption (j)(2) is more particular than that in numerous other statutes that have been held to be within FOIA Exemption 3. For example, 50 U.S.C. 403(d)(3) provides that the Director of Central Intelligence "shall be responsible for protecting intelligence sources and methods from unauthorized disclosure" -- language that can result in the exemption of records generated throughout the CIA. The legislative history of amendments to the FOIA specifically identifies this statute as being among those to which Exemption 3 applies, /9/ and the courts consistently have held the statute to be an Exemption 3 statute on the ground that it refers to "particular types of matters to be withheld." See, e.g., Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980); National Commission on Law Enforcement v. CIA, 576 F.2d 1373, 1376 (9th Cir. 1978). For the same reason, a similar statute, exempting from disclosure information concerning the "organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency" (Pub. L. No. 86-36, Section 6(a), 73 Stat. 64), has been held to be an Exemption 3 statute. See Founding Church of Scientology, Inc. v. NSA, 610 F.2d at 827-828. A number of other statutes considerably less specific than Privacy Act Exemption (j)(2) have also been held to be covered by FOIA Exemption 3. See, e.g., Iron & Sears v. Dann, 606 F.2d 1215, 1219-1220 (D.C. Cir. 1979), cert. denied, 444 U.S. 1075 (1980) (35 U.S.C. 122: "(a)pplications for patents" and "information concerning the same"); Medina-Hincapie v. Department of State, 700 F.2d 737, 742-743 (D.C. Cir. 1983); DeLaurentiis v. Haig, 686 F.2d at 193 (8 U.S.C. 1202(f): Department of State records pertaining to the "issuance or refusal of visas or permits to enter the United States"); King v. IRS, 688 F.2d 488, 496 (7th Cir. 1982); Chamberlain v. Kurtz, 589 F.2d 827, 838-389 (5th Cir.), cert. denied, 444 U.S. 842 (1979) (26 U.S.C. 6103: tax "return information"). 2. In short, Exemption (j)(2) "sets forth sufficiently definite standards to fall within the scope of Exemption 3." CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 122 (1980). The court of appeals nonetheless held that Exemption (j)(2) is not a FOIA Exemption 3 statute because Exemption (j) of the Privacy Act authorizes agencies to promulgate regulations exempting agency records "from any part of this section." The court of appeals reasoned that "(h)ad Congress intended to authorize the creation by regulation of exemptions from the (FOIA) it would have used language such as 'this title' rather than 'this section'" (Pet. App. 21a). Contrary to the reasoning of the court of appeals, it seems quite obvious that when Congress drafted the Privacy Act exemptions, its primary focus was on limiting access under that Act ("this section"). Thus, Congress enacted Exemption (j) for the specific purpose of barring access to records that otherwise would be made available to the subject of those records under Section (d) of the Privacy Act. The court of appeals appears to have assumed that, in order to qualify under FOIA Exemption 3, a withholding statute must include a specific reference to the FOIA. But Exemption 3 of the FOIA incorporates nondisclosure statutes whether or not they expressly refer to the FOIA. Indeed, most, if not all, of the statutes that have been held to come within Exemption 3 make no reference to the FOIA. Furthermore, as we discuss in greater detail below (see pages 24-30, infra), in drafting the Privacy Act access exemptions, including Exemption (j)(2), Congress took great pains to ensure that these exemptions would be broader in scope than the comparable exemptions in the FOIA. Accordingly, if the court of appeals were correct in concluding that the Privacy Act exemptions are not withholding statutes within the meaning of FOIA Exemption 3, the Privacy Act exemptions would be deprived of one of their principal purposes. 3. Exemption (j)(2) thus satisfies the criteria for withholding statutes set forth in Exemption 3 of the FOIA. Unless FOIA Exemption 3 itself excludes the Privacy Act from its coverage, we submit that Privacy Act Exemption (j)(2) must be held to constitute a withholding statute under the literal terms of Exemption 3. In Painter v. FBI, 615 F.2d 689, 690-691 (1980), the Fifth Circuit noted that following enactment of the FOIA (5 U.S.C. 552), Congress passed two other open records statutes, the Privacy Act (5 U.S.C. 552a) and the Government in the Sunshine Act (5 U.S.C. 552b). The court observed that Congress was obviously "aware of the interplay between these various open records acts, and * * * it specifically indicated when the exemptions of one act should not apply to disclosures mandated by another" (615 F.2d at 691). To illustrate this point, the court noted that, in enacting the Privacy Act, Congress specifically provided, in Section (q), 5 U.S.C. 552a(q), "that no agency could rely on an FOIA exemption to withhold from an individual any record to which that individual would otherwise be entitled under the provisions of the Privacy Act" (615 F.2d at 690). In addition, the court pointed out (ibid.) that "when in 1976 Congress enacted the Sunshine Act, it amended (Exemption 3) of the FOIA * * * to specify that exemptions under the Sunshine Act could not be asserted to block disclosure under the FOIA." /10/ Because Congress has never expressed any intent to exclude the Privacy Act exemptions from the coverage of FOIA Exemption 3 (as it did with respect to the Sunshine Act), the Fifth Circuit declined to infer any such intent (615 F.2d at 691) and concluded that "material exempted from disclosure under the provisions of the Privacy Act are matters 'specifically exempted from disclosure by statute' under (Exemption 3)" (615 F.2d at 691 n.3). Thus, the fact that Exemption 3 does not expressly exclude the Privacy Act exemptions from its coverage confirms that Congress intended those exemptions to be treated under Exemption 3 like any other withholding statute. Hence, the "plain language of the statute(s) * * * is sufficient to resolve the question presented." United States v. Weber Aircraft Corp., slip op. 6. As we now show, the legislative history fully supports this reading of the plain language. B. The Legislative History Makes Clear That Privacy Act Exemption (j)(2) Is Covered By FOIA Exemption 3 1. Congress amended Exemption 3 in 1976, in re-response to this Court's decision in FAA Administrator v. Robertson, 422 U.S. 255 (1975), which held that Exemption 3 was intended to preserve all preexisting withholding statutes, even those that vested essentially unlimited discretion in an agency to withhold a wide range of documents. Congress sought to eliminate from the coverage of Exemption 3 those statutes granting an agency head "cart blanche (sic) to withhold