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Provenzano v. United States Department of Justice

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


November 10, 1983

PROVENZANO, ANTHONY, APPELLANT
v.
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

SUR PETITION FOR REHEARING.

Seitz, Chief Judge, Aldisert, Adams, John J. Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges, and Mansmann, District Judge.*fn* Judges Adams, Weis, Garth and Becker would grant rehearing. Judge Weis and Judge Garth, join in this statement.

Author: Gibbons; Adams

The petition for rehearing filed by appellant in the above entitled case, 717 F.2d 799 (1983), having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.

Judges Adams, Weis, Garth and Becker would grant rehearing.

By the Court,

JOHN J. GIBBONS

Judge

Statement sur denial of petition for rehearing

GIBBONS, Circuit Judge

The United States Department of Justice has petitioned for rehearing in banc in the above entitled case. The case was consolidated for argument with Porter v. United States Department of Justice, 717 F.2d 787 (3d Cir. 1983). Both cases were argued on August 4, 1983 and opinions in both were filed on September 15, 1983. The main opinion was written in the Porter case, and the Provenzano per curiam opinion merely cross-referenced to that opinion. On September 26, 1983 the Department of Justice moved in both cases for an extension of time within which to file a petition for rehearing, and motions were granted in both cases, extending the time for filing a petition for rehearing to October 20, 1983. No petition for rehearing was filed in the Porter case, howevber, and the Department of justice has tendcered no explanation for its election to petition for rehearing only in Provenzano although the legal issue in both cases is identical.

STATEMENT SUR DENIAL OF PETITION FOR REHEARING

ADAMS, Circuit Judge.

Anthony Provenzano, who has a host of serious convictions on his record and who admittedly has been involved in organized crime, has requested that the government turn over all FBI and Department of Justice files relating to him and to his activities. Although 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 Provenzano's request. 5 U.S.C. ยง 552(b)(3) (1977). That exemption incorporates into FOIA other statutes providing for non-disclosure, and exemption (j)(2) of the Privacy Act, 5 U.S.C. 552a(j)(2) (1977), seems to allow directors of criminal enforcement agencies to exempt entire "systems of records" from first-party access.

Since there is now a square conflict among the Circuits on this issue -- the Fifth and Seventh Circuits going one way and the District of Columbia Circuit going the other -- and since this matter is of considerable importance to the administration of criminal justice, I respectfully suggest that the question presented requires the attention of the entire court. See Greentree v. United States Customs Service, 218 U.S. App. D.C. 231, 674 F.2d 74 (D.C. Cir. 1982); Painter v. FBI, 615 F.2d 689 (5th Cir. 1980); 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).

It is difficult for me to believe that in enacting FOIA and the Privacy Act, Congress intended to make it possible for someone in the position of Provenzano to require that the FBI and the Department of Justice turn over an entire system of records. An open government is surely one of the fundamental prerequisites of democracy; that is not to say, however, that law enforcement agencies, under the supervision of the legislature and the courts, may not legitimately under law limit access to investigative material.

Judge Weis and Judge Garth join in this statement.


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