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 Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

   Reply Memorandum for the Petitioners

   Respondent concedes (Br. in Opp. 3) that there is a clear conflict
among the circuits on the question presented in the petition.
Nonetheless, he urges the Court not to grant the petition because (1)
the government did not present its legal arguments at the
administrative level (Br. in Opp. 1-2);  (2) the issue is not
sufficiently important to warrant review (Br. in Opp. 4);  and (3)
many of the records sought by respondent may be exempt from disclosure
under FOIA exemptions other than Exemption 3, which, we have argued,
incorporates the withholding provisions of the Privacy Act and bars
release of any records pertaining to respondent (Br. in Opp. 5).
Respondent's arguments are without merit.

   1. As we noted in the petition (at 6-7), because of a substantial
backlog of records requests, the Criminal Division of the Department
of Justice was unable to process respondent's FOIA request before
respondent filed his action in district court seeking release of his
records.  Similarly, the Federal Bureau of Investigation did not
process the documents and administratively deny respondent's FOIA
request prior to commencement of this suit (see C.A. App. 41a-43a).
Because of the delays in processing respondent's requests, the
government had no occasion to raise its legal argument against
disclosure at the administrative stage.

   Moreover, even if the government had had an opportunity to raise
Privacy Act Exemption (j)(2) and FOIA Exemption 3 as grounds for
nondisclosure at the administrative level and failed to do so, that
would not bar the government from raising this argument in court.
Both the FOIA and the Privacy Act provide for de novo review by the
district court of an agency decision to withhold records.  See 5
U.S.C. 552(a)(4)(B);  5 U.S.C. 552a(g)((3)(A).  In light of these
provisions, any failure by an agency to raise a particular reason for
withholding at the administrative level is of no consequence, because
the district court must decide on the basis of the arguments presented
in court whether nondisclosure is appropriate under the law.  See Mead
Data Central, Inc. v. Department of Air Force, 566 F.2d 242, 251 (D.C.
Cir. 1977);  Illinois Institute for Continuing Legal Education v.
Department of Labor, 545 F. Supp. 1229, 1236 (N.D. Ill. 1982.)

   2. In support of his assertion that, despite the conflict among the
circuits, the question presented does not warrant review, respondent
cites (Br. in Opp. 2, 4) a Department of Justice regulation (28 C.F.R.
16.57) that states that, in its discretion, the Department will
generally provide the fullest possible access under both the FOIA and
the Privacy Act.  Respondent appears to contend that, because the
Department has rarely chosen to waive this policy, the issue at stake
must be unimportant.

   Respondent's claim is mistaken for two reasons.  First, although
possibly few in number, cases such as this one, involving requests for
many thousands of pages of documents, do arise.  If the government
prevails here, it may save considerable agency resources in such cases
by making full FOIA processing unnecessary.

   Second, the Department of Justice has proposed rescinding the
regulation cited by respondent.  See 48 Fed. Reg. 35892-35903 (1983).
Thus, the Department's past practice with respect to processing first
party requests is irrelevant.  If the regulation were to be rescinded
and this Court were to agree with our argument that Privacy Act
Exemption (j)(2) is a withholding statute within the meaning of FOIA
Exemption 3, the administrative burden on federal law enforcement
agencies of processing the many thousands of first party FOIA requests
received annually from federal prisoners such as respondent would be
considerably lightened.

   3. The fact, alluded to by respondent (Br. in Opp. 5), that many of
the records he has requested may eventually be held nondisclosable on
the basis of a FOIA exemption other than Exemption 3 is not a valid
reason for declining review.  Indeed, this Court on several occasions
has granted certiorari in the face of identical arguments.  See CIA v.
Sims, cert. granted, No. 83-1075 (Mar. 5, 1984);  Department of State
v. Washington Post Co., cert. granted, No. 82-1925 (Oct. 3, 1983);
FAA Administrator v. Robertson, 422 U.S. 255 (1975).  Regardless of
the possible availability of other FOIA exemptions, it is important to
resolve the threshold argument that Privacy Act Exemption (j)(2) and
FOIA Exemption 3 bar disclosure.  If this argument is accepted, it
would obviate the need to examine the applicability of specific FOIA
exemptions to each of the requested records.  /1/

   For the foregoing reasons and the reasons stated in the petition,
it is respectfully submitted that the petition for a writ of
certiorari should be granted.

   REX E. LEE

      Solicitor General

   MARCH 1984

   /1/ Respondent suggests (Br. in Opp. 3) that the instant petition
should be denied because the Court may resolve the issue in Shapiro v.
DEA, petition for cert. pending, No. 83-5878.  As we noted in our
response in Shapiro, however, there is a substantial question whether
one of the petitioners in that case is entitled to proceed in forma
pauperis.  Accordingly, we have suggested that the Court defer
disposition of the petition in Shapiro pending its disposition of the
instant petition.