any information he pleases." H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. I, at 23 (1976). See CPSC v. GTE Sylvania, Inc., 447 U.S. at 121-122 n.18. "Congress did not, however, itself undertake to sort out those nondisclosure statutes that it comprehended as remaining within the exemption from those that it intended to exclude." American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978). Instead, Congress incorporated general standards in Exemption 3 and left to the courts the task of determining whether any given nondisclosure statute fits within that exemption. The thrust of Exemption 3 "is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch." American Jewish Congress v. Kreps, 574 F.2d at 628 (footnote omitted). Thus, in considering whether a nondisclosure statute qualified under Exemption 3, a court's inquiry must be directed to whether the statute "is the product of congressional appreciation of the dangers inherent in airing particular data" (ibid.). See, e.g., Church of Scientology v. United States Postal Service, 633 F.2d 1327, 1331 (9th Cir. 1980); Founding Church of Scientology, Inc. v. NSA, 610 F.2d at 827-828. 2. The legislative history of the Privacy Act /11/ reveals a clear intent by Congress to empower certain agency heads to withhold intelligence and criminal investigatory records because of the grave harm that could result from their disclosure. This legislative history shows that Congress had no intention to require even segments of the type of criminal investigation and law enforcement files at issue here to be made available to an individual like respondent who is the subject of those sensitive records. In its report on the House version of the proposed privacy legislation, the House Government Operations Committee commented on the bill's expansive exemption for criminal justice records. Recognizing the importance of exempting CIA and criminal justice records from disclosure, the Committee expressed the belief that such a broad exemption "is permissible for these two types of records because they contain particularly sensitive information." H.R. Rep. 93-1416, 93d Cong., 2d Sess. 18 (1974); Leg. Hist. 311. The Senate Government Operations Committee similarly expressed its concern that criminal justice files be protected from disclosure. The Committee observed that law enforcement agencies maintain files containing "highly sensitive and usually confidential information collected by law enforcement officers in anticipation of criminal activity, such as by organized crime figures, or in the course of investigating criminal activity which has already occurred." S. Rep. 93-1183, 93d Cong., 2d Sess. 23 (1974); Leg. Hist. 176. The Committee concluded that "it would not be appropriate to allow individuals to see their own intelligence or investigative files" (ibid.). /12/ The debates also convey Congress's understanding of the breadth of, and the need for, the Privacy Act exemptions. Thus, when the privacy legislation was presented on the floor of the House, one of its sponsors, Representative Moorhead, explained that "(e)ach individual shall be given access to his record within the system on his request, with the exception of files related to criminal investigations or national security." 120 Cong. Rec. 36644 (1974) (emphasis added); Leg. Hist. 883. /13/ In discussing the exemption in the Senate bill for law enforcement intelligence and investigative files, Senator Percy remarked that "(t)hese files, of course, are of a sensitive nature, and (the bill) provides that agencies maintaining such files may exempt them from the provisions of the bill providing that people may have access to their own records." 120 Cong. Rec. 36907 (1974); Leg. Hist. 811. /14/ Thus, in considering the privacy legislation, Congress clearly expressed its concern that individuals "not be allowed to require agencies to disclose criminal justice records relating to them." Shapiro v. DEA, 721 F.2d at 221. There is no indication in the legislative history that Congress intended sensitive law enforcement materials to be exempt from access under the Privacy Act, but nonetheless available through the FOIA. Indeed, the opposite intention is manifest in the legislative record, which shows that Congress deliberately fashioned the Privacy Act access exemptions so that they would be broader in scope than the comparable FOIA exemptions. In discussing proposed Exemptions (j) and (k), the House Report stressed that these provisions were "not intended to require * * * criminal justice agencies to withhold all their personal records from the individuals to whom they pertain." H.R. Rep. 93-1416, supra, at 19; Leg. Hist. 312. The Committee urged such agencies "to keep open whatever files are presently open" and to make files available in the future if this could be done without "infringing on the ability of the agencies to fulfill their missions" (ibid.). This statement reflects the belief that, by enacting the Privacy Act, Congress would be providing agencies with the means to close files that otherwise would be open to possible disclosure, presumably under the FOIA. Although the Committee urged criminal justice agencies to continue to keep these files open if possible, it plainly intended to allow agencies such as the FBI and the Criminal Division of the Department of Justice to close records systems in instances, such as this one, in which the agencies believe it necessary to do so in order "to fulfill their missions." The debates concerning the Privacy Act exemptions provide further evidence of congressional intent to authorize agencies to prevent first party access to law enforcement records beyond the restrictions on disclosure of such records contained in the FOIA. For example, Representative Ichord proposed an amendment to an early version of Privacy Act Exemption (k)(2), which, as it was then drafted, was identical in scope of FOIA Exemption 7. See H.R. Rep. 93-1416, supra, at 19, 33; Leg. Hist. 312, 326. Representative Ichord's amendment was designed to enlarge the scope of this Privacy Act exemption beyond that of FOIA Exemption 7, for "the purpose of protecting the investigatory material from being raided by the thousands and perhaps tens of thousands of persons who may seek to do so for no legitimate or excusable purpose." 120 Cong. Rec. 36651 (1974); Leg. Hist. 902. The House adopted this amendment (120 Cong. Rec. 36963 (1974); Leg. Hist. 945), and it became part of the Privacy Act. See 5 U.S.C. 552a(k)(2). /15/ With regard to an amendment proposed by Representative Erlenborn to include additional exemptions from disclosure in the Privacy Act, Representative Holifield commented: "We are skating on thin ice, between freedom of information and privacy of information, and I think the extra care that this would give or the extra protection it would give to sources that might be vital to the Government in many fields is worthy of consideration." 