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 The Solicitor General, on behalf of the United States Department of Justice, the Attorney General of the United States, and the Director of the Federal Bureau of Investigation, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-2a) is reported at 717 F.2d 799. The opinion of the court of appeals in Porter v. Department of Justice (App., infra, 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 (App., infra, 27a-30a) is not yet reported. The opinion of the district court (App., infra, 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. The jurisdiction of this Court is invoked under 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 at App., infra, 60a-85a. QUESTION PRESENTED Whether Exemption (j)(2) of the Privacy Act, 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 1. a. The Freedom of Information Act, 5 U.S.C. 552, which is a general disclosure statute pertaining to all executive agency records of the federal government, 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 recently 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, 445 U.S. 345, 352 (1982). The primary FOIA exemption involved in this case is Exemption 3, 5 U.S.C. 552(b)(3). 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, to qualify under Exemption 3, a statute must either define particular criteria for withholding or set forth the particular types of matters to be withheld. /1/ 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. b. The Privacy Act, 5 U.S.C. 552a, was enacted in 1974, shortly after the 1974 FOIA amendments. Among the Act's several purposes are preventing the 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 a "system of records," 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, to use the terminology of the Privacy Act, 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 or personal identifier. It also permits individuals to request that corrections be made to their records. See 5 U.S.C. 552a(d)(2). The Privacy Act provides an access system for first party requests only. /3/ The scope of an individual's right of access to his own records may be limited by agencies through exemptions found in Sections (j) and (k) of the Privacy Act. Exemption (j), 5 U.S.C. 552a(j), permits the heads of certain agencies maintaining systems of records to promulgate rules exempting entire systems of records from access. Thus, if a request is made for a record within an exempted system of records, the record may be withheld without further inquiry. Because of this feature, Privacy Act Exemption (j) is quite different from the FOIA exemptions, which generally require an agency to comb each requested document and to 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 that are 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 the 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 and procedures for gaining access to agency records (5 U.S.C. 552a(e)(1), (e)(4)(G) and (H)). c. 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, if an individual requester is precluded from access to his own records under the Privacy Act, he also would be precluded from access to those records 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 could 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. 2. Respondent Anthony Provenzano is a former officer of Local 560 of the International Brotherhood of Teamsters in New Jersey. During the past 20 years, respondent 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 Organization 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 and 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). a. In April 1978, respondent sent requests to the Department of Justice and the Federal Bureau of Investigation for all files and documents indexed under his name, or containing his name (App., infra, 32a). 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 (C.A. App. 41a). /4/ 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. 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 (App., infra, 33a). The Department indicated that if he so chose, respondent could treat this response as a denial of his administrative appeal (C.A. App. 17a). b. 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 (App., infra, 34a). The Criminal Division affidavit stated (id. at 34a-35a) that all of these records systems were by regulation exempt from access under the Privacy Act. See 28 C.F.R. 16.91. 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 (App., infra, 34a). The FBI reported (id. at 35a) that its records pertaining to respondent had also been exempted by regulation from access under the Privacy Act. See 28 C.F.R. 16.96. The government contended that, because the relevant records were exempt from disclosure under the Privacy Act, they also were exempt from disclosure under the FOIA. c. The district court granted the government's motion for summary judgment (App., infra, 31a-41a). Noting 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 concluded that Exemption (j)(2) is a withholding statute within the meaning of FOIA Exemption 3, and that the government had therefore properly declined to release the documents requested by respondent. The court observed that the Fifth Circuit had reached a similar conclusion, with respect to another Privacy Act exemption, in Painter v. FBI, 615 F.2d 689 (1980) (App., infra, 39a). Although the court was aware that the District of Columbia Circuit had rejected this view in Greentree v. U.S. Customs Service, 674 F.2d 74 (1982), it disagreed with the analysis in Greentree (App., infra, 39a). 