MEMORANDUM AND ORDER
Plaintiff, Robert T. Patton, Jr., after having been rejected for employment by the Federal Bureau of Investigation (FBI), on July 2, 1982, requested access to the file maintained by the FBI concerning his application. On November 24, 1982, the FBI released eighty-one pages of material in response to plaintiff's request but withheld approximately ten pages contending they were exempt from release under the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 and the Privacy Act, 5 U.S.C. § 552a. Plaintiff filed this action on April 9, 1984, alleging that he was entitled to the information under FOIA and the Privacy Act and asked the court to order such disclosure. On October 9, 1984, the defendants filed a motion for summary judgment, together with a personal public affidavit of James S. Tatman, in which he set forth the basis for nondisclosure based upon his review of the records. Subsequently, defendants filed three In Camera Declarations in support of their motion. The court has carefully reviewed the public documents, the In Camera Declarations, as well as the documents withheld from plaintiff, and will grant the defense Motion for Summary Judgment.
Defendants identify seven full pages and portions of three other pages of plaintiff's file that involve confidential source material for which exemption is sought under Section (k)(5) of the Privacy Act and Sections (7)(C) and (D) of FOIA. Exemption is also claimed for three and one-half pages of testing or examination material and related information allegedly exempt under Section (k)(6) of the Privacy Act and Section (b)(2) of FOIA. Finally, three lines of one document have been deleted as third-party information which may not be released under the Privacy Act without the consent of the third party and is exempt under Sections (6) and (7)(C) of FOIA because such release would constitute an unwarranted invasion of personal privacy. Defendants concede that the recently enacted Central Intelligence Information Act, Pub.L. No. 98-477, 98 Stat. 2209, (1984) amended the Privacy Act so that no agency can withhold from an individual any record to which he is entitled under FOIA. Consequently, defendants cannot withhold any information from plaintiff unless there is an applicable exemption provision in each statute.
Section (k)(5) of the Privacy Act exempts disclosure of material which would reveal the identity of a source who was expressly promised that his identity would be held in confidence.
Similarly, Sections (7)(C) and (D) of FOIA exempt records where disclosure would constitute an unwarranted invasion of personal privacy or reveal the identity of a confidential source.
An examination of the In Camera Declarations persuades me that the requirements of both statutes have been satisfied. Confidentiality has been specifically requested by the sources of the seven full pages previously described in this memorandum. The notations on parts of the three remaining pages for which confidentiality is sought make reference to the seven full pages in such a manner that the sources of those pages could be identified by reference to the notations. It is obvious that the background, nature and circumstances surrounding the making of the notations is such that an express promise of confidentiality would be necessary before the comments would be made. Accordingly, the exemption requirements of (k)(5) of the Privacy Act were satisfied. Moreover, the deletions were appropriate under either the balancing analysis of (7)(C) or the specific language of (7)(D) of FOIA. In arriving at this result, while the Public Tatman declaration was helpful, it was the In Camera submissions which convinced me that nondisclosure was appropriate under both statutes.
B. Testing Material
5 U.S.C. § 552a(k)(6), the Privacy Act, specifically exempts from disclosure
"(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process."
Additionally, 5 U.S.C. § 552(b)(2) of FOIA states that the Act does not apply to matters that are
"(2) related solely to the internal personnel rules and practices of any agency;"