120 Cong. Rec. 36656 (1974); Leg. Hist. 912. (The amendment was approved. See 120 Cong. Rec. 36658 (1974); Leg. Hist. 919.) This observation reveals that, in enacting the Privacy Act, Congress was conscious of the tension between privacy and access to government information, and chose to provide "extra protection" for confidential sources. This extra protection would be lost if a requester could attempt to circumvent it by utilizing the FOIA. Finally, it is particularly significant that Congress rejected a provision in the Senate bill that would have made the Privacy Act's exemption for law enforcement records coextensive with that in the FOIA. The Senate privacy bill initially contained a braod exemption for law enforcement investigative and intelligence files. See Section 203(b) of S. 3418, 93d Cong., 2d Sess. 45 (Sept. 26, 1974); Leg. Hist. 141. On the Senate floor, the original language was replaced with a narrower provision substantially similar to the current FOIA Exemption 7. See S. 3418, 93d Cong., 2d Sess. 29-30 (Nov. 21, 1974); Leg. Hist. 362-363. The full Congress rejected this limited language, however, and instead enacted the broad law enforcement records exemptions contained in Sections (j)(2) and (k)(2) of the Privacy Act. This action demonstrates that Congress specifically intended the Privacy Act to contain broader protection for sensitive law enforcement records than does the FOIA. In sum, the legislative history of the Privacy Act establishes that Congress was well aware of the dangers to law enforcement posed by disclosure of investigative records. Congress made clear its intention to authorize the heads of criminal justice agencies, when necessary, to withhold law enforcement records to the fullest extent of the Privacy Act exemptions. Therefore, the basic policy decision against disclosure was made by Congress, as required by Exemption 3. /16/ C. The Privacy Act Exemptions Would Be Deprived Of One Of Their Primary Purposes If They Are Not Withholding Statutes Within FOIA Exemption 3 1. It is plain that Privacy Act Exemptions (j) and (k) are different from, and in some respects broader than, any of the FOIA exemptions. For example, Exemption (j)(2) permits the head of an agency to exempt from first party access a wide range of specified criminal justice records. The FOIA has no exemption fully equivalent to this provision. Furthermore, as described above, unlike the FOIA exemptions, Exemption (j)(2) permits an agency to exempt from disclosure entire systems of records, not merely segregable portions of requested material. The court of appeals concluded (Pet. App. 21a) that, despite the substantial differences in scope between the disclosure exemptions in the Privacy Act and those in the FOIA, Congress meant the Privacy Act exemptions to govern disclosure pursuant to the Privacy Act only. Put simply, "(i)n terms of the statutory objectives, this distinction makes little sense." FBI v. Abramson, 456 U.S. 615, 628 (1982) (footnote omitted). It means that Congress devoted considerable attention to providing Privacy Act access exemptions that are braoder than the FOIA exemptions, but nonetheless intended that persons could render those Privacy Act exemptions meaningless simply by resorting to the FOIA. Thus, under the court of appeals' approach, one would be forced to conclude that Congress meant to create Privacy Act access exemptions knowing full well that a requester could evade them by filing a request under the FOIA for the same material, even though its release was barred under the Privacy Act. As the Seventh Circuit concluded in Shapiro v. DEA, 721 F.2d at 222, this is an entirely illogical result: "(T)he legislative history of the Privacy Act shows Congress' concern that individuals not use the Act to obtain access to their own criminal investigative files. It makes little sense to conclude that Congress would enact specific nondisclosure provisions in the Privacy Act to address this concern, while at the same time allowing individuals to bypass these exemptions by using the broader access terms of the FOIA." To accept the court of appeals' holding "'would be to impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.'" Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 631 (1973), quoting Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 489 (1947). /17/ 2. The contrary holdings of the courts of appeals here and in Greentree v. United States Customs Service, 674 F.2d 74 (D.C. Cir. 1982), would defeat the purpose of the Privacy Act access exemptions. In support of its holding, the D.C. Circuit in Greentree reasoned that, even if the Privacy Act exemptions can be evaded through the FOIA with respect to first party access, these exemptions retain some meaning because they allow an agency to exempt itself from certain other requirements of the Privacy Act. 674 F.2d at 80-81. It is true that the Privacy Act imposes duties on agencies beyond allowing access to records (see, e.g., 5 U.S.C. 552a(e)(1) to (5), (8)), and that Exemption (j) permits agencies to exempt themselves from certain of these requirements. The precise language of Exemption (j) demonstrates, however, that Congress affirmatively intended this exemption to permit agencies to withhold records from first party requesters, not merely to free agencies from other miscellaneous burdens created by the Act. Exemption (j) has a highly selective application: it applies to certain sections, subsections, and even paragraphs of the Privacy Act, but not to others. For example, Exemption (j) allows an agency to exempt records from the operation of paragraph (e)(4)(G) of the Act, but not from adjacent paragraph (e)(4)(F). With this highly specific structure in mind, it is significant that Congress made Exemption (j) applicable to Privacy Act Section (d) in its entirety. Only subsection (d)(1) concerns access to records; subsections (d)(2) through (4) concern procedures for record correction. If, as the court in Greentree concluded, Congress meant in Exemption (j) to relieve agencies from the burden of record correction but not from the requirement of first party access, Congress would have followed the paragraph-by-paragraph approach it took in tailoring the reach of Exemption (j) in other respects. Congress did not do so, however, and its inclusion of first party access among the requirements that can be avoided through agency promulgation of Exemption (j) regulations must be considered intentional, and must be given effect. 