3. a. The court of appeals reversed (App., infra, 1a-2a), relying on its opinion in the companion case of Porter v. U.S. Department of Justice, 717 F.2d 787 (1983) (App., infra, 3a-26a). /5/ Initially, the court noted that there is disagreement among the circuits regarding the relationship between the FOIA and the Privacy Act (App., infra, 19a-20a). The court explained that the D.C. Circuit, in Greentree v. U.S. Customs Service, supra, 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, supra, 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 (App., infra, 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 (App., infra, 21a). The court thus found it unnecessary to analyze the Privacy Act in relation to the criteria of FOIA Exemption 3 (App., infra, 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). b. The government filed a petition for rehearing with a suggestion that the case be heard en banc. The court, by a 6-4 vote, denied the petition without an opinion (App., infra, 27a-28a). In dissent, three judges expressed the view 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 Freedom of Information Act (FOIA) authorizes the government to deny (respondent's) request" (App., infra, 29a). These dissenting judges would have granted rehearing because they found that there is a "square conflict" among the circuits and "this matter is of considerable importance to the administration of criminal justice" (ibid.). 4. Shortly after rehearing was denied in this case, the Seventh Circuit, in Shapiro v. DEA, No. 82-2818 (Nov. 16, 1983), petition for cert. pending, No. 83-5878, 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. /6/ REASONS FOR GRANTING THE PETITION This case presents an important question concerning the interrelationship of the two principal statutes governing access to government records. The question is now the subject of an acknowledged conflict among four courts of appeals. Moreover, the decision below is wrong because it is contrary to the plain wording of the Privacy Act, it disregards congressional intent, and it ignores the critical FOIA exemption at issue here. The particular case before the Court is important because it involves a request for thousands of pages of criminal law enforcement documents that are exempt from disclosure under the Privacy Act. /7/ If, despite the Privacy Act exemption, the processing of these documents is nevertheless required under the FOIA, this would necessitate the expenditure of massive resources by both the Criminal Division and the FBI. Thus, resolution of the question presented will make a great difference in the way the particular FOIA request at issue is treated. Of course, apart from its impact on this case, the issue here "is of considerable importance to the administration of criminal justice" generally (App., infra, 29a) (Adams, J., dissenting from the denial of rehearing), because it will determine how government agencies with criminal justice responsibilities must process the thousands of first party requests they receive each year. Furthermore, under the court of appeals' ruling, law enforcement records that Congress expressly authorized to be withheld under the Privacy Act would nevertheless have to be released under the FOIA if no FOIA exemption were available to bar disclosure. Accordingly, we submit that this case warrants plenary review by this Court. 1. There is an acknowledged, serious conflict among the courts of appeals on the question of the proper relationship between the Privacy Act and the FOIA. Both the D.C. Circuit, in Greentree v. U.S. Customs Service, supra, and the Third Circuit here have held that the Privacy Act and the FOIA must be considered completely independent of each other, so that material exempt from access under the former may nonetheless be sought under the latter. By contrast, in Painter v. FBI, supra, the Fifth Circuit observed that "Congress was clearly aware that these various open records acts overlapped in places" (615 F.2d at 690). The court noted (ibid.) that when Congress did not intend the exemptions in one act to affect disclosure under the other, it specifically so provided. See 5 U.S.C. 552a(q). Because Congress did not exclude FOIA-authorized releases from the Privacy Act's first party disclosure prohibitions in Exemptions (j) and (k), and because these exemptions come within the plain wording of FOIA Exemption 3, the Fifth Circuit concluded that "material exempted from disclosure under the provisions of the Privacy Act are matters 'specifically exempted from disclosure by statute' under (FOIA Exemption 3)." 