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PORTER v. UNITED STATES DOJ

November 29, 1982

Judith R. PORTER et al.,
v.
UNITED STATES DEPARTMENT OF JUSTICE



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This case presents the difficult question of whether documents should be released under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). The plaintiffs assert that information pertaining to them should be disclosed pursuant to the FOIA. The defendant asserts that the documents sought are exempt from disclosure pursuant to the Privacy Act, 5 U.S.C. § 552a (PA), considered independently or in conjunction with Exemption 3 of the FOIA, 5 U.S.C. § 552(b) (3), and pursuant to the national security exemption, 5 U.S.C. § 552(b) (1). Presently before the court is the motion of the defendant to dismiss, or in the alternative, for summary judgment. For the reasons which follow, the motion for summary judgment is granted.

 The plaintiffs, Gerald and Judith Porter, learned sometime before March 18, 1981 that the Federal Bureau of Investigation (FBI) had a dossier on one or both of them. On March 18, 1981, they filed a request pursuant to the FOIA, requesting that a search of the records of the FBI be made for material pertaining to either or both of them and that such existing material be released to them. A search was made and the FBI determined that a file on plaintiff Judith did exist. The FBI also found cross-references to plaintiff Gerald. On June 18, 1981, the FOIA request was rejected at the agency level. After an appeal was denied, plaintiffs instituted this suit seeking release of the information. The plaintiffs claim that the exemption under the PA and the national security exemption are inapplicable. They further argue that the defendant should be estopped from arguing any exemption other than the one relating to national security, since this was the only exemption claimed at the administrative and appellate levels.

 This court held an in camera inspection to determine whether or not the classification asserted by defendant in its claims for exemption status under the PA was justified. We determined that the classification was justified. Therefore, the factual matters having been resolved, we turn to the legal issues presented.

 There are compelling competing interests involved in the legal issues. The FOIA, itself, was designed to give United States citizens access to information pertaining to those citizens gathered by the Government. The exemptions provided under the FOIA were designed with the realization that the Government has competing interests in enforcing the law and protecting national security which preclude the disclosure of that information.

 Exemption 3 of the FOIA, 5 U.S.C. § 552(b) (3), exempts from release matters that are specifically exempted from disclosure by certain statutes other than the FOIA. Generally speaking, a statute may serve as a basis for withholding under Exemption 3 if it is of the following character:

 
. . . the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.

 American Jewish Congress v. Kreps, 187 U.S. App. D.C. 413, 574 F.2d 624, 628-9 (D.C.Cir.1978).

 A growing number of courts have held that the exemptions of PA constitute either an independent withholding statute or a statute qualifying for withholding under Exemption 3 of the FOIA. Terkel v. Kelly, 599 F.2d 214 (7th Cir.1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 662, 62 L. Ed. 2d 642 (1980); Painter v. FBI, 615 F.2d 689 (5th Cir.1980); Heinzl v. Immigration and Naturalization Service, No. C 80-1210 SAW (N.D.Cal. Dec. 18, 1981).

 In Terkel, supra, the Court of Appeals for the Seventh Circuit affirmed the FBI's withholding of certain materials pursuant to Exemption (k) (5) of the PA, 5 U.S.C. § 552a(k) (5), by stating the following:

 599 F.2d at 216. Subsequently, in Painter, supra, the Court of Appeals for the Fifth Circuit held that the exemption provisions of the PA constituted a withholding statute under Exemption 3 of the FOIA. In reaching this conclusion, the court noted that, "subsequent to enactment of the FOIA, Congress passed two other open records acts," i.e., the PA and the Government in the Sunshine Act, 5 U.S.C. § 552b; that both of these statutes "overlapped in places" with the FOIA; and that Congress had demonstrated its awareness of this fact by including provisions in both the new statutes that "specifically indicated when the exemptions of one act should not apply to disclosures mandated by another." 615 F.2d at 690-1 (referring, inter alia, to 5 U.S.C. § 552a(q)). Relying on Congress' awareness of "the interplay between these various open record acts," the court declined "inferentially to limit the scope of 5 U.S.C. § 552(b) (3) where Congress has not specifically indicated an intent to do so." Id. at 691.

 A different approach was used in Greentree v. U.S. Customs Service, 218 U.S. App. D.C. 231, 674 F.2d 74 (D.C.Cir.1982), a case which plaintiffs cite for the proposition that the PA is not a withholding statute within the contemplation of Exemption 3 of the FOIA. In Greentree, the Court of Appeals for the District of Columbia circuit sought to reverse the trend of Terkel, Painter and ...


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