3. Although the decision below "would deprive the Privacy Act access exemptions of any effect beyond the scope of the FOIA exemptions, the government's construction allows both acts to retain their full meaning." Shapiro v. DEA, 721 F.2d at 222. The FOIA and its exemptions cover large groups of materials wholly outside the scope of the Privacy Act. The Privacy Act access provision (Section (d)) and its exemptions (Sections (j) and (k)) apply only to first party access requests, and only where such requests concern materials that constitute Privacy Act "records." Furthermore, Privacy Act Exemption (j) is permissive rather than mandatory, and governs only when invoked through regulations promulgated by the head of a government agency. Consequently, even if Privacy Act Exemption (j)(2) is a FOIA Exemption 3 withholding statute, the FOIA exemptions would continue to govern exclusively with respect to (1) all third party requests; (2) all requests for documents that are not Privacy Act "records"; and (3) all first party requests made under the FOIA for "records," where the agency has not promulgated regulations exempting its records from the access provisions of the Privacy Act. The court of appeals expressed the view that its interpretation of the FOIA and the Privacy Act made the two acts "perfectly reconcilable" (Pet. App. 22a). As noted above, however, to the extent that the Privacy Act access exemptions are broader than those in the FOIA, the court's holding leaves the Privacy Act exemptions devoid of any purpose. Thus, it is only by effectively repealing a substantial element of the Privacy Act that the court managed to render the two acts "perfectly reconcilable." D. The Decision Of The Court Of Appeals Is Based On An Erroneous Reading Of Subsection (b)(2) Of The Privacy Act Notwithstanding the persuasive evidence that Privacy Act Exemption (j)(2) is a withholding statute within the meaning of FOIA Exemption 3, the court of appeals held that Exemption 3 is essentially irrelevant (Pet. App. 21a n.11). Based on a misreading of the language and history of subsection (b)(2) of the Privacy Act, the court concluded that Congress intended the Privacy Act exemptions to have no effect outside that Act. The court also believed that this conclusion was compelled because it could find nothing in the Privacy Act or its history that supports an express or implied "repeal" of the FOIA (Pet. App. 21a-24a). The court therefore ruled that records that are exempt from first party access under the Privacy Act are not similarly exempt under the FOIA. 1. Contrary to the court of appeals' approach, it is not necessary to find that the Privacy Act repealed the FOIA in order to conclude that records exempt from access under the Privacy Act are also exempt under the FOIA. Exemption 3 of the FOIA specifically incorporates into the FOIA other statutes that provide for nondisclosure. See H.R. Conf. Rep. 94-1441, 94th Cong., 2d Sess. 14 (1976). The "repeal" analysis used by the court of appeals would require that, whenever an agency asserts that a particular nondisclosure statute fits within Exemption 3, it must point to statutory language or legislative history showing that Congress intended the statute to repeal the FOIA. Yet, in the numerous cases examining the application of Exemption 3, we are not aware of a single instance in which another court has imposed such a requirement. Thus, the court erred in searching for evidence of intent to repeal the FOIA, rather than giving effect to the language and purpose of the statutes at issue. 2. Furthermore, neither the language nor the legislative history of Privacy Act subsection (b)(2), on which the court of appeals relied, supports its conclusion that the Privacy Act exemptions bar access to agency records only when a request is made pursuant to the Privacy Act and have no effect when disclosure is sought under the FOIA. a. Section (b) of the Privacy Act generally prohibits release to requesters of agency records regarding individuals, but the section contains certain exceptions to this general rule. Subsection (b)(2) provides an exception to the general nondisclosure rule where release of a record is required by the FOIA. Relying on the decision of the D.C. Circuit in Greentree v. United States Customs Service, 674 F.2d at 78-79, the court of appeals concluded that subsection (b)(2) demonstrates that the Privacy Act's access exemptions apply only within the context of Privacy Act requests, and not where access to records is sought under the FOIA. The plain language of Section (b) reveals, however, that this section applies exclusively to requests by third parties for records concerning other persons. The section's introductory language establishes that the section does not apply when "the individual to whom the record pertains" makes the request for the record or consents to its release. 5 U.S.C. 552a(b). /18/ In any case involving a first party request (i.e., whenever a person seeks his own record), the subject of the record has actually made the request (and, by filing the request, has also consented to release). Thus, the language of Section (b) makes no sense when applied to first party requests such as that filed by respondent. It is clear, therefore, that the entire section, including subsection (b)(2), has no relevance to first party requests, and that such requests are governed instead by Section (d) of the Privacy Act, which provides the sole mechanism for first party access. See Shapiro v. DEA, 721 F.2d at 220. As we have already seen, access under Section (d) is explicitly limited by Exemption (j). /19/ b. This reading of the plain language of subsection (b)(2) is confirmed by its legislative history. The court of appeals in this case and the D.C. Circuit in Greentree, however, misread that history in concluding that the Privacy Act reflects a congressional intent to keep the provisions of the Privacy Act and the FOIA entirely separate. The initial Senate privacy bill reported from committee contained two provisions that would have permitted disclosure of records in response to FOIA requests. See Sections 202(c) and 205(b) of S. 3418, 93d Cong., 2d Sess. 43, 47 (Sept. 26, 1974); Leg. Hist. 139, 143. Section 202(c) of the Senate bill, a forerunner of Privacy Act subsection (b)(2), provided, inter alia, that another section of the bill (Section 202(a)) barring disclosure of personal information unless the subject of the information had given his consent, would not apply "when disclosure would be required or permitted pursuant to (the FOIA)." S. 3418, supra, at 43 (Sept. 26, 1974); Leg. Hist. 139. This provision was included in the Senate bill in order "to meet the objections of press and media representatives that the statutory right of access to public records and the right to disclosure of government information might be defeated if such restrictions were to be placed on the public and press." S. Rep. 93-1183, supra, at 71; Leg. Hist. 224. Thus, the purpose of Section 202(c) apparently was to protect existing third party rights of access to government information. Section 205(b) of the Senate bill, on the other hand, would have made the entire bill -- including its provisions exempting certain records from first party access -- subject to other federal disclosure statutes and regulations. /20/ "This section was intended as specific recognition of the need to permit disclosure under the (FOIA)." 