615 F.2d at 691 n.3. Most recently, the Seventh Circuit has ruled, in a case nearly identical to this one, that Privacy Act Exemption (j)(2) is a withholding statute within the meaning of FOIA Exemption 3. Shapiro v. DEA, supra. /8/ The Seventh Circuit found that the wording of Privacy Act Exemption (j)(2) meets the criteria of FOIA Exemption 3 and that the legislative history of the Privacy Act shows that Congress intended the Privacy Act access exemptions to the broader than the FOIA exemptions; the court concluded that its ruling would give full meaning to both acts. /9/ It is important that this Court resolve this conflict because it concerns the method by which various criminal justice agencies such as the FBI, Drug Enforcement Administration, Criminal Division, Customs Service, and Secret Service respond to the thousands of requests filed each year by individuals seeking their own agency records. /10/ If Privacy Act Exemption (j)(2) is a FOIA Exemption 3 statute, such requests may be processed expeditiously because the criminal investigatory records sought will usually be exempt under agency regulations promulgated pursuant to Exemption (j)(2). If Exemption (j)(2) is not such a statute, a far more difficult and time consuming process would be necessary because then the agency ordinarily would have to examine each document line-by-line to determine if specific FOIA exemptions apply in addition to Privacy Act Exemption (j)(2). And if no FOIA exemption were available, law enforcement records that Congress authorized to be withheld from disclosure under the Privacy Act would have to be released under the FOIA. 2. The decision below is contrary to the plain language of the Privacy Act, fails to give full effect to the clearly expressed intent of Congress, and unjustifiably disregards the FOIA exemption at issue. a. The court of appeals, like the D.C. Circuit in Greentree, believed that the issue raised in this case could be resolved simply by reference to subsection (b)(2) of the Privacy Act, 5 U.S.C. 552a(b)(2), which provides that an agency may release a record about an individual when disclosure of the record would be required by the FOIA (App., infra, 21a). While this conclusion may perhaps have surface appeal, it cannot withstand analysis because it is directly contrary to the plain wording and structure of the Privacy Act. As previously noted, Section (b) of the Privacy Act states a general rule that an agency may not release records about an individual, and it then lists 12 exceptions to that general rule. Subsection (b)(2), upon which the court of appeals relied, is one of those exceptions. However, what the court inexplicably ignored (as did the D.C. Circuit in Greentree) is that the opening language in Section (b) states that the general nondisclosure rule of the section does not apply when an individual requests his own record or consents to release of his record. See 5 U.S.C. 552a(b). /11/ This language clearly shows that the exception contained in subsection (b)(2) does not come into play when an individual requests his own file because the introductory language of Section (b) preempts reference to the 12 exceptions listed. See Shapiro v. DEA, slip op. 9-10, 12-13. (App., infra, 50a-51a, 53a-54a). In light of this unambiguous language in the opening part of Section (b), it is difficult to understand the court of appeals' statement (App., infra, 21a) that subsection (b)(2) was intended to apply to both third party and first party requests. /12/ We submit that the court plainly erred in concluding that subsection (b)(2) governs here since the exception in that subsection has no relevance to a first party request such as that made by respondent. First party requests instead are governed by Section (d), which contains no provision comparable to subsection (b)(2) and is expressly limited by the exemptions authorized in Section (j) and (k). b. The legislative history of the Privacy Act reveals a clear intent by Congress to empower certain agencies to protect their "highly sensitive and usually confidential information collected by law enforcement officers in anticipation of criminal activity." S. Rep. 93-1183, 93d Cong., 2d Sess. 23 (1974). In reviewing the section in the House version of the privacy legislation that contained an exception from disclosure for CIA and criminal justice records, the House Government Operations Committee concluded 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. 