120 Cong. Rec. 40406, 40882 (1974); Leg. Hist. 861, 989. /21/ On the Senate floor, Section 202(c) was eliminated in a "perfecting amendment" (120 Cong. Rec. 36889 (1974); Leg. Hist. 765), and the Senate bill went forward with only Section 205(b). As a result, the bill that passed the Senate would not have increased a law enforcment agency's ability to protect its records -- with respect to both first and third party requests -- beyond the protections provided in the FOIA. In contrast to the Senate bill, the House privacy bill, as reported from committee, contained no provision permitting public disclosure of personal records. See H.R. 16373, 93d Cong., 2d Sess. Section (b)(2), at 22-23 (Oct. 2, 1974); Leg. Hist. 279-280. /22/ Indeed, the House Committee observed that the House bill would provide even greater protection to personal privacy than Exemption 6 of the FOIA because it "would make all individually-identifiable information in Government files exempt from public disclosure." H.R. Rep. 93-1416, supra, at 13; Leg. Hist. 306. The House bill provided for first party access to agency records; that access, however, was subject to broad exemptions, similar to those in the Privacy Act as ultimately enacted. See H.R. 16373, supra, Sections (d), (j) and (k) at 25-26, 32-34 (Oct. 2, 1974); Leg. Hist. 282-283, 289-291. Accordingly, the House bill's first party access exemptions were considerably broader than those in the Senate bill. See page 29, supra. In conference, the sponsors of the two bills rejected the expansive pro-disclosure langauge in Section 205(b) of the Senate bill. See Exner v. FBI, 612 F.2d 1202, 1206 n.9 (9th Cir. 1980). The conferees adopted the House bill's prohibition against public disclosure, but added what is now Privacy Act subsection (b)(2), providing an exception to Section (b) for cases in which third party disclosure is required by the FOIA. See 120 Cong. Rec. 40406, 40882 (1974); Leg. Hist. 861, 989. The conferees retained the broad access exemptions in the House bill, under which an agency head may, by regulation, withhold law enforcement records from first party requesters. Thus, the House compromised by permitting disclosure to third parties of records that otherwise would be available under the FOIA, while the Senate compromised by accepting the broad first party access exemptions in the House bill. By this compromise, Congress ensured that an individual would not be able to use the FOIA to obtain agency records pertaining to him where those records are exempted from first party access under the Privacy Act. /23/ In reaching the conclusion that the pro-disclosure position embodied in Section 205(b) of the Senate bill prevailed in conference, both the court of appeals (Pet. App. 23a-24a) and the D.C. Circuit in Greentree (674 F.2d at 83) relied on a staff-prepared analysis of the Senate-House compromise. The analysis explained (120 Cong. Rec. 40406, 40882 (1974); Leg. Hist. 861, 989 (emphasis added)) that the compromise would add an additional condition of disclosure to the House bill which prohibits disclosure without written request of an individual unless disclosure of the record would be pursuant to Section 552 of the Freedom of Information Act. This compromise is designed to preserve the status quo as interpreted by the courts regarding the disclosure of personal information under that section. This analysis, which describes what became subsection (b)(2) of the Privacy Act, addresses a situation in which the consent of the subject of a record has not been obtained. Like the language of Section (b) itself, this passage from the staff analysis refers to disclosures pursuant to third party requests for information, and thus the analysis demonstrates only that it was the status quo of disclosures to third parties that the Privacy Act was intended to preserve. The compromise explanation, therefore, sheds no light on congressional intent with regard to first party requests, such as that made by respondent. E. The "Third Party Anomaly" Theory Provides No Clue As To Congressional Intent And Fails To Refute The Conclusion That The Privacy Act Is An Exemption 3 Statute In concluding that the Privacy Act access exemptions can be evaded by the mere filing of a FOIA request, the D.C. Circuit in Greentree relied in large measure on a theory labeled the "third party anomaly" (674 F.2d at 79-80). This theory begins with the premise that access under the FOIA is broader than under the Privacy Act. An individual making a first party request for a document will be denied access if agency regulations promulgated pursuant to the Privacy Act exemptions provide for withholding and those exemptions trigger FOIA Exemption 3. However, a third party request under the FOIA for the same document could conceivably be granted, at least in part, because Privacy Act Exemptions (j) and (k) have no effect on subsection (b)(2) of the Act, and thus are irrelevant to third party requests. Although a "third party anomaly" might indeed exist, it is clear that the anomaly can arise only in rare instances. In the vast majority of cases, a third party would be prevented from obtaining access to records about another individual covered by the Privacy Act (particularly if they are law enforcement records) because of the FOIA's own privacy exemptions, Exemptions 6 and 7(C), 5 U.S.C. 552(b)(6) and (7)(C). /24/ Under the balancing test used to apply these exemptions, such an invasion of privacy is permitted only in those instances in which the interest in preserving privacy is outweighed by a countervailing public interest in disclosure. See United States Department of State v. Washington Post Co., 456 U.S. 595, 599-602 (1982); Department of Air Force v. Rose, 425 U.S. 352, 370-376 (1976). The reliance placed on the third party anomaly theory by the court in Greentree is unjustified because the crucial question is not whether such an anomaly might exist today, but whether it sheds any light regarding the intent of Congress in enacting the Privacy Act. See Shapiro v. DEA, 721 F.2d at 223. We have found no evidence that Congress was aware that such an anomaly could arise. Therefore, the third party anomaly theory shows nothing about congressional intent, which is the crux of the inquiry here. When it enacted the Privacy Act, Congress certainly recognized that third parties might invoke the FOIA to seek records concerning individuals. See S. Rep. 93-1183, supra, at 71; Leg. Hist. 224. Indeed, the conferees inserted subsection (b)(2) into the Privacy Act specifically "to preserve the status quo as interpreted by the courts regarding the disclosure of personal information under (the FOIA)" (120 Cong. Rec. 40406, 40882 (1974); Leg. Hist. 861, 989). However, "(u) nder the 'status quo as interpreted by the courts' at that time, third party requesters enjoyed few rights of access to records concerning other persons" (Shapiro v. DEA, 721 F.2d at 223). The case law in 1974 interpreted FOIA Exemption 6 quite broadly. See, e.g., Wine Hobby USA, Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974). As a general matter, the courts enforced FOIA requests for personal information only where the requests were for individuals' names and addresses. See Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971); cf. Robles v. EPA, 484 F.2d 843 (4th Cir. 1973) (requiring disclosure of names and addresses of persons living in houses showing unsafe levels of radiation). Courts refused to compel the disclosure of records where FOIA requests sought more detailed information about individuals. See Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73 (D.C. Cir. 1974). "Moreover, although Congress had amended FOIA Exemption 7 to expand access to criminal investigative records just before passing the Privacy Act, this was not the 'status quo as interpreted by the courts' at that time." Shapiro v. DEA, 721 F.2d at 223. /25/ Thus, under contemporaneous decisions interpreting the relevant FOIA exemptions, a third party anomaly was unlikely to have arisen with respect to requests for law enforcement records such as those sought by respondent. As noted above, the relevant question is what Congress intended in 1974 when it enacted the Privacy Act. During its consideration of the Act, Congress expressly referred to two examples of the type of personal information that it believed should be disclosed to third parties under the FOIA: data regarding government licensees and information concerning federal employees. See H.R. Rep. 93-1416, supra, at 13; Leg. Hist. 306. This information is not at all comparable to the sort of sensitive law enforcement material sought by respondent. Accordingly, the fact that a third party anomaly may now exist under the FOIA as currently formulated and interpreted by some lower courts is irrelevant in discerning congressional intent in enacting the Privacy Act a decade ago. /26/ F. The Court Of Appeals Relied On An Administrative Interpretation Of The Privacy Act That Has Since Been Repudiated The court of appeals placed great reliance (Pet. App. 24a-26a) on an interpretation of the Privacy Act prepared in 1975 (40 Fed. Reg. 56742-56743) by the Office of Management and Budget, the agency charged with responsibility for developing guidelines for implementation of the Privacy Act. See Pub. L. No. 93-579, Section 6, 88 Stat. 1909. The question presented here, however, involves the interaction of the Privacy Act and the FOIA. The Department of Justice has been designated as the lead agency for the FOIA. See 5 U.S.C. 552(d). Thus, the views of the Department of Justice are also pertinent. Several months after the Privacy Act was enacted, the Department of Justice issued a letter that analyzed the interaction between the Privacy Act and the FOIA and concluded that "the Privacy Act is the exclusive remedy for an individual who seeks records about himself contained in a system of records covered by the Privacy Act" (121 Cong. Rec. 32890 (1975) (letter from Deputy Assistant Attorney General Lawton); Leg. Hist. 1177). In reaching that conclusion, the Department observed that a contrary interpretation would nullify the Privacy Act access exemptions to the extent that they extend beyond the protections in the FOIA (ibid.). Therefore, under the Department of Justice's contemporaneous construction of the statutes, the Privacy Act's exemptions could not be circumvented through use of the FOIA. In August 1975, shortly after issuance of the letter, Senator Kennedy wrote to Attorney General Levi expressing his disagreement with the Department's interpretation. 121 Cong. Rec. 32890-32891 (1975); Leg. Hist. 1178-1180. /27/ In response, Deputy Attorney General Tyler sent Senator Kennedy a draft regulation describing how the Department of Justice intended to process first party requests for records. 121 Cong. Rec. 32894 (1975); Leg. Hist. 1187-1188. The regulation (later codified at 28 C.F.R. 16.57), provided that, as a matter of agency discretion, a first party requester seeking access to records exempted under the Privacy Act would be given all records within the scope of his request to which he would have been entitled under the FOIA. The regulation was prefaced by a statement that nothing in it was meant to be a waiver of the Department's position that first party requests are subject to all Privacy Act exemptions. Thus, the position of the Department of Justice shortly after enactment of the Privacy Act was that the new act's access exemptions could not be overridden by the FOIA. /28/ Furthermore, OMB has recently completed a thorough review of the original Privacy Act guideline relied upon by the court of appeals, and has determined that this guideline should be changed. See 49 Fed. Reg. 12338-12341 (1984). OMB based its determination on a careful analysis of the Privacy Act's language and history. After examining the reasoning of the courts of appeals here and in Greentree, OMB found that reasoning at odds with the manifest intent of Congress to create in the Privacy Act exemptions from disclosure broader than those in the FOIA. 49 Fed. Reg. 12339-12341 (1984). In its capacity as the lead agency for the Privacy Act, OMB concluded that the Privacy Act exemptions are withholding statutes within the meaning of FOIA Exemption 3 and that, therefore, agency records exempt from disclosure under the Privacy Act are, to that extent, also exempt from disclosure under the FOIA. /29/ CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General ELLIOTT SCHULDER Assistant to the Solicitor General LEONARD SCHAITMAN DOUGLAS LETTER Attorneys JULY 1984 /1/ Exemption 3 reads in full: This section does not apply to 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 withholding or refers to particular types of matters to be withheld * * *. /2/ Thus, if an agency record on a subject is not indexed so that it can be found by use of an individual's name or other personal identifier, the record is not covered by the Privacy Act. Savarese v. United States Department of HEW, 479 F. Supp. 304, 307 (N.D. Ga. 1979), aff'd, 