18-20 (1974). The congressional debates on the privacy legislation confirm that Congress plainly intended to grant federal criminal justice agencies the authority necessary to protect their records fully. See, e.g., 120 Cong. Rec. 36644 (1974) (remarks of Rep. Moorhead); id. at 36650-36651, 36962 (Rep. Ichord); id. at 36656 (Rep. Holifield); id. at 36911 (Sen. Ervin). In addition, the fact that Congress intended the Privacy Act to provide broader protection for sensitive records than the FOIA is demonstrated by Congress's rejection of a provision in the Senate version of the privacy legislation that would have made the Privacy Act's law enforcement records exemption coextensive with that of the FOIA. The Senate bill initially contained a broad exemption for law enforcement investigative and intelligence files. See Section 203(b) of S. 3418 (93d Cong., 2d Sess. (1974)). On the Senate floor, this original language was replaced with narrower language substantially similar to the current FOIA Exemption 7, 5 U.S.C. 552(b)(7). Ultimately, however, Congress rejected this limited Senate language in favor of the broader law enforcement records exemption now in the Privacy Act. See 5 U.S.C. 552a(j)(2) and (k)(2). c. Not only did the court of appeals ignore the plain language of Section (b) and the history of the Privacy Act, it also disregarded Exemption 3 of the FOIA. Contrary to the court's belief that Exemption 3 is irrelevant, we submit that the very heart of this case is whether Privacy Act Exemption (j)(2) satisfies the criteria set out in Exemption 3. The court of appeals focused its attention on whether the Privacy Act repealed the FOIA (App., infra, 21a-24a). Exemption 3 of the FOIA makes that inquiry unnecessary, however, because it specifically incorporates into the FOIA other statutes that provide for nondisclosure. The "repeal" analysis used by the court here would require that, whenever an agency asserts that a 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. The court of appeals also attempted to avoid reference to FOIA Exemption 3 by pointing to language in Privacy Act Exemption (j) stating that the exemption authorizes specified agencies to overcome certain requirements "of this section," i.e., the Privacy Act. See 5 U.S.C. 552a(j). The court therefore concluded that Congress meant the Privacy Act exemptions to govern access only pursuant to the Privacy Act (App., infra, 21a). 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 exemptions that are broader 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. In order to avoid attributing this bizarre result to Congress, the Privacy Act exemptions must be examined with reference to FOIA Exemption 3. Moreover, a simple reading of Exemption (j)(2) makes clear that it comes within Exemption 3 because it states in detail the particular types of matters that the relevant agencies have the discretion to withhold. See Shapiro v. DEA, slip op. 8 (App., infra, 49a); Painter v. FBI, 615 F.2d at 691 n.3. /13/ d. Furthermore, the decision below is contrary to settled principles of statutory construction because it fails to interpret the Privacy Act and the FOIA in such a way that the exemptions in each have meaning. See, e.g., Morton v. Mancari, 417 U.S. 535, 551 (1974). If Privacy Act Exemption (j)(2) is a FOIA Exemption 3 statute, no part of either statute is rendered meaningless. The Privacy Act exemptions would cover only first party requests for materials that constitute Privacy Act "records," while the FOIA exemptions would continue to govern exclusively all third party requests and all requests for non-Privacy Act material. Under the court of appeals' view, however, the Privacy Act access exemptions would have no effect beyond the scope of the FOIA exemptions. See Shapiro v. DEA, slip op. 11, 17 (App., infra, 52a, 58a). This is plainly not what Congress intended, as shown by the fact that it devoted considerable attention to fashioning the Privacy Act exemptions, which it made broader than the FOIA exemptions. The court of appeals appears to have overlooked this crucial point. The court expressed the view that its interpretation of the FOIA and the Privacy Act made the two acts "perfectly reconcilable" (App., infra, 22a). As noted above, however, the court's holding leaves the Privacy Act exemptions devoid of any purpose with regard to access. /14/ 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." e. In Greentree v. U.S. Customs Service, supra (which was relied upon by the court of appeals here), the D.C. Circuit based its ruling in large measure on a theory labeled the "third party anomaly." See 674 F.2d at 79-80. This theory begins with the premise that access under the FOIA is greater than under the Privacy Act. An individual making a first party request for a document will be denied access if the Privacy Act access exemptions provide for withholding and they trigger FOIA Exemption 3. However, a third party request under the FOIA for the same document could conceivably be granted because Privacy Act Exemptions (j) and (k) have no effect on Section (b) of that Act, and thus are irrelevant to third party requests. See also 5 U.S.C. 552a(b)(2). 