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078 (1981). /3/ A request by an individual for his own records is commonly referred to as a "first party request." A request by an individual for another person's records is known as a "third party request." We will use this terminology throughout this brief. /4/ The Criminal Division's files consist of approximately 43,000 pages; the FBI's files consist of more than 15,000 pages. /5/ These file systems were described as follows (J.A. 16): JUSTICE/CRM-001 -- Central Criminal Division Index File and Associated Records JUSTICE/CRM-002 -- Criminal Division Witness Security File JUSTICE/CRM-003 -- File of Names Checked to Determine if Those Individuals have been the Subject of an Electronic Surveillance JUSTICE/CRM-010 -- Organized Crime and Racketeering Information System JUSTICE/CRM-012 -- Organized Crime and Racketeering Section, General Index File and Associated Records JUSTICE/CRM-014 -- Organized Crime and Racketeering Section Intelligence and Special Services Unit, Information Request System JUSTICE/CRM-019 -- Request to the Attorney General for Approval of Applications to Federal Judges For Electronic Interceptions JUSTICE/CRM-022 -- Witness Immunity Records /6/ One system of records concerning respondent, JUSTICE/CRM-010, was originally included in the exempting regulation. See 41 Fed. Reg. 12647 (1976). It was subsequently dropped from the regulation as a result of the destruction of the records within the system. See 44 Fed. Reg. 54046 (1979). Because respondent's request was pending at that time, the records from this system pertaining to him were not destroyed. J.A. 16. /7/ The FBI investigation files containing documents pertaining to respondent were described as follows (J.A. 21): Racketeer Influenced and Corrupt Organization investigations Kidnapping investigation Anti-Racketeering investigations Employee Retirement Income Security Act investigations Civil Rights investigation Accounting and Fraud investigation Labor Management Relations Act investigations Labor-Management Reporting and Disclosure Act investigations Interstate Gambling Activities investigation Interstate Transportation in Aid of Racketeering investigation Extortion investigation Informant potential investigation /8/ This case was consolidated with Porter in the court of appeals for the purpose of oral argument. In Porter, the court first held that no first party request had been made, thereby rendering the Privacy Act exemptions inapplicable (Pet. App. 13a-19a). In dictum, the court then discussed the Privacy Act (id. at 19a-26a), and it is this part of the Porter opinion to which the court referred in its opinion in this case. In describing the court of appeals' ruling in this case, the references in the text are actually to the Privacy Act/FOIA discussion in the Porter opinion, set forth at Pet. App. 3a-26a. /9/ See H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. II, at 15 n.2 (1976); H.R. Rep. 93-1380, 93d Cong., 2d Sess. 12 (1974); S. Rep. 93-854, 93d Cong., 2d Sess. 16 (1974). /10/ Exemption 3 of FOIA, as amended in 1976, provides in pertinent part that the FOIA "does not apply to matters that are * * * specifically exempted from disclosure by statute (other than section 552b of this title)" (5 U.S.C. 552(b)(3) (emphasis added)). /11/ The history of the Privacy Act has been compiled in a single volume, Staffs of the Senate and House Comms. on Government Operations, 94th Cong., 2d Sess., Legislative History of the Privacy Act of 1974, S. 3418 (Public Law 93-579) (Comm. Print 1976) (hereinafter cited as Leg. Hist.). /12/ As we explain below (see page 29, infra), the original Senate privacy bill was amended on the Senate floor to authorize nondisclosure of this law enforcement material to the same extent as is now permissible under Exemption 7 of the FOIA. However, the Senate version did not survive for first party requests, because Congress ultimately adopted the House plan of broader protection for law enforcement files. Thus, the Senate Report accurately reflects Congress's ultimate recognition of the danger of releasing criminal justice records and its intention to authorize agencies to withhold these files. /13/ Statements by opponents of the Privacy Act exemptions in the House demonstrate an awareness of the scope of these new exemptions. Representative Koch, who believed that the criminal justice agencies should be dealt with in separate legislation, expressed the view that, until such legislation was enacted, it was "unjustifiable to exempt criminal justice systems." See 120 Cong. Rec. 40885 (1974); Leg. Hist. 999. In addition, Representative Abzug, who proposed an amendment to eliminate the privacy bill's exemption for CIA files, commented on the "grave danger inherent in granting any such broad exemption. No agency should be given a general license to exempt any and all of its records and records systems." 120 Cong. Rec. 36960 (1974); Leg. Hist. 938. The amendment was opposed and rejected. See 120 Cong. Rec. 36962 (1974); Leg. Hist. 943. /14/ In his remarks concerning the exemptions, Senator Ervin, one of the principal sponsors of the privacy legislation, stated (120 Cong. Rec. 36911 (1974); Leg. Hist. 822): (T)he bill does allow the head of an agency engaged in investigatory work for criminal law enforcement purposes to exempt the agency if he finds the provisions regulating the dissemination of these records, and so on, of individuals would impede the accomplishment of his department's professional duties or statutory duties. I think those are narrow restrictions. I think they are essential if we are going to get a bill that will command the majority of both Houses of Congress, and one that will be signed into law by the President. /15/ As enacted, Exemption (k)(2), 5 U.S.C. 522a(k)(2), covers certain investigatory material compiled for law enforcement purposes that is not included within Exemption (j)(2). /16/ Moreover, this case raises none of the concerns that led Congress to overrule the decision in Robertson. Exemption (j)(2) does not grant agency heads carte blanche to withhold any records they please from among a broad range of materials that may be filed with or generated within their agencies. Instead, this statute specifically identifies the types of sensitive law enforcement records about which Congress was concerned and authorizes certain criminal justice heads to prevent access to those materials only. /17/ Similarly, in Duffin v. Carlson, 636 F.2d 709, 711 (1980), a panel of the D.C. Circuit stated in dictum: "From the Privacy Act's prohibition it can be strongly argued that Congress foreclosed disclosure of the same confidential information under the Freedom of Information Act. Why would Congress in one Act categorically prohibit disclosure of information furnished by informants and in another Act compel disclosure of the same confidential information?" /18/ The opening portion of Section (b) states in pertinent part: "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 (permissible under one of the 12 exceptions)." 5 U.S.C. 552a(b) (emphasis added). /19/ The D.C. Circuit in Greentree questioned why subsection (b)(2) was included in the Privacy Act if the exemptions in that Act are FOIA Exemption 3 statutes. See 674 F.2d at 79. The answer is that, without subsection (b)(2), Section (b) of the Privacy Act would constitute a FOIA Exemption 3 statute with respect to third party requests. Congress apparently believed that subsection (b)(2) was necessary to preserve existing third party access rights. See pages 37-41, infra. Thus, contrary to the implication in Greentree, a holding that Exemption (j)(2) is a FOIA Exemption 3 statute with respect to first party requests would not diminish the role of subsection (b)(2) in fulfilling its own separate purpose concerning third party requests. /20/ Section 205(b) stated (S. 3418, supra, at 47 (Sept. 26, 1974); Leg. Hist. 143 (emphasis omitted)): Nothing in this Act shall be construed to permit the withholding of any personal information which is otherwise required to be disclosed by law or any regulation thereunder. /21/ It is important to note, however, that when the Senate privacy bill containing Sections 202(c) and 205(b) was reported out of committee in September 1974, FOIA Exemption 7, relating to law enforcement files, had not yet been amended. (The amendment to Exemption 7 was not enacted until November 1974, when Congress overrode a presidential veto.) Thus, although the original Senate version of the privacy legislation would have required disclosure of law enforcement files under the FOIA, at that time FOIA Exemption 7 was interpreted as being quite broad in scope and, accordingly, few such files were subject to release. See page 43, infra. /22/ The original House bill contained a provision similar to subsection (b)(2) as ultimately enacted. See subsection (b)(2) of H.R. 16373, 93d Cong., 2d Sess. 4-5 (Aug. 12, 1974); Leg. Hist. 242-243. This provision was deleted by the House Committee. /23/ This reading of the legislative history is buttressed by Congress's enactment of Section (q) of the Privacy Act, 5 U.S.C. 552a(q). As the Seventh Circuit pointed out in Shapiro v. DEA, 721 F.2d at 221 (emphasis in original; footnotes omitted): Where Congress intended to retain provisions in the Senate bill that outlined other aspects of the relationship between the Privacy Act and the FOIA, it did so without qualification. For example, the original Senate version contained a provision that stated that an agency could not use FOIA exemptions to deny disclosure under a Privacy Act request, see S. 3418, 93d Cong., 2d Sess. Section 205(a), reprinted in (Leg. Hist.) 143. The final Act retained this provision in Section (q) without any limiting provisos. See also Painter v. FBI, 615 F.2d at 690-691. /24/ Moreover, the third party anomaly assumes that all other FOIA exemptions would be inapplicable. /25/ Indeed, the 1974 amendment to Exemption 7 was for the express purpose of responding to four decisions of the D.C. Circuit that had given a broad reading to Exemption 7. See FBI v. Abramson, 456 U.S. at 627 n.11; NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 227-229 (1978). /26/ The court in Greentree observed (674 F.2d at 79) that, even if the Privacy Act exemptions are FOIA Exemption 3 withholding statutes, those exemptions could be avoided by a calculating requester who uses an agent to take advantage of the third party anomaly. Under such a scheme, a requester who could not obtain his own file could ask a friend or cellmate to request the file under the FOIA, and the subject would then send a letter to the agency waiving any privacy interest. There is no mention of this sham request ploy in the legislative history of the Privacy Act and it therefore sheds no light on the issue under consideration. This hypothetical scheme raises a wholly separate question as to whether an agency must honor such a request. Cf. Doyle v. United States Department of Justice, 668 F.2d 1365 (D.C. Cir. 1981), cert. denied, 455 U.S. 1002 (1982) (court upheld denial of FOIA request because requester was a fugitive from justice). That question should be reserved for a different lawsuit because its resolution would reveal nothing about whether Congress intended the Privacy Act to be an Exemption 3 statute. /27/ This letter from Senator Kennedy cannot be viewed as persuasive evidence of congressional intent because it was not written until nine months after the Privacy Act was enacted. See CPSC v. GTE Sylvania, Inc., 447 U.S. at 118 n.13; see also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979). Moreover, the letter represents the view of a single legislator; because the ideas expressed in the letter were not stated during consideration of the privacy legislation and other members of Congress had no opportunity to voice their agreement or disagreement, it is of no value as an indicator of congressional intent. /28/ It is true that the government took the opposite position in litigation in the district court in Greentree and other cases. However, after the Seventh Circuit's ruling in Terkel v. Kelly, 599 F.2d 214 (1979), cert. denied, 444 U.S. 1013 (1980), the Fifth Circuit's decision in Painter v. FBI, supra, and the district court's decision in Greentree, Department of Justice officials reexamined the position that the government had been taking in litigation and concluded that the FOIA could not be used to evade the Privacy Act access exemptions. This conclusion also led the Department to delete the regulation (28 C.F.R. 16.57) stating that the Department would exercise its discretion to disclose to first parties information exempt under the Privacy Act but otherwise disclosable under the FOIA. See 49 Fed. Reg. 12248, 12252 (1984). /29/ The fact that OMB did not issue its new guideline until after the issue had been litigated in this and other cases is of no consequence. Congress authorized OMB to issue guidelines and regulations for use by agencies in implementing the Privacy Act. Pub. L. No. 93-579, Section 6, 88 Stat. 1909. Even if the new guideline was a response to this and other lawsuits, that demonstrates only that these suits brought to OMB's attention the fact that its earlier guideline did not thoroughly consider the complex question of statutory construction presented here. Thus, when OMB revised its guideline to reflect congressional intent, "it was doing no more than the task which Congress had assigned it." United States v. Morton, No. 83-916 (June 19, 1984), slip op. 13 n.21. APPENDIX