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 (5 U.S.C. 552(b)(6) and (7)(C)), or other FOIA exemptions. Under the balancing test used to implement these exemptions, such an invasion of privacy is permitted only in those cases in which the interest in preserving privacy is outweighed by a strong countervailing public interest in disclosure. See Department of State v. Washington Post Co., 456 U.S. 595 (1982); Department of Air Force v. Rose, 425 U.S. 352, 370-376 (1976). Furthermore, 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 on the intent of Congress in enacting the Privacy Act. See Shapiro v. DEA, slip op. 16 (App., infra, 57a). We have found no evidence that Congress was aware that such an anomaly could arise. The third party anomaly theory therefore shows nothing about congressional intent, which is the crux of the inquiry here. CONCLUSION The petition for a writ of certiorari should be granted. 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 DECEMBER 1983 /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. /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 petition. /4/ "C.A. App." refers to the appendix in the court of appeals. /5/ 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 (App., infra, 13a-19a). In dictum, the court then discussed the Privacy Act (App., infra, 19a-26a), and it is this part of the Porter opinion to which the court referred in its brief per curiam opinion in this case. Although we disagree with the court's conclusion in Porter that no first party request is involved, we do not believe that this issue warrants further review. Accordingly, the government has decided to litigate Porter in the district court with regard to the specific FOIA exemptions implicated in that 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, which we have set forth in the Appendix, infra, 3a-26a. /6/ Because this opinion is not yet published, we have reprinted it in the Appendix, infra, 42a-59a. 4 /7/ The request here involves approximately 43,000 pages of Criminal Division records and more than 15,000 pages of FBI records. /8/ In so ruling, the Seventh Circuit reaffirmed its earlier conclusion that "the two statutes must be read together, and that the Freedom of Information Act cannot compel the disclosure of information that the Privacy Act clearly contemplates to be exempt." Terkel v. Kelly, 599 F.2d at 216. /9/ In addition, a number of district courts have held either that the Privacy Act is an Exemption 3 statute under the FOIA, or that the FOIA should not be read to make the Privacy Act exemptions meaningless. See Anderson v. Huff, No. 3-82-52 (D. Minn. June 8, 1982); Heinzl v. INS, No. C-80-1210 (N.D. Cal. Dec. 18, 1981); Rachel v. Department of Justice, No. 83-C-0434 (N.D. Ill. Aug. 1, 1983); Turner v. Ralston, 567 F. Supp. 606 (W.D. Mo. 1983); Martin v. FBI, No. 83-C-123 (N.D. Ill. Sept. 30, 1983). /10/ In 1982, the FBI received 10,623 first party disclosure requests. (This figure includes 1,105 reopened requests.) The Criminal Division and the DEA received 709 and 1,184 such requests in that period. See U.S. Department of Justice, Freedom of Information Act Annual Report 1982, at 18 (June 28, 1983). /11/ 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). /12/ Moreover, the history of subsection (b)(2) supports the plain language of the statute and reveals that this subsection was specifically designed to accommodate third party requests. See S. Rep. 93-1183, 93d Cong., 2d Sess. 71 (1974), indicating that an earlier version of subsection (b)(2) was included in the privacy legislation "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." /13/ We argued in the court of appeals that, even if Privacy Act Exemption (j)(2) is not a FOIA Exemption 3 statute, the FOIA should not be used to override the clear provisions of the Privacy Act. The court of appeals did not specifically address this point and, accordingly, we have not presented it as a separate question warranting plenary review. It should be noted, however, that the Privacy Act establishes a self-contained statutory scheme, more specific than the FOIA, governing access to certain types of agency records. Therefore, we submit that the Privacy Act should be given its full effect regardless of the FOIA. Cf. King v. IRS, 688 F.2d 488, 495-496 (7th Cir. 1982); White v. IRS, 707 F.2d 897, 900 (6th Cir. 1983); Zale Corp. v. IRS, 481 F. Supp. 486, 489 (D.D.C. 1979). /14/ It is true that Exemption (j)(2) exempts agencies from requirements of the Privacy Act other than those governing access. See 5 U.S.C. 552a(j). However, Exemption (j) contains a detailed list of the specific provisions of the Privacy Act that it covers, and one of those is the provision regarding access. In addition, as the legislative history of the Privacy Act makes clear, Congress intended to provide criminal justice agencies with the means to prevent access to their sensitive files. Therefore, to say that Exemption (j) is left with some meaning for Privacy Act functions other than those dealing with access is no answer to the point that the decision here renders meaningless a central aspect of the Privacy Act. See Shapiro v. DEA, slip op. 13-14 (App., infra, 